ABSTRACT
In Pakistan, the criminal and civil trials are dealt under two different statutes. The Code of Criminal Procedure, 1898 deals with criminal trial, in general. The Code of Civil Procedure, 1908 deals with civil trials in general. However, there are special statutes which provide special procedures having overriding effect on these general laws. In criminal trials the court procure attendance of a person by issuing summons, warrants, proclamation and attachment of property. There are warrant and summons cases wherein a warrant or summons are required to be issued at first instance. The warrant may be a bailable one or it may be Non-bailable one. It is observed that a great deal of law students are confused in connection of issuance of summons, warrants: bailable or Non-bailable and proclamation and attachment. This piece of writing is an endeavor to introduce, analyze and give a simple understanding to quench thirst of the desiring ones.
Key words: cognizable, Summons, Warrant, Proclamation, Attachment, Restoration
INTRODUCTION
The criminal trial is mainly dealt in Pakistan under the Code of Criminal Procedure, 1898. The criminal courts are empowered to compel appearance persons required before it for conclusion of the criminal trial. It depends upon the nature of the offence placed in schedule-II of the Code of Criminal Procedure, 1898. The offences are distinguished to be cognizable or non-congnizable. The compulsion is not only for accused but also, in some cases, for witnesses and complainant and other persons. The law provides for nature of offences and kind of cases regarding the nature of offence and procedure for taking cognizance by the courts. In such process, the criminal courts are empowered to issue summons or warrant to procure attendance of certain persons required to attend the court for inquiry or trial purpose. The summonses are to be served upon the required person or on someone else relating to him. Whereas the warrant is to be executed upon the person against whom it is issued by the court. These warrants may be bailable or non-bailable. In case of failure of service of summons, execution of warrants, the Code of Criminal Procedure, 1898 provides one step more harsh procedure in shape of proclamation and attachment of property of the persons so required to attend and failed to attend. In few cases the court is also authorized to issue warrant in lieu of or in addition to summons. Some special laws authorize the relevant agency to procure attendance of a person so required, without interference of court. At the time of taking cognizance of offences, the courts issue warrants either bailable or Non-bailable against accused. The process of warrant is also authorized by law for civil courts under the Code of Civil Procedure, 1908.
Cognizable Offence and Cognizable Case
It means a case in which a police officer may arrest any person without warrant, in accordance with schedule-II of the Code of Criminal Procedure, 1898. The cognizable offence are commonly reported to police in verbal or in writing and the same report is incorporated in the Book No.154 Cr.P.C. When a case is registered in under section 154 Cr.P.C it authorizes the police officer or investigation officer to effect arrest of accused without issuance of warrant by the court. On perusal of nature of offences, if it is found that the same offences which are incorporated in FIR, are bailable then the police officer may release accused on furnishing bond or surety as the case may be, after arrest of such accused.
Definition of summons and warrant
Prior to discus about summons and warrant and its use in criminal trial, let us have a glance on its meaning literally and technically. The Code of Criminal Procedure, 1898 does not give definition of “summons” and “warrant” under the head of definitions under section 4. The General Clauses Act, 1897 also does not define “warrant”. Likewise the word summons, mostly used in civil trials, is not defined under The Code of Civil Procedure, 1908 so also General Clauses Act, 1897. Now we have to search meanings of both terms “summons and warrant” from other sources for literal and technical meanings.
Summons
Literal meaning: the word summons is singular and its plural is summonses. It means an order or command to come, attend, appear or perform some action. In law it means an official order to appear in the court specifically to respond as a defendant to a charge, also the writ containing such an order. a call, a command, knock or other signal that summons. .
Technically summons is a writ, directed to the sheriff or other proper officer, requiring him to notify the person named that an action has been commenced against him in the court whence the writ issues, and that he is required to appear, on a day named, and answer the complaint in such action. The Law Dictionary available online on Bloomsbury.com, defines the word summons as an official command from a court requiring someone to appear in court to be tried for a criminal offence or to defend a civil action (brought against him)
Warrant
Literal meaning of word warrant is an order, sanction or guarantee. The Webester’s New World Dictionary defines the warrant as noun, “authorization or sanction by a superior or the law” and as a verb it is defined as “to give (someone) authorization or sanction to do something” .
