Criminal procedure code---- notes
++++++ CRIMINAL PROCEDURE CODE ++++++++
DEFINITION , OBJECT AND PURPOSE OF CRIMINAL PROCWDURE CODE, 1898.
In criminal laws pakistan penal code , defines the offences and provides their punishments, while criminal procedure code, laid down the procedure for hearing, and punishing or acquitting an accused, as the case may be.
The main object of criminal procedure code is thus to supplement the pakistan penal code, by rules of procedure with a view to prevent offences and bring offender to justice.
The object of the code is clear from its preamble, the code intended to consolidate and ammend the laws relating to the criminal procedure.
The purpose of criminal procedure code is to provide machinery for the punishment of offenders against the substantive criminal law embodied in pakistan penal code.
It can be concluded that criminal procedure code is a procedural law and substantive law, describes the formation of criminal courts, its procedure as well as classification and powers of criminal courts.
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+++++++++++++++ STRUCTURE OF COURTS IN PAKISTAN +++++++++++++++++++++++++
Supreme Court Of Pakistan...
The Supreme Court (Urdu: عدالت عظمي?) is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The Supreme Court has a permanent seat in Islamabad. It has number of Branch Registries where cases are heard. It has a number of de jure powers which are outlined in the Constitution. Through several periods of military rule and constitutional suspensions, the court has also established itself as a de facto check on military power. Supreme court of Pakistan is a highest court in the country with 17 permanent judges with a court in federal capital Islamabad and registery offices in each provincial capital Lahore, Peshawer, Quetta and Karachi. Supreme Judicial Council is a supervisory board that hears the complaints against any Judge of Supreme Court. Supreme Court of Pakistan is also a Constitutional and appellate court as well. Supreme Court has a vast powers over any judicial matter and also has a suo moto power on any issue relating to Human Rights in the country. It is also last appeal court in the country.
Federal Shariat Court of Pakistan...
The Federal Shariat Court of Pakistan was established by presidential order in 1980 with the intent to scrutinised all laws in the country that are against Islamic values. This court has a remit to examine any law that may be repugnant to the "injunctions of Islam, as laid down in the Holy Quran and the Sunnah." If a law is found to be 'repugnant', the Court is to provide notice to the level of government concerned specifying the reasons for its decision. The court also has jurisdiction to examine any decisions of any criminal court relating to the application of Islamic (hudud) penalties. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court. The Federal Shariat Court of Pakistan consists of 8 muslim judges including the Chief Justice. These Judges are appointed by the President of Pakistan, after decision is made by the Judicial Committee consisting the Chief Justice of Pakistan (Federal Shariat Court) and the Chief Justice of Pakistan . They choose from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of judges of a High Court.
Of the 8 judges, 3 are required to be Islamic Scolars/Ulema who are well versed in Islamic law. The judges hold office for a period of 3 years, which may eventually be extended by the President.
The FSC, on its own motion or through petition by a citizen or a government (federal or provincial), has the power to examine and determine as to whether or not a certain provision of law is repugnant to the injunctions of Islam. Appeal against its decisions lie to the Shariat Appellate Bench of the Supreme Court, consisting of 3 muslim judges of the Supreme Court and 2 Ulema, appointed by the President. If a certain provision of law is declared to be repugnant to the injunctions of Islam, the government is required to take necessary steps to amend the law so as to bring it in conformity with the injunctions of Islam.
The court also exercises revisional jurisdiction over the criminal courts, deciding Hudood cases. The decisions of the court are binding on the High Courts as well as subordinate judiciary. The court appoints its own staff and frames its own rules of procedure.
Lahore High Court,Lahore
Sindh High Court,Karachi
Peshawar High Court,Peshawar
Balochistan High Court,Quetta
Islamabad High Court,Islamabad
There is one High Court in each Province and one in federal capital Islamabad.High Court in Punjab is called Lahore High Court,in the province of Sindh is called Sindh High Court,in Khyber pakhtankhwa is called Peshawar High Court and in Baluchistan it is called Balochistan High Court.High court is appellate court of all civil and criminal cases in the respective province. The Constitution of Pakistan, 1956, Article 170, its text runs as:
"Notwithstanding anything contained in Article 22, each High Court shall have power throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases any Government directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part II and for any other purpose.”
District & Sessions Court...
District courts exist in every district of each province, with civil and criminal jurisdiction.In each District Headquarters, there are numerous Additional District & Session Judges who usually preside the courts.District & sessions Judge has executive and judicial power all over the district under his jurisdiction. Session court is also a trial court for heinous offences such as Murder, Rape (Zina), Haraba offences (armed robbery where specific amount of gold and cash is involved, it is also appelatte court for summary conviction offences and civil suits of lesser value. Each Town and city now has a court of Additional District & Sessions judge, which possess the equal authority over, under its jurisdiction. When it is hearing criminal cases it is called sessions court and when it is hearing civil cases it becomes District court. Executive matters are brought before the relevant District & Sessions Judge.
