TRIAL OF CRIMINAL CASES IN PAKISTAN UNDER THE CODE OF CRIMINAL PROCEDURE, 1898 AND RELEVANT POLICE RULES, 1934
by
LIAQAT ALI KHOSO
Additional District and Sessions Judge, Malir, Karachi
[email protected]
03337120634
https://orcid.org/0009-0008-9814-9327
Introduction
The Code of Criminal Procedure, 1898 (Cr.P.C.) is mainly procedural law in Pakistan that governs the investigations, trials, and adjudication of criminal cases including some other miscellaneous procedures before a trial Court and appellate court. It also includes the process of criminal appeals and criminal revisions against orders and judgments of the lower court. It divides criminal trials into different categories, which are discussed here in detail. It provides the provisions regarding pre-arrest and post arrest bail and grounds for grant and refusal of the bail plea of an accused. The provisions of Cr.P.C are general in nature. However the special Courts may have certain special procedure and powers under the special laws. As per section 28 Cr.P.C. the offences under penal code may be tried by the High Court, Courts of Sessions and any other Court shown in column No.8 of the Schedule-II to the Cr.P.C. There are three chapters in Cr.P.C to explain in detail the procedure adopted by the Courts to try a criminal case. The trial is generally starts from the stage of supply of copy to accused and framing of a formal charge and culminates in acquittal of accused or his conviction as the case may be by passing an order or judgment. In this article the trial process in Pakistan under the Code of Criminal Procedure, 1898 is discussed in detail to enable the reader get step by step knowledge of criminal trial.
Keywords: Penal Code, Cognizable and Non-cognizable Offence, proceedings, investigation, Police Report, Criminal Court, Magistrate, Sessions Court, inquiry, Trial, Charge, Acquittal, Conviction, Appeal, Revision, police rules, previous conviction, plead guilty, confession.
Criminal Trials under Cr.P.C.
Type of Trial Governing Authority Applicable to
1. Magistrate Trial (Regular/Ordinary) Chapter XX (Ss. 241–250-A) Offences triable by Magistrates (1st/2nd Class)
2. Summary Trial Chapter XXII Sections 260-265 Magistrate of 1st Class
3. High Court and Sessions Trial Chapter XXII-A (Ss. 265-A to 265-N) Serious offences (punishable with death, life, or +7 years imprisonment)
Note: Assistant Sessions Court also follows the procedure of Chapter XXII-A; but may award sentence only up to 7 years imprisonment.
General Stages of Criminal Trial (All Types)
The Criminal case is initiated with registration of FIR under section 154 Cr.P.C, filing a Direct Complaint under section 200 Cr.P.C, initiation of inquiry under section 156 (3) Cr.P.C by directions of Magistrate or on complaint made under section 195 Cr.P.C. However, the trial procedure is almost same in all such criminal case subject to the jurisdiction of Magistrate and Court of Session, with little bit difference.
Procedure of Direct Complaint under section 200 Cr.P.C
The complainant has option either to register his FIR under section 154 Cr.P.C at Police Station having jurisdiction or to file a Direct Complaint under section 200 Cr.P.C before the Magistrate having jurisdiction. On filing of Direct Complaint under section 200 Cr.P.C, the Magistrate shall at once examine the complainant upon oath and reduce the substance in writing signed by Magistrate and the complainant. If complaint is made in writing or it is made by any Court, the complainant shall not be examined by such Magistrate. Where the complaint is filed before the Magistrate but he is not competent to take cognizance then Magistrate either return the complaint for filing before the competent court having jurisdiction or forward the same to proper Court. The Magistrate or the Court to which the complaint is forwarded may enquire into the case itself or direct an inquiry or investigation to be made to ascertain the truth or falsehood of the complaint. Such enquiry is generally called Criminal Preliminary Enquiry or Crl. P.E. The Court may dismiss the complaint, if after considering the statement on oath of the complainant and result of investigation or enquiry, there is no sufficient grounds for proceeding. After enquiry the cognizance is taken under section 204 Cr.P.C where sufficient evidence is collected to proceed the case against the accused. The procedure of trial of Direct Complaint under section 200 Cr.P.C is same as that of State case/FIR case. However the jurisdiction of the Courts would follow the specific trial procedure in the relevant chapters viz: chapter XXII or Chapter XXII-A Cr.P.C.