Technically the word “Warrant” is defined in legal terms. The Black’s Law Dictionary defines a warrant as “A writ or precept issued by a magistrate, justice, or other competent authority addressed to s sheriff, constable, or other officer, requiring him to arrest the body of a person therein named, and bring him before the magistrate or court, to answer, or to be examined, touching some offense which he is charged with having committed.” The Law Dictionary available online on Bloomsbury.com, defines the word warrant as “an official document from a court which allows someone to do something. To issue warrant for arrest of someone, to issue an arrest warrant for someone to make out an sign an official document which authorizes the police to arrest someone.”
Since the main concern in this article is criminal trial and issuance of summons and warrants under criminal law, hence we will discuss summons under Civil Law separately in another paper. Here the summons shall be discussed in connection with criminal trial. After defining the words summons and warrant, now it became clear in mind that what is the meaning of both terms used in the legal field and the purpose of the summons and warrants. Since both terms are used in different meanings and at some different stages or in different nature of cases, hence both are to be discussed in details.
The Code of Criminal Procedure, 1898, provides details of summons, its service under chapter VI heading A. Summons. It consists on section 68 to 74. The summons shall be in writing in duplicate. It shall be signed and sealed by Presiding Officer of the court of any such other officer as directed by the High Court. The summons shall be served by police or such other officer or public servant as per prescribed rules. Generally summons under criminal trial are issued to witnesses at first instance. It may also be issued to call a person as court witness. Complainant may also serve summons on his own with permission of court. Service of summons shall be made personally, if practicable, by delivery of copy of summons by getting his signature as receipt on duplicate copy of summons. In case the person is not found, a copy of summons shall be left with some adult male member of his family under receipt by such member on duplicate copy. Though law is silent regarding relationship, sanity or otherwise of such male family member but the court should consider the circumstances and report of the server of the summons. In case service of summons on personally or through adult male member of family, is not possible, then a copy of duplicate shall be affixed on some conspicuous part of the ordinary residence of the person so summoned. In case summons is issued upon servants of state etc. the summons shall be addressed to head of the office who shall cause service of summons upon the person so summoned under receipt and the head shall return the same to the court under his signature and endorsement. The summons for service outside the jurisdiction is to be sent to the Magistrate within such limits outside local limits of the jurisdiction of the court. In practice, the summons outside local limits of jurisdiction are sent to the District and Sessions Court within local limits such summons is required to be served. For proof of service outside local limits of the jurisdiction, it is sufficient that the affidavit and report was made before such Magistrate outside the local limits of jurisdiction of the court issued summons. The service shall be admissible unless otherwise is proved.
Form of Summons
The form of summons to an accused (section 68 Cr.P.C) is given in Schedule V Form No.1 which reads as under:
“To (name/designation and place of posting of officer)
Whereas your attendance is necessary to answer to a charge of (state offence charged) you are hereby required to appear in PERSONZ (or by pleader, as the case may be) before the (Magistrage) of ____ on the day of hearing ____ fail not.
Given under my hand and the seal of the court, this___ day of ____
Seal/signature ”
The form of summons to witness (section 69 and 252 Cr.P.C) is given in Schedule V Appendix XXXI which reads as under:
“To (name/designation and place of posting of officer)
Whereas complaint has been made before me that______ of has (or is suspected to have) committed the offence of (state offence concisely with time and place), and it appears to me that you are likely to give material evidence for the prosecution;
You are hereby summoned to appear before this court on the day of ________ next at (state time) to testify what you now concerning the metter of the said complaint and not to depart thence without leave of the court; and you are hereby warned that, if you shall without just excuse neglect or refuse to appear on the said date, a warrant be issued to compel your attendance.