Civil Judge Cum Judicial Magistrate Courts...
In every town and city,there are numerous civil and judicial magistrate courts.Magistrate with power of section 30 of Cr.P.C can hear all matter and offences of criminal nature, where there is no death penalty (such as attempted murder,dacoity,robbery,extortion)under his jurisdiction but he can pass sentence only up to seven years or less.If the court thinks accused deserves more punishment than seven years then it has to refer the matter to some higher court with its recommendations.Every magistrate court is allocated a jurisdiction that is usually one or more Police Stations in the area.Trial of all non bailable offences including police remand notices,accused dischages,arrest and search warrants,bail applications are heard and decided by Magistrate Courts.Most of judicial Magistrates have powers over civil suits as well, they are uasally called Civil Judge Cum Judicial Magistrates.
Special Tribunals and Boards...
There are numerous special tribunals such as;
Income Tax Tribunals
Anti Corruption Courts
Anti Narcotics Courts
Anti terrorist Courts
Labour Relations Court
Board of Revenue.
Special Magistrate courts
All most all judges of above courts and tribunals, are of District & sessions Judges or of have same qualifications.
The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court only.Every town and city has court of family judge.In some areas, where it is only Family Court but in most areas Civil Judge Courts have been granted the powers of Family Court Judges.
Judicial Magistrates have also been empowered to hear the cases under Juvenile Act.
Appointments of Judges...
Supreme Court of Pakistan...
Prior to 18th Constitutional Amendments,appointments in Supreme Court of Pakistan were made on the recommendations of the Chief Justice of Apex court by President of Pakistan.Many times appointments were mede on favouritism.Many of judges who were appointed, were relatives of Judges or Government officials but after the Supreme Court's bold judgement in Al-Jehad Trust case,government role in appointment was further decreased.By this judgement,Government and President office became post office and were bound to act on recommendations of the Chief Justice of Pakistan. After the 18th Constitutional Amendments in May 2010,a new Judicial Commission and Parliamentary committee are recommended.Judicial Commission will consist of Chief Justice of Pakistan,two senior judges of Supreme Court,Attorney General of Pakistan and Federal Law Minister of Pakistan.Parliamentary Committee will oversee the recommendations of the Judicial Commission.
Prior to 18th Constitutional Amendments,appointments in High Courts of provinces of Pakistan were made on the recommendations of the Chief Justice of the respective High Court by President of Pakistan.Many times appointments were mede on favouritism.Many of judges who were appointed, were relatives of Judges or Government officials but after the Supreme Court's bold judgement in Al-Jehad Trust case,government role in appointment was further decreased.By this judgement,Government and President office became post office and were bound to act on recommendations of the Chief Justice of the High Courts. After the 18th Constitutional Amendments in May 2010,a new Provincial Judicial Commission and Parliamentary committee are recommended.Judicial Commissions will consist of Chief Justices of High Courts,two senior judges of High Court,Advocates General of Provinces and Provincial Law Ministers.Provincial Parliamentary Committee will oversee the recommendations of the Judicial Commissions.
District & Sessions Judges...
Additional District & Sessions Judges are appointed by the Provincial High Courts from Lawyers and sub ordinate judiciary.Lawyers are required to pass examination conducted by High Courts while sub ordinate judges are promoted on seniority basis from senior civil judges.For lawyer an experience of ten year as an advocate with good standing in respective jurisdiction is required.
Civil Judge Cum Judicial Magistrate...
Civil Judge Cum Judicial Magistrate are also appointed by Provincial High Courts on recommendations of provincial Public Service commissions.Provincial Public Services Commissions hold open competitive exams after giving advertisements about new recruitments in National Newspapers.Basic qualification is LL.B from recognised university and three years experience as an advocate in respective jurisdiction.In competitive exams,different compulsory papers such as (for exampl in Punjab Public Service Commission) English Language & Essay,Urdu Language & Essay,Islamic Studies,Pakistan Studies,General Knowledge( objective test),Criminal Law,Civil Law 1 & 2,General Law papers are tested.A psychological test of all he passed candidates is conduted and after a strict interview by members of Service Commissions,recommendations are forwarded to respective High Courts for appointments.
LAW ENFORCEMENT IN PAKISTAN...
Law enforcement in Pakistan (Urdu: پوليس)is carried out by several federal and provincial police agencies. The four provinces and the Islamabad Capital Territory each have a civilian police force with juridiction extending only to the relevant province or territory. At the federal level, there are a number of civilian agencies with nationwide jurisdictions including the Federal Investigation Agency and the National Highways and Motorway Police, as well as several paramilitary forces including the Pakistan Rangers and the Frontier Corps. The most senior officers of all the civilian police forces also form part of the Police Service of Pakistan, which is a component of the civil service of Pakistan.
Airport Security Force, Prompts safety of Civil Aviation through development of legal framework, practices, procedures, technical and human resources to prevent/respond to acts of unlawful interference within airport premises.