Registration of FIR under section 154 Cr.P.C.
Rule 24-1 of the Police Rules, 1934 mandates the officer in charge of a Police Station that he shall reduce every information into a cognizable offence or non cognizable offence. The Cognizable offence is generally reported to Police Station having jurisdiction, where the report of the complainant is incorporated in register No.154 as prescribed Performa of Rule 24-5 (1) of the Police Rules, 1934, called as FIR. Such report may either be oral or in writing signed by informant. Once the report is incorporated in the said register No.154, it is termed as First Information Report (FIR) as mentioned in proviso of Section 173 (1) Cr.P.C. After registration of FIR, the police start investigation of the case through a competent police officer. In some cases, as mentioned in section 156 Cr.P.C the investigation is conducted by a specified rank officer. When information is given to a Police Station regarding cognizable offence and after registration of FIR; it comes to the knowledge of the officer in charge of such police station that the offence has been committed within jurisdiction of some other police station, and then such other police station must immediately be informed about offence and registration of FIR. Such other officer in charge of Police station shall immediately proceed to the place of incident as per Rule 25-4 of the Rules 1934.
The Code of Criminal Procedure, 1898 also provides remedy to the complainant or informant for approaching the Ex-Officio Justice of Peace under section 22-A (6) (i) Cr.P.C , for seeking directions to SHO to register the FIR in cognizable offence, if SHO failed to discharge his duties under section 154 Cr.P.C. Police investigation is provided under chapter XIV sections 156 to 173 Cr.P.C. Here would be essential to know what cognizable offence is. The Cognizable offences is defined under definition clause (f) of section 4 Cr.P.C. Cognizable offence means an offence for a police officer may in accordance with the second schedule or under any law, arrest without warrant. Second Schedule provides provided Column No.3 where it is mentioned that whether police officer may arrest without or not.
Investigation – [Chapter-XIV, Ss. 154–173] and Chapter XXV of the Police Rules, 1934
Chapter XIV deals with information to the Police and powers to investigate the case. Once FIR is registered, the Investigation officer is appointed by the Station Investigation Officer (SIO) to investigate the case without permission of the Magistrate. As pre Rule 25-1 Officer In charge of Police Station is empowered to investigate the cognizable offence under section 156 Cr.P.C. There is no bar on the police officer being complainant as well as investigation officer . The IO proceeds to the place of incident and prepare such memo of site inspection in presence of witnesses, prepares such sketch, under rule 25-13, to show position of each material fact in the sketch. It is duty of IO to ascertain the facts and circumstances of the case at place of incident and collect any other relevant evidence. The IO is duty bound to seize the incriminating articles like empties, blood stains, traces, finger prints and any other material related to the case including photographs and video recording if possible under Rule 25-13-B of police Rules 1934. The photographs and video recordings are admissible in evidence under Article 164 of the Quanoon-e-Shahadat Order, 1984. The Investigation Officer may seek assistance of Technical Assistance from Crime Branch under Rule 25-14. IO has also power to arrest accused if found, in cognizable offence. It is duty of investigation officer not only to collect material against accused to connect him with offence but also to collect evidence to save innocent people from endless agony of investigation and trial. The investigation as per section 4 (L) Cr.P.C means collection of evidence by a police officer. It does not mean to collect the evidence only against accused rather it means to collect any evidence during investigation of a case be it in favor of prosecution or in favor of accused. Such proposition is also held in the case of Muhammad Nawaz . The primary duty of the Investigation Officer is to collect the entire materials related to the case by remaining in the ambit of investigation and then to submit the same before the competent Court as per provisions of law. The IO has to record the statement of witnesses under section 161 Cr.P.C. who are acquainted with facts of the case. The Rule 25-18 requires the Investigation Officer to record statements but these shall not be part of the case diary as provided under section 172 Cr.P.C. Investigation Officer may issue notice under section 160 Cr.P.C to any such person for recording his statement. He shall take into consideration the safe custody of the property related to the case and shall place the same in the Malkhana of Police Station by ensuring that the facts of property in Malkhana are maintained in Register No.19 of the Police Station and its entries in daily Register No.II of the Police Station. Investigation Officer has to record the statement of in charge Malkhana/ Head Moharir and also