Given under my hand and the seal of the court, this___ day of ____
Seal/signature ”
Non-Bailable Warrant of Arrest
Part B of chapter VI of the Code of Criminal Procedure, 1898 deals with warrant. The warrant of arrest shall be in writing signed by the presiding officer and shall bear seal of the court. In view of section 75 (2) of the Code of Criminal Procedure, 1898, the warrant of arrest shall continue in force until it is cancelled by the court which issued it or until it is executed. When a warrant is issued as provided by law, the same becomes a public documents and may be proved in evidence by Certified True Copy as provided under article 87 and 88 of the Quanoon-e-Shahadat Order, 1984. The courts differentiate between Warrant of Arrest and a permission or order to arrest a person by any authority other than a court. It is held in the case of Amir Akber Khan vs National Accountability Bureau , that a direction to arrest by National Accountability Bureau against an absconder is not a warrant of arrest.
The warrant of arrest or as the case may be, the summons to procure attendance of an accused is a legal procedure provided by law. It is settled principle of law that when a thing is provided under law to be done in a particular manner, it should have been done in the prescribed manner as provided in law. In some special law we may find procedure for compelling the attendance of accused under the statutory laws or under the rules framed. When the general procedure is not adopted, as provided under the Code of Criminal Procedure, 1898 then the same cannot be termed same as that of the code. It is held in the case of Sardar Fakhar Imam vs Taj Paper Mills , that warrant of arrest of accused cannot be executed through the District Officer Environment who is otherwise complainant in the same case, as the same is violation of the provisions of Section 75 of the Code of Criminal Procedure, 1898. The term summons and warrant used in the law and procedure of service and execution thereof shall have the pivotal effect on adoption of the procedure. Non compliance of procedure provided under law nullifies the entire process of service/execution. The warrant of arrest, as provided, under section 75 Cr.P.C is generally termed as Non-Bailable Warrant of Arrest (NBW).
The warrant of arrest ordinarily be directed to one or more police officers for its execution. In case of absence of any police officer, the court may direct the warrant to any other person for its execution immediately. Where the warrant is directed to more than one police officer or person, any one or all of them may execute it as per law. Where the warrant is directed to any police officer for its execution, the same may be executed by any other such police officer whose name is endorsed upon the warrant by the officer to whom it was issued. Prior to arrest the persons whose warrant is issued, the police officer shall notify him the substance of the warrant then arrest him. For arresting a person it is sufficient to touch his body and warn him that he is taken into custody. The arrested person in compliance of execution of a warrant, shall be brought before the court where he is required to be produced without any unnecessary delay. In addition to provisions of section 81 Cr.P.C the section 61 Cr.P.C also provides for detention period which shall not be beyond twenty four hours. Once a warrant of arrest is issued by the court, it can be executed anywhere in Pakistan. This is the logic where High courts grant protective bail anywhere in Pakistan irrespective of the fact that warrant had been issued anywhere in Pakistan. Where the warrant of arrest is to be executed beyond the territorial jurisdiction the court issuing, the same shall be forwarded to the Magistrate or District Superintendent of Police within local limits of whose jurisdiction it is to be executed. The police officer to whom the warrant is directed to be executed shall take it for endorsement to a Magistrate for its execution. If the police officer is of the opinion that such endorsement by Magistrate shall prevent the execution of warrant, then he may execute such warrant without endorsement of Magistrate or officer incharge of Police Station. In case where the warrant is executed the arrested person shall be brought before the Magistrate or District Superintendent.
The form of Non-Bailable Warrant of Arrest (section 75 Cr.P.C) is given in Schedule V Form No.II which reads as under:
“To (name/designation of the person who is to execute the warrant)
Whereas _____ s/o ______ stand charged with the offence of (state the offence), you are hereby directed to arrest the said _______ and to produce him before me. Herein fail not.
Given under my hand and the seal of the court, this___ day of ____
Seal/signature ”
Bailable Warrant of Arrest
The court while issuing a warrant of arrest may direct the executing officer to take a bond with sufficient sureties of his attendance and release such person from custody in compliance of such warrant of arrest. It is commonly known as Bailable Warrant of Arrest (BW). This type of warrant is defined under section 76 of the Code of Criminal Procedure, 1898. There are three conditions which shall contain in a Bailable Warrant of Arrest which are a) the number of sureties b) the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and c) the time at which he is to attend before the court.