Federal Investigation Agency
Frontier Corps, a paramilitary force operating along the western borders of Pakistan
National Highways and Motorway Police, covering all major roads across Pakistan
National Police Academy, a training centre for the senior officers of civilian police agencies
Civilian police ranks
Rank Abbreviation Civil service grade
Inspector General IGP BS 22
Additional Inspector General Addl. IG BS 21
Deputy Inspector General DIG BS 20
Senior Superintendent of Police /
Assistant Inspector General SSP /
AIG BS 19
Superintendent of Police SP BS 18
Assistant Superintendent of Police /
Deputy Superintendent of Police ASP /
DSP BS 17
Station House Officer /
Police Inspector SHO BS 16
Sub-Inspector SI BS 14
Assistant Sub-Inspector ASI BS 09
Head Constable BS 07
Constable BS 05
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Remand means the act or an instance of sending something (case) or an accused back for further action.
KINDS OF REMAND
There are two kinds of remand namely:
(1). Police remand
(2). Judicial remand
According to section 61 of crpc , the investigating police shall keep the accused in police station for only 24 hours of his time of arrest, and thereafter, if the investigation of the case is not completed, the investigation officer apply to the illaqa magistrate for the physical remand of the accused.
Section 344 CRPC contemplates remand of the accused in the judicial lock up after initiation of the proceedings in the court.
Section 167 of crpc provides that in certain cases detentionj in the police custody of the arrested person may be permitted so that the police may completeinvestigation and decide whether to proceed under section 169 or 170 of crpc.
However, before a magistrate can make an order of remand, the accused person must have been arrested by the police for the purpose of offence which is investigated and forwarded to the magistrate.
Illaqa Magistrate is competent to grant physical remand of the accused. But order for grant of physical remand of the accused must be passed with all seriousness keeping in view the relevant law and instruction about grant of remand to police incorporated in chapter 25 of police rules of 1934.
The only ground for granting remand by the magistrate is to see the nature of accusation nd grounds to believe that the same is well-founded against the accused.
While granting a remand the magistrate must have before him " a copy of the entries in the diary".
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kingmaker (Thursday, April 10, 2014)
FRONTIER CRIMES REGULATION...
The Frontier Crimes Regulation (FCR) comprises a set of laws enforced by the British Raj in the Pashtun-inhabited tribal areas at the Northwest British India. They were specially devised to counter the fierce opposition of the Pashtuns to British rule, and their main objective was to protect the interests of the British Empire.
The FCR dates back to the occupation of the six Pashtun-inhabited frontier districts by the British in 1848. The regulation was re-enacted in 1873 and again in 1876, with minor modifications.
With the passage of time, the regulation was found to be inadequate and new acts and offences were added to it to extend its scope. This was done through promulgation of the Frontier Crimes Regulation 1901.
The FCR advocates collective punishment, and many human rights activists argue it is against the most basic Human rights.
According to the FCR despite the presence of popularly elected tribal representatives, parliament can play no role in the affairs of the area.
Article 247 of the Pakistani Constitution provides that no Act of Parliament applies to FATA, unless the president so desires. Only the president is authorized to amend laws and promulgate ordinances for the tribal areas. Some of the provisions described as discriminatory are substantive as well as procedural - e.g. selection of jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), demolition of and restriction of construction of hamlet, village or tower in the North-West Frontier Province (section 31), method of arrest/ detention (section 38 & 39) security for good behaviour (sections 40, 42), imposition/collection of fine (sections 22-27).
The act has been condemned by senior judges including noted Pakistani Supreme court judge Justice A.R Cornelius as "obnoxious to all recognised modern principles governing the dispensation of justice" in the case of Sumunder vs State (PLD 1954 FC 228).)
After taking vote of confidence unanimously on 29 March 2008, Pakistan new Prime Minister Makhdoom Yousef Raza Gilani expressed his government's desire to repeal the FCR. Following this announcement there have been large number of processions in favor of this decision and the Prime Minister all over FATA.
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A jirga (occasionally jirgah) (Pashto: جرګه) is a tribal assembly of elders which takes decisions by consensus, particularly among the Pashtun people but also in other ethnic groups near them; they are most common in Afghanistan and among the Pashtuns in Pakistan near its border with Afghanistan. In recent times, the tradition has also been adopted by Muslims in Kashmir valley, It is similar to that of a town meeting in the United States or a regional assembly in England, where important regional matters are addressed among the people of the area.
The community council meeting is often found in circumstances involving a dispute between two individuals; a jirga may be part of the dispute resolution mechanism in such cases. The disputants would usually begin by finding a mediator, choosing someone of stature such as a senior religious leader, a local notable, or one of the mediation specialists (known as khans or maliks). The mediator hears from the two sides, and then forms a jirga of community elders, taking care to include supporters of both sides. The jirga then considers the case, and after discussing the matter comes to a decision about how to handle the matter, which the mediator then announces. The jirga's conclusion in the matter has to be accepted.