mention his name in the calendar of witnesses in 173 Cr.P.C Report. The proceeding conducted by Investigation Officer cannot be called in question at any stage on the ground that Investigation Officer was not competent to conduct such investigation. The Magistrate empowered under section 190 Cr.P.C may also pass orders for such investigation, where any cognizable offence is reported to the Magistrate. In case of a non serious case the Investigation Officer need not to proceed to the spot at all. The Investigation Officer may have option not investigate the case at all under section 157 (1) (b) Cr.P.C. The police rules chapter 25 rule 9 provides that where Investigation Officer is of the opinion that no case is made out from investigation, he shall record reasons in case diary and seek permission to stop further proceedings in the case. This request is known as report under section 157 Cr.P.C. under Chapter 25 rule 9 the Station House Officer may refuse to register a case or investigate the registered case which does not the further proceedings. The informant shall be informed that no investigation is needed to be conducted. The Investigation Officer has power to call any person under section 160 Cr.P.C to record his/her statement in connection with the case. The Investigation Officer may record statement of a person acquainted with facts of the case under section 161 Cr.P.C separately. The statement of witnesses shall not be incorporated in case diaries as per Rule 25-18 of the Police Rules, 1934. The statement of a witness recorded under section 161 Cr.P.C shall be provided to accused which may be used to contradict under Article 140 of the Qanun-e-Shahadat Order, 1984 during trial. During investigation, the statement of a witness under section 164 (1) Cr.P.C may be recorded by Magistrate of 1st Class or Magistrate of 2nd Class specially empowered by the Provincial Government, in presence of accused. The accused shall be given opportunity of cross examining the witness making such statement. The confession of accused under section 164 (2) and (3) Cr.P.C may be recorded in the manner provided under section 364 Cr.P.C during course of investigation. The Magistrate shall append such certificate as provided under the law . The conditions prescribed in Rule 25-29 of the Police Rules, 1934 shall be applied in addition to the High Court instructions.
Remand of accused under section 167 Cr.P.C
Once case is registered and Investigation Officer has started investigation and arrested accused, the Investigation Officer is unable to complete the investigation within 24 hours as required under section 61 Cr.P.C . The investigation Officer shall forward case papers, diaries and produce the accused before the Magistrate. The Magistrate shall authorize the custody of accused to police for completion of investigation subject to the reasons to be recorded by such Magistrate on application of Investigation Officer.
Where the Magistrate has no jurisdiction regarding the case, the accused may be forwarded to the concerned Magistrate (transitory remand ). The transitory remand shall state the period of the transitory remand. The safe guards are to be taken into consideration regarding safety of accused by the Magistrate. The Magistrate may pass orders for medical examination of accused prior to proceeding transitory remand and after reaching the accused before the concerned Magistrate. After completion of investigation a report under section 168 Cr.P.C is forwarded for approval of higher officers before the same is submitted in the Court through prosecution office.
Discharge of accused and Challan of the case
Where the Investigation Officer is of the opinion that there is deficient evidence or no sufficient evidence in the case against accused has been collected, the Investigation Officer shall release accused under section 169 Cr.P.C, if in police custody on executing bond with or without sureties with directions to accused to appear if so summoned by Magistrate empowered to take cognizance of the offence. Where accused is in Judicial Custody then Investigation Officer has to apply for orders under section 169 Cr.P.C. to the concerned Magistrate or concerned court as the case may be for release of accused on basis of investigation.
Where sufficient evidence is collected by the Investigation Officer, the IO shall forward the accused under section 170 Cr.P.C, to the Magistrate empowered to take cognizance of offence upon a Police Report under section 173 Cr.P.C. to face trial. At the time of submission of Report under section 173 Cr.P.C, the Investigation Officer shall produce weapon or other case property, complainant and witnesses or other persons so acquainted with facts of the case or/and execute a bond for appearance thereof for trial of accused. The report under section 173 Cr.P.C shall be forwarded within 14 days from the date of recording of FIR under section 154 Cr.P.C. Three additional days may be allowed to the IO for submission of Challan . In many cases the challans are delayed beyond 14 or 17 days. The check and balance is kept by the High Courts by calling such reports from the concerned Courts regarding pending challans.