The form of Bailable Warrant of Arrest to an accused (section 76 Cr.P.C) is given in Schedule V Form No.II which reads as under:
“To (name/designation and place of posting of officer)
Whereas your attendance is necessary to answer to a charge of (state offence charged) you are hereby required to appear in PERSONZ (or by pleader, as the case may be) before the (Magistrage) of ____ on the day of hearing ____ fail not.
If the said _______ give bail himself in the sum of _______ with one surety in the sum of (or two sureties each in the sum of _____) to attend before me on the _____ day of and to continue so to attend until otherwise directed by me, he may be released.
Given under my hand and the seal of the court, this___ day of ____
Seal/signature ”
Implication of section 86 Cr.P.C
At the execution of warrant of arrest out of the jurisdiction of the court which issued warrant, the arrested person shall be directed to be removed in custody to the court which issued the Warrant of his arrest. In other words it is removed under transitory remand, under the orders of Magistrate. Where it appears that the warrant is issued regarding Bailable offence, the accused shall be released after taking bail or in shape of security to the satisfaction of such court. Such security or bond as the case may be shall be forwarded to the court which issued the warrant of arrest. In case of a non bailable offence, and no directions on warrant were given, then the Sessions Judge, of the Sessions Division where accused is arrested in execution of warrant of arrest, may grant interim post arrest bail to accused subject to provisions of section 497 Cr.P.C for sufficient reasons and direct the persons to appear before the court which issued warrant of arrest. The Sessions Court shall forward the bond to that court.
Section 512 Cr.P.C and bifurcation/separation of trial
Where the court issuing warrant of arrest of an accused and is satisfied that he has absconded away and there is no hope of his immediate arrest, the court may record the evidence of prosecution witnesses in his absence. The court has to adopt the entire procedure provided under chapter VI of the Code of Criminal Procedure, 1898. After issuance of warrant of arrest, proceedings under section 87 and 88 of the Code of Criminal Procedure, 1898 the trial court may adopt the separation of trial of present accused from that of proclaimed offender/absconders. If such proceedings are not adopted then the process done by the court may be illegal. The proceedings against a person alleged to be accused but not placed in any of the column of report u/s 173 Cr.P.C no proceeding could be taken for separation of the trial. In the case of Zaki Ur Rehman Lakhwi v/s Malik Muhammad Akram Awan , it was held by the Lahore High Court that main accused was arrested in India and was produced before a Magistrate in India where his statement under section 164 Cr.P.C was recorded. He has nominated accused as his companions in Pakistan. An inquiry was conducted and accused was arrested in Pakistan to face trial on the basis of 164 Cr.P.C statement of main accused arrested in India. The said accused was neither shown as absconder nor in custody in the column of the charge sheet under section 173 Cr.P.C
Proclamation, attachment and restoration of attached property
Chapter VI –C deals with proclamation and attachment of property of accused. The word proclamation literally means an official announcement, to show to be or announced to be . The Black’s Law Dictionary defines technical meaning of proclamation as “The act of proclaiming of publishing; a formal declaration; an avowal. The act of causing some state matters to be published or made generally known. A written or printed document in which are contained such matters, issued by proper authority. Also, the public nomination made of any one to a high office; as, such a prince was proclaimed emperor. In practice. The declaration made by the crier, by authority of the court, that some thin is about to be done.”
Where the court is satisfied after issuance of warrant and taking evidence of process server that accused is absconding and concealing himself from arrest or the warrant cannot be executed, the court may publish a written ploclamation for appearance of such absconder. The proclamation shall specify the place, and date, not less than thirty days, of such proclamation. The proclamation shall be publically read and shall be affixed to some part of the house conspicuous where accused ordinarily resides. A copy of such proclamation shall also be affixed in the court house at some conspicuous place. The court which issued proclamation of an accused shall at any time issue an order for attachment of any property movable or immovable or both belonging to such proclaimed offender. The attachment shall be made in shape of seizure, appointment of receiver, prohibiting the delivery of property to accused or anyone else on his behalf, in case of movable property. Whereas in case of immovable property the attachment may be by taking possession by appointment of receiver, by an order in writing prohibiting payment of rent or delivery of property to proclaimed offender or anyone on his behalf. The court may take all or any two of such modes as the court deems fit. If any accused voluntarily appears of apprehended and brought before the court within two years of attachment of his property, and satisfies the court for his absconding be restored. If the said property is sold in execution of attachment the net proceeds of the sale and residue of the property shall be delivered to such accused. The property shall not be sold till expiry of six months of proclamation or decision on objections made under section 88 (6-A) Cr.P.C.