The jirga was also used as a court in cases of criminal conduct, but this usage is being replaced by formal courts in some settled areas of Pakistan and Afghanistan, elsewhere it is still used as courts in tribal regions.
The jirga holds the prestige of a court in the tribal areas of Pakistan. Although a Political Agent, appointed by the national government, maintains law and order through Frontier Crimes Regulation (FCR), the actual power lies in the jirga. The political agent maintains law and order in his tribal region with the help of jirgas. The jirga can award capital punishment, stoning to death in case of adultery, or expulsion from the community.
The Sindh High Court imposed a ban on the holding of jirgas in April 2004 because of the sometimes inhumane sentences awarded to people, especially the women and men who spread HIV to protect the society. But the ban has been blatantly ignored and nothing has been done about it so far.
In the recent military operation against al Qaeda and Taliban in Pakistan's restive southern tribal agencies bordering Afghanistan, jirgas played a key role of moderator between the government and the militants.
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An ombudsman (conventional English plural: ombudsmen) is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing the broad scope of constituent interests. An indigenous Danish, Norwegian, and Swedish term, Ombudsmann is etymologically rooted in the Old Norse word umbuđsmann, essentially meaning "representative". An ombudsman is an official, usually appointed by the government or by parliament, who is charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens.
Usually appointed by the organization, but sometimes elected by the constituency, the ombudsman may, for example, investigate constituent complaints relating to the organization and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes identify organizational roadblocks running counter to constituent interests.
In some jurisdictions an ombudsman charged with the handling of concerns about national government is more formally referred to as the "Parliamentary Commissioner" (e.g., the United Kingdom Parliamentary Commissioner for Administration, and the Western Australian state Ombudsman). In many countries where the ombudsman's remit extends beyond dealing with alleged maladministration to promoting and protecting human rights, the ombudsman is recognized as the national human rights institution. The word ombudsman and its specific meaning have been adopted in various languages, including Spanish, Dutch and Czech. The post of ombudsman has been instituted by other governments and organizations such as the European Union.
An ombudsman may not be appointed by a legislature, but may instead be appointed by, or even work for, a corporation such as a utility supplier or a newspaper, for an NGO, for a professional regulatory body, or for local or municipal government.
In some countries an Inspector General may have duties similar to or overlapping with an ombudsman appointed by the legislature.
Making a complaint to an ombudsman is usually free of charge.
Ombudsman in politics In general, an ombudsman is a state official appointed to provide a check on government activity in the interests of the citizen, and to oversee the investigation of complaints of improper government activity against the citizen. If the ombudsman finds a complaint to be substantiated, the problem may get rectified, or an ombudsman report is published making recommendations for change. Further redress depends on the laws of the country concerned, but this normally involves financial compensation. Ombudsmen in most countries do not have the power to initiate legal proceedings or prosecution on the grounds of a complaint.
The major advantage of an ombudsman is that he or she examines complaints from outside the offending state institution, thus avoiding the conflicts of interest inherent in self-policing. However, the ombudsman system relies heavily on the selection of an appropriate individual for the office, and on the cooperation of at least some effective official from within the apparatus of the state. Perhaps for this reason, outside Scandinavia, the introduction of ombudsmen has tended to yield mixed results.
Many private companies, universities, non-profit organizations and government agencies also have an ombudsman (or an ombuds office) to serve internal employees, and managers and/or other constituencies. These ombudsman roles are structured to function independently, by reporting to the CEO or board of directors, and according to International Ombudsman Association (IOA) Standards of Practice do not serve any other role in the organization. They are beginning to appear around the world within organizations, sometimes as an alternative to anonymous hot-lines in countries where these are considered inappropriate or are illegal, and in addition to hot lines because ombuds offices typically receive many more calls than do hot lines.
An organizational ombudsman who is practising to IOA "standards of practice" is neutral and visibly outside ordinary line and staff structures. An organizational ombudsman will practice informally (with no management decision-making power, and without accepting "notice" for the organization). An organizational ombudsman typically keeps no case records for an employer and keeps near absolute confidentiality. The only exception is where there appears to be an imminent risk of serious harm, and an ombudsman can see no responsible option other than breaking confidence—but organizational ombuds programs report that they can almost always find "other responsible options", such as helping a visitor to make an anonymous report about whatever appears to be the problem.
In Pakistan, the establishment of the institution of Ombudsman was advocated on several occasions. It was, however, Article 276 of the Interim Constitution of 1972, which for the first time provided for the appointment of a Federal Ombudsman as well as Provincial Ombudsmen. Subsequently, the Constitution of 1973 included the Federal Ombudsman at item 13 of the Federal Legislative List in the Fourth Schedule. The Institution of Ombudsman was, however, actually brought into being through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President’s Order No. 1 of 1983), which is now a part of the Constitution of the Islamic Republic of Pakistan by virtue of Article 270-A. It started functioning on 8 August 1983.