The Investigation Officer shall maintain case diaries under section 172 Cr.P.C. No person shall call these diaries during trial. Entries in the diary prepared under section 172, Cr.P.C. are only notes of secondary evidence of witnesses, who cannot be examined in the first instance, and whose evidence, if necessary, should be taken in open Court in the presence of the accused as required under section 353 Cr.P.C. These diaries cannot be used either as substantive or corroborative evidence. Nor can a Court look into them and take the facts and statements written therein as material which would help it to come to a finding on the evidence in the case. Reference can be made to the case of Allah Yar v. The State . The honorable Supreme Court in case of Subhanuddin vs. State held that the police-diaries being evidently inadmissible in evidence were merely perused by the learned Judges for their moral satisfaction. The case diaries of investigation officer are maintained under chapter 25 rule 53 of the Police Rules, 1934.
Disposal of case under A, B and C-Classes by IO.
After completion of investigation, the IO has to form his opinion from the collected evidence for disposal of the case. As we have discussed above that where no sufficient evidence is collected then IO may discharge accused under section 169 Cr.P.C. In case of sufficient evidence IO may forward accused to Magistrate under section 170 Cr.P.C on basis of sufficient evidence. However as per practice in vogue the IO may dispose of a case in A-Class when accused is either not nominated or untraced. In A-Class reports, the investigation continues.
There is no procedural law in Pakistan by which the Magistrate may grant administrative approval for disposal of a case under “A”, “B” and “C” Class. The continuing practice in the courts now had become usage and has thus force of law and became part and parcel of procedural law. Such practice by the courts is not inconsistent with the Constitution of Islamic Republic of Pakistan, 1973 as held in the case of Syeda Afshan vs Syed Farrukh Ali .
A-Class disposal means the FIR is true but accused is untraced. The Magistrate can dispose of the case till the appearance /arrest of accused. B-Class disposal means that FIR is maliciously false and after passing summary orders by directing the SHO to initiate proceedings for offence punishable under section 182 PPC against complainant/informant who has given such false information knowingly. C-Class disposal means FIR may be disposed of being Non-Cognizable offence but in this class it is suffice to say that if there is evidence regarding Non-Cognizable offence, the Magistrate can direct the SHO to submit a separate report under section 155 Cr.P.C for taking cognizance and proceedings or otherwise. The Rule 24-7 of the Police Rules, 1934 pertains to the cancellation of FIR. Guidance is sought from Syeda Afshan vs Syed Farrukh Ali .
On submission of Police Report, the Magistrate has to pass order for accepting the report as it is or the Magistrate may differ with opinion of the Investigation Officer. It is now settled principle of law that Ipsi Dixit of police is not binding upon the Magistrate or Court. Where the Magistrate accepts the police Report in any of the above Classes, the order of the magistrate is deemed to be an administrative order. Where Magistrate disagrees with the disposal of case under A, B and C-class and direct the IO to submit Challan of the case, then the said order of Magistrate is deemed to be a Judicial Order.
Cognizance by Court– S. 190 and 193 Cr.P.C
On submission of report under section 173 Cr.P.C the Magistrate may opt to proceed as per section 173 (2) Cr.P.C for further investigation or to opt under section 190 Cr.P.C. The Magistrate may take cognizance of offence 1) upon a complaint, 2) upon report in writing by any Police Officer, and 3) upon information received from any person or upon his own knowledge or suspicion. In case of the offence exclusively triable by the Court of Sessions, the Magistrate without recording evidence, shall forward the case to the Court of Sessions for trial.
Section 193 no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless the case has been sent up to it by Magistrate under section 190 (2) Cr.P.C. or where express powers are given in special law or by notification by the government to the Court of Sessions, as in Anti Rape Cases, Special Narcotics Cases, NAB cases and so on.
Cognizance by High Court- 194 Cr.P.C
The High Court may take cognizance of any offence as per provisions of Cr.P.C. and may proceed the trial of the accused as held by the Honourable Supreme Court of Pakistan in the case of Dr. Muhammad Afzal vs The State.
Cognizance under section 195 Cr.P.C
No Court shall take cognizance of any offence regarding contempt of lawful authority of public servant except on complaint in writing of the public servant concerned or his subordinate. No court shall take cognizance for prosecution of certain offences against public justice in relation to certain proceedings in any court except on complaint in writing of such court or some other court to which such court is subordinate. No court shall take cognizance of prosecution for certain offences relating to documents given in evidence except on the complaint in writing of such court or some other court to which such court is subordinate. The basic rule under section 195 Cr.P.C is that no cognizance shall be taken by the court except on written complaint. The provisions of section 195 Cr.P.C are exception to the general rule that any person can file complaint regarding any offence came to his/her knowledge and put the law into motion.