The proclamation of an accused does not come in way in acceptance of compromise in compoundable offences in his absence. It was held in the case of Gul Noora v/s State by the Peshawar High Court that parties entered into compromise including proclaimed offenders. The trial court has refused to accept compromise to the extent of proclaimed offenders. The high court not only accepted compromise but also acquitted accused who were proclaimed by the trial court.
Permanent/perpetual NBWs
The word permanent is defined in Black’s Law Dictionary as fixed, continuing, lasting, stable, enduring, abiding, not subject to change. Generally opposed in law to temporary, but not always meaning perpetual. The court completed the procedure regarding issuance of warrant of arrest of accused and proclamation then the court issues permanent warrant of arrest. In the case of Muhammad Ashraf alias Moni v/s state It was held that the court should complete the entire process of issuance of warrant, proclamation, attachment and then issue permanent Non-bailable Warrant of Arrest. It is held in case of Akhtar Muhammad vs State that the court has to proceed under section 512 Cr.P.C and declare accused as proclaimed offender followed by issuance of Perpetual warrant of arrest.
Issuance of process in shape of Bailable, Non-bailable Warrant and summons
Schedule II of Code of Criminal Procedure, 1898 provides in column No.3 and 4 that in which offence accused may be arrested with or without warrant and which offence is a warrant or summons case. The Column No.4 shows the offence as to whether warrant or a summons is ordinarily issued at first instance whereas column No.3 show that whether police officer may arrest with or without warrant of arrest. Some cases are shown as summons cases but the police officer are required not to arrest accused without warrant of arrest issued by the court. In some other case column No.4 shows a warrant case but police office may arrest without warrant as per column No;3. It is clear that one should refer to the each offence in Schedule-II for issuance of warrant or summons at first instance.
It is observed in most of the judgments of Superior courts in Pakistan that when in any case a direct complaint u/s 200 of Cr.P.C is brought before the court and the court is of the opinion that cognizance is to be taken, then the court, at first instance, shall not issue non bailable warrant of arrest. In the direct complaints irrespective of the nature of offence, Non-bailable Warrant of Arrest is not issued. The cases where names of accused are placed in column No.II of the challan with blue ink due to deficient evidence and the court takes cognizance of the case may issue summons or Bailable Warrant of Arrest at first instance. When application under section 193 is allowed and someone is joined as accused in the case, the court has to issue Bailable Warrant of Arrest to such accused. The harsh mode of non bailable warrant of arrest is not appreciated by the superior court. In some special laws like Illegal Dispossession Act, 2005 when the court takes cognizance of offence after inquiry, then bailable warrants are issued at first instance as the case is non-cognizable one. The issuance of Non Bailable Warrant is harsh step taken by the court at first instance in certain cases.
Conclusion
The criminal trial is dealt under the Code of Criminal Procedure, 1898. Police registers cases as per police rules and forward charge sheet. The charge sheet contains certain columns as provided by section 173 and its relevant police rules. The court procures attendance of accused who are not brought in custody or not appeared on bail. On the other hand the procedure of filing direct complaint u/s 200 of the Code of Criminal Procedure, 1898 is given. In either cases the court after taking cognizance of the offence, issue process in shape of summonses, Bailable warrants, Non Bailable Warrants. In cases of other law where non cognizable offences are provided for and procedure of direct complaint is provided, the court issues Bailable Warrant of Arrest of accused/respondents. The entire mechanism is provided under chapter VI of the Code of Criminal Procedure, 1898. The kind of process to be issued at first instance is also given in shape of Schedule-II, particularly in column No.3 and Column No.4.