The Ombudsman in Pakistan is called "Wafaqi Mohtasib", (English: "Federal Ombudsman") with its headquarters in Islamabad and Regional Offices in Lahore, Sukkur, Quetta, Faisalabad, Multan, Dera Ismail Khan, Peshawar and Karachi. The official website of Ombudsman in Pakistan is http://www.mohtasib.gov.pk.
Chapter (19) of the Code of Criminal Procedure provides forms of Charge and gives sufficient details about Charge.
According to section (4), A Charge is the precise formulation of the specific accusation made against a person; it shall give the accused full notice of the offence
Charged against him. Charge means inculpation of a person for an alleged offence. Charge includes any head of Charge, when the Charge contains more heads
then one. It is drawn up in the form of a statement and contains the description and details of the offence alleged as to have been committed by the accused.
Object of Charge or why a Charge is required to be framed:
Charge enables the accused to know the Part'icular accusations made against him in-order to meet and to be ready for them before the evidence is given.
Unless the accused has the accurate and precise knowledge of the Charge levelled against him, he will not be able to meet his defence.
Particulars of a Charge:
According to sections (221), (222) and (223) of Cr.P.C, a Charge should include the following particulars;
1. The offence with which accused is Charged, giving any specific name of the offence or its definition, so as to give accused notice of the matter with which he is
2: The Law or section of Law in-respect of which the offence is alleged to have been committed.
3: Where the accused is liable, to enhanced punishment on account of his previous conviction and such previous conviction has to be proved, such Charge shall
state the fact, date and place of the previous conviction.
4; The time and place of the alleged offence and theperson against whom, or the thing in respect of which, jt was committed.
5: In case of criminal breach of trust or dishonest misappropriation of money only, the gross sum in respect of which the offence is alleged to have been committed
and the dates between which it is committed may only be stated.
6: Where the particulars mentioned above are not sufficient to give notice of the offence with which the accused is Charged/ then the Charge shall also contain the
particulars of the manner in which the alleged offence was committed.
Competency of Court to amend alter or add other offence to Charge:
According to section (227), "Any Court may alter or add to any Charge at any time before judgment is pronounced and every such alteration or addition should be
read and explained to the accused."
The Court is competent and may alter or add to any Charge upon its own motion or on application by prosecution, but such alteration or addition of a Charge,
should not prejudice the accused.
According to sections (228), (229), (230), (231) and (232), the following are the consequences of alteration or addition to Charge, which are as under:
1: The Court should proceed with the trail, if in the opinion of the Court, such alteration or addition made to the Charge is not likely to prejudice the accused in his
defence or the prosecution in the conduct of the case, and the Court should treat the new or altered Charges as the original Charge.
2: When the new, altered or added Charge is such which prejudice the accused or the prosecution, then the Court may in its opinion, either direct a new trial or
adjourn the trail for such period as may be necessary.
3: The case shall not be proceeded with, when the new, altered or added Charge is one for the prosecution of which previous sanction is necessary, until such
sanction is obtained.
4; Whenever a Charge is altered or added to by the Court after the commencement of the trail, the prosecution and the accused shall be allowed to recall or re-
examine the witnesses and also to call any further material witnesses with reference to such alteration or addition.
5: Whenever in opinion of any Appellate Court in the exercise of its powers of revision or submission of sentences for confirmation, that any person convicted of an
offence was misled in his defence by the absence of a Charge or by an error, it shall direct a new trail to be had upon a Charge framed in whatever manner it thinks
6: The Court shall quash the conviction, when the facts proved against the accused are such'that no valid Charge could be preferred.
What is the possibility to convict an accused of an offence without having Charged him thereof:
According to section (237), in the case mentioned in section (236), when it is doubtful what offence has beencommitted. In such case when the accused is Charged
with one offence and it appears in evidence that he committed a different offence, the Court can convict, such accused although he was not Charged with it.
So from the above discussion it is found that charge provides detail inrespect of accusation and allegations made against an accused by prosecution. It is framed by
the court in-order to stand test of the trial against the accused and to evaluate that the complaint made against him is genuine or not.
Inherent Powers of High Court:
Inherent Powers, means those Powers exercised by High Court for resolving a matter, for which no specific provision of law is available. Shortly Inherent Powers are
powers exercised by High Court for determining a question, in the absence of specific provision of law. In administrating Justice as prescribed by code, there will
always be cases and circumstances, which are not covered by the express provision of the code, wherein justice has to be done. It cannot be said that, in the above
circumstances courts have no power to do justice or to redress a wrong merely because no express provision of the code can be found to meet the requirements of
the case. In such case Inherent Powers may be invoked in the interest of justice and to make redressal of grievances.