Cognizance by High CourtS.194 Cr.P.C
The High Court may take cognizance of any offence as per provisions of Cr.P.C and to proceed the trial of the accused.
Trial of criminal cases
Why Trial?
Before we discuss the procedure of trial in criminal cases under the Code of Criminal Procedure, 1898 in legal system of Pakistan, it is necessary to shortly know why trial is required. The basic purpose of trial of an accused in a criminal case is to protect the rights of accused. The trial is source of determination of truth of the allegations of prosecution through examination of witnesses, evidence and technique of cross examination . It is to ensure justice to victim so also Society and prevent the arbitrary punishment of accused through state authorities. It also raises the confidence in legal system of any state. Islam emphasizes for hearing both parties before passing any judgment. Holy Prophet has also heard both victim and accused parties in his Holy Life time while deciding the issues and matters. The Magna Carta (1215), has also given the right to public trial, legal representation to accused, right of cross examination to accused to ascertain truth and falsity in evidence. Cr.P.C has dedicated chapters for trial of offence.
What is trial?
The word trial is not defined in Criminal Procedure Code, 1898. A trial is the judicial process by which a person accused of a crime is legally examined on the basis of evidence collected during investigation by investigator, in a Court of law to determine guilt or innocence of that person by the authority of the court having jurisdiction.
CHARGE (Chapter XIX)
The word Charge is not defined in the Code of Criminal Procedure, 1898. The Charge is a formal accusation against the accused which precisely state the offence, sections of law and jurisdiction of the Court with date, time, place and manner of commission of offence to enable accused to defend himself. This process is derived to protect the rights of accused for fair trial. Accused must know as to the allegation to defend his case or to make a plea of his own as held in the case reported in PLD 2012 Sindh 307 . The charge must contain following basic ingredients to enable accused clearly to defend and take plea to avoid any misled in future during trial:
• The charge should state the offence with which accused is charge of.
• Specific name of offence if so provided in the statutory law
• The relevant law and section of law
• Charge must be in English language or in the language of the Court.
• Previous conviction of accused if any with all details of previous conviction i.e date, place etc as per section 221,
• Particulars of the offence, time, place, date etc.
• Mentioning the gross sum in case of criminal breach of trust and dishonest misappropriation of money is sufficient.
• Manner and mode of offence committed must also be mentioned.
Trial before the Court of Magistrate (Chapter XX) -S. 241-A to 250-A
Supply of documents to accused is the very first step in the criminal trial before the Court of Magistrate under section 241-A Cr.P.C. The Magistrate shall supply copies of statements of all witnesses recorded under section 161, 164 Cr.P.C, memo or site inspection, FIR and any other document necessary for accused to defend himself in the trial free of cost not less then seven days from commencement of trial. The word “shall” is used in section 241-A Cr.P.C which states that it is mandatory that all relevant documents mentioned in this section must be provided to accused. In practice in vogue the receipt is also obtained from accused under his hand. In the case of a direct complaint, the memo of complaint, documents annexed with the complaint and statements recorded during inquiry shall be provided to the accused. The provisions of section 241-A Cr.P.C does not apply in cases where complaint is made by a Court or Public Officer discharging official duties (as is provided under section 195 Cr.P.C)
When accused is supplied the copy of required documents in compliance of section 241-A Cr.P.C, after seven days of supply of documents, the court of Magistrate shall proceed to framing of charge under section 242 Cr.P.C. Framing of charge is mandatory under this section as the words “Shall” is used. Section 242 Cr.P.C consists of two parts; First part pertains to framing of charge against accused for which is sent up by Investigation Officer; while the second part consists on recording of Plea of accused. The plea of accused shall be recorded in writing. Where accused pleads guilty under section 242 Cr.P.C, then the court of Magistrate may convict the accused on his plea of guilt under section 243 Cr.P.C. The word “may” is used in section 243 Cr.P.C which is of most important. It is generally held that where accused do not plead guilty on the date of framing of charge rather he pleads guilty later on, then the court may proceed for recording of evidence. It is necessary that the plea of guilty or admission of accused shall be recorded as nearly as in the words of accused. The court has to issue a show cause Notice under section 243 Cr.P.C to accused stating as to