Inherent Powers of High Court are extra-ordinary and intended to be used only in extra-ordinary cases where no other remedy is available to do the real and
substantial justice. They are usually not invoked when there is another remedy availabie. Section (561-A) of Cr.P.C provides that, "Nothing contained in the Criminal
Procedure Code shall be deemed to limit or affect the Inherent Powers of the High Court to make such orders as may be necessary to give effect to any order under
this code; or to prevent abuse of the process of any court or otherwise to secure the ends of justice" From the above it is observed that the High Court can exercise
Inherent Powers in three cases:
(1) In-order to give effect to any order under the Criminal Procedure Code.
(2) In-order to prevent abuse of process of any court.
(3) In-order to secure the ends of justice.
The High Court has in view of its general jurisdiction over all the Criminal Courts subordinate to it, Inherent Power to give effect to any order of any such court under
the Code, and to prevent the abuse of process of any such court or otherwise to secure the ends of justice.
Inherent Powers under section (561-A) can be exercised by High Court alone and not by Sessions Court or any other subordinate Court. Powers vested in High
Court under section (561-A) are unbridled and vast enough so as to find and rectify any abuse of process of court and make such orders as may be necessary to
secure the ends of justice. Proceedings without jurisdiction are In abuse of the process of the Court. Once Court suffers from total lack of jurisdiction, any
proceedings initiated by it, are void-ab-initio. Therefore , power under section (561-A) can be exercised to correct orders passed without jurisdiction.
Object of Inherent Powers:
The object of Inherent Powers is to do real and substantial justice and to prevent abuse of process of court, and to secure ends of Justice. The Inherent jurisdiction
of High Court, under section (561-A) is neither akin to appellate jurisdiction nor to revisional jurisdiction, but is a special extra-ordinary jurisdiction, main aim and
object of which is to save the people from the agony of the abuse of the process of the court.
From the above-mentioned statements, I reached to this result, that the legislature has not promulgated law on each and every subject, and a case if brought before
High Court in which a proposition is involved but no law is available on the subject, the High Court would not refuse to decide the matter on the ground that no law is
available to resolve the matter, but the High Court while exercising its Inherent Powers '(saved by legislature in the Criminal Procedure' Code) would make a decision
on the subject keeping-in-view the demands of justice..
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abidturk (Sunday, March 23, 2014)
Q: What procedure shall be adopted after a person is declared proclaimed offender?
Ans. When a criminal case is registered against a person, in-respect of cognizable offence, and he for the purpose of avoiding his lawful arrest gone into hiding, the
police officer who is conducting investigation would apply to the Illaqa Magistrate for a warrant of arrest under section (204) of the Cr.P.C against him. If in the
execution of said warrant of arrest the investigation officer did not find the accused, he would submit his report to this effect on the back of the warrant. Thereafter
the investigation officer would apply for warrant of proclamation under section (87) of Cr.P.C/ and he would execute the same in-accordance with law.
According to section (87) ofCr.P.C. "(I). If any Court is satisfied after taking evidence that any person against whom a warrant has been issued by it has absconded or
is concealing himself so that such warrant cannot be executed such Court may publish a written proclamation requiring him to appear at a specified place and at a
specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:-
(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house.
(3) "A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive
evidence that the requirements of this section have been complied-with, and that the proclamation was published on such day. Thereafter the investigation officer
would apply to the court for order of attachment of the property of person absconding under section (88) of Cr.P.C. The investigation officer would carried-out the
remaining investigation in absentia of the person absconding and after of its completion he would forward challan against him under section (512) Cr.P.C to the
competent court of jurisdiction.
The court would first summon search witness (DFC), who has executed warrants under section (204) and (87), Cr.P.C, and would record his statement. If from the
statement of search witness the court finds that the accused has gone into hiding and avoided his lawful arrest and absconded, then the court would declare him
absconder and the court would commence the conduct of trial in his absentia.
The court would summon all the prosecution witnesses and record their statements. At the final stage of the Trial the Court would give an opportunity to the public
prosecutor to present arguments. After hearing of the arguments if the court finds that strong evidence and a prima facie case is available on record against the
absconding accused, the court would announce order against him/ declaring him proclaimed offender, and the court would issue a perpetual warrant against him,
and send the record to the police station concerned with the direction to arrest the (proclaimed offender) and to produce him before the court.
According to section (512) of Cr.P.C,
"(I). 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 send for trial to the
Court of Sessions or High Court such person for the offence complained-of may, in his absence, examine the witnesses (if any) produced on behalf of the
prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for,
the offence with which he is charged, if the deponent is dead or incapable of giving evidence his attendance cannot be procured without an amount of delay,
expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) Record of evidence when offender unknown:
If it appears that an offence punishable with death or imprisonment for life has been committed by some persons unknown, the High Court may direct that any
Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given
in evidence against any person who is subsequently accused of the offence, lf the deponent is dead or incapable of giving evidence or beyond the limits of
Powers of appelate court
Q: Discuss the Powers of appellate court regarding disposal of Appeal?
Ans.: Appeal, Appellate Court and Appeal procedure:
The word Appeal is an undefined expression; it means the removal of a cause from an inferior Court to a superior one for the purpose of testing the soundness of
the decision of inferior Court, Appellate Court means the Court in which Appeal can be filed against judgment of the trial Court. The procedure for Appeal is that,
when accused is brought before the trial Court in a criminal case, his case is tried upon evidences produced by the parties and thereafter the Court gives its
decision. This is called judgment of the trial Court. But in-order to challenge its validity the powers of Appeal are conferred upon Superior Courts by Cr.P.C., so the
right of Appeal is provided by the law to a person, who is not satisfied with the decision of the trial court.
Procedure before disposing-of Appeal:
According to sections (419), (420), (421) and (422) ofCr-.P.C, the following procedure is provided before disposing of Appeal:
1. Petition of Appeal:
According to section (419), "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. Procedure when appellant in Jail:
According to section (420), "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 tothe proper appellate Court.'
3. Summary Dismissal of Appeal:
According to section (421), "On receiving the petition and copy under section (419) or section (420), the Appellate Court shall peruse the same, and, if it considers
that there is no sufficient ground for interfering, it may dismiss the appeal summarily: Provided that no appeal presented under section (419) shall be dismissed
unless the appellant or his pleader has had a reasonable opportunity of being heard insupport of the same. Before dismissing an appeal under this section, the
court may call for the record of the casebut shall not be bound to do so.'
Notice of Appeal:
According to section (422), "If the Appellate Court does not dismiss the Appeal summarily, it shall cause notice to be given to the appellant or his Pleader, and to
such officer as the Provincial Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall on the application of such
officer, furnish him with the copy of grounds of appeal.
And, in cases of appeals under section (411-A), sub-section (2) or section (417), the Appellate Court shall cause a like notice to be given to the accused."
Powers of Appellate Court in disposing of Appeal:
According to section (423), "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 and his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an Appeal under section (411-A) sub-section (2) or
section (417), the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the Appeal, or may—
(a) in an Appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retired or 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 him according to Law;
(b) in an Appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent
jurisdiction subordinate to such Appellate Court: or sent for trial, or
(2) alter the finding, maintaining the sentence, or, with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject
to the provisions of section (106), sub-section (3), not so as to enhance the same;
(c) in an Appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper."
In dealing with an Appeal the Appellate Court is also empowered, after recording its reasons to take additional evidence or direct it to be taken by a subordinate
Q: What do you understand by summons? How Summons as are served? Explain the procedure when service can not be effected.
================================================== ================================================== ==========
Summons is a document issued from the office of a court of justice calling upon the person to whom it is directed, to attend before a judge or office of a Court.
A Summons must bear the seal of the Court. Summons may be issued to accused as well as witnesses. Summons to a witness must contain the place at which, and
the day and the time of the day when the attendance of the witness is required. The Court through service of summons brings to the knowledge of the person
concerned the summons or notice in a legal action either by personal service, i.e, by the actual delivery of the process to the person concerned or by substituted
service, i.e, delivery of notice, etc, on such other person who is likely to bring it to the knowledge of theperson concerned or by publication.
According to Section (68) of Cr.P.C. "(I) Every summons issued by a Court under this Code shall be in writing in duplicate, signed and sealed by the presiding officer
of such Court, or by such other officer as the High Court may, from time to time by rule, direct.
(2) Summons shall be served by a police-officer, or subject to such rules as the Provincial Government may prescribe in this behalf by an officer of the Court issuing
it or other public servant, Provided that the Court may at the request of the complainant or the accused, allow him to serve the summons on his own witnesses.
How Summons as are served:
According to Section (69):
(1) The summons shall, if practicable be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
(2) Every person on whom a summons; is so served shall sign a receipt therefore 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
been effected when the letter would arrive in ordinary course of post.
Service when person summoned cannot be found:
According to section (70),"Where the person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the
duplicates for him with some adult male member of his family, and the person with whom the summons is so left shall, sign a receipt therefore on the back of the
Service on servant of State, or of a statutory body or company:
According to Section (72), "(I) where the person summoned is in the active service of State or of statutory body or a company, the Court issuing the summons shall
ordinarily send it in duplicate to the head of the office in which such person is employed, and such head shall thereupon cause the summons to be served in manner
provided by section 69 crpc, and shall return it to the court under his signature with the endoresement required by that section.
(2). Such signature shall be the evidence of due service.
Service of Summons outside local limits:
According to Section (73),"When a Court desires that Summons issued by it shall be served at any place outside the local limits of its jurisdiction, it shall ordinary
send such summons in duplicate to a Magistrate within the local limits of whose jurisdiction the person summoned reside or is, to be there served."
Procedure when Service cannot be effected:
According to Section (71), " If service in the manner mentioned in sections (69) and (70) cannot by the exercise of the due diligence be effected, the serving officer
shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the personsummoned ordinarily resides; and
thereupon the summons shall be deemed to have been duly served".
PROCEDURE FOLLOWED BY MAGISTRATE WHILE CONDUCTING A TRIAL:
before mentioning the procedure followed by the magistrate while conducting a trial, the magistrate takes cognizance of the offence in different three ways, which are mentioned in section 190 of the criminal procedure code and are as follow:
(a) upon complaint.
(b) upon police report or FIR
(c) upon information of any person other than police.
A trial is conducted by the magistrate in accordance with the following procedure provided in crpc.
1. Submission of charge sheet or challan or inquiry report:
The procedure in court for conducting a trial of an offence begins after the inquiry or investigation.
Under section 173 crpc, the police officer made charge sheet which is also known as challan or completion report, and forward the same through public prosecutor to magistrate who has jurisdiction for conducting the trial.
2. Commencement of proceeding:
according to section 204, if in the opinion of the court taking cognizance of an offence, there are sufficient grounds for proceedings, then if the case appears a summon case, summon shall be issued for the attendance of accused, and if the case appears a warrant case, a warrant may be issued for causing the accused to be brought before the court.
3. Procedure in trial of case
According to chapter 20 of the crpc, section 241-A states that the court shall supply free of cost all statements and documents to the accused, not less than seven days before the commencement of trial.
4. Charge to be framed.
According to sections 242 and 243 crpc, when the accused appears or is brought before the magistrate, a formal charge shall be framed relating to the offence of which he is accused.
And he shall be asked whether he pleads guilty or not, If he pleads guilty, his admission shall be recordedin words used by him. If the accused says "i do not plead guilty I claim trial", then the court is bound to proceed according to law by examining the witnesses of the prosecution and defence.
5. Examination of witnesses:
According to section 244, the magistrate shall on the application of complainant or accused, issue summon to any witness directing him to attend or to produce any documents or materials.
So firstly it is the duty of complainant to call his witnesses for recording evidence under section 164 crpc, for the purpose of proving his allegations, which he has imposed on accused.
Secondly , the magistrate is bound to examine all the witnesses produced by the accused in his defence.
At the time of recording statement of every witness, the following are the rights of either party:-
A)-- To examine-in-chief, the witness, "the party who call it"
B)-- To cross-examine, " every witness of adverse party".
C)-- To re-examine the witness, " the party who called it if necessary".
6. An opportunity to the accused for giving statement.
At this stage of trial the court gives an opportunity to the accused, that if he wants to prove himself innocent, he may record his statement in this behalf.
According to section 340 sub section 2 of crpc, Any person accused of an offence before a criminal court , such accused if he does not plead guilty may record his statement on oath in disproof of the charges or allegations levelled against him, and after this, the accused shall be cross-examined by the prosecution.
The accused should be at liberty at all times to be defended by a pleader, and at this stage of the trial , the pleader of the accused and public prosecutor may give their arguments in respect of legal and factual questions involved in the case.
8. Order of acquittal or sentence.
According to section 245 crpc, if the magistrate upon taking the evidence referred in section (244), and such further evidence if any, and after examining the accused, finds the accused not guilty, the magistrate shall record an order of his acquittal.
Where the magistrate upon taking the evidence referred in section (244), and such further evidence if any, and after examining the accused, finds the accused guilty of an offence, he shall pass a sentence upon him...
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sillent.killer (Friday, November 19, 2010)
Q... What do you understand by the preventive action of the police ?
PREVENTIVE ACTION OF POLICE
A police officer must interfere effectively for the prevention of an offence. He cannot shirk his duty of interposing effectively by being content with passing an oral order not to do a certain act.
The intervention is justified only when there is a probability of the commission of an offence . A police officer is not justified in removing an axe carried by a person under the impression that such person was carried it on his way to attack his enemy.
Preventive actions of the police are following:
TO PREVENT COGNIZABLE OFFENCES
According to section 149 of criminal procedure code " every police officer may interpose for the purpose of preventing and shall, to the best of his ability prevent the commission of any cognizable offence".
INFORMATION OF DESIGN TO COMMIT SUCH OFFENCES
According to section 150 of criminal procedure code, " every police officer recieving information of a design to commit any cognizable offence, shall communicate such information to the police officer to whom he is sub-ordinate, and to any such officer whose duty is to prevent or take cognizance of the commission of any such offence".
ARREST TO PREVENT SUCH OFFENCES
According to section 151 of criminal procedure code, " a police officer knowing of a design to commit any cognizable offence may arrest, without the 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".
PREVENTION OF INJURY TO PUBLIC PROPERTY:
According to section 152 of criminal procedure code, " 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".
INSPECTION OF WEIGHTS AND MEASURES:
According to section 153 of criminal procedure code,
1. any officer incharge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept therein, whenever he has reason to believe that there are in such place any weights, measures or instruments for weighing which are false".
2. If he finds in such place any weights, measures or instruments for weighing which are false, he may seize the same, and shall forthwith give information of such seizure to a magistrate having jurisdiction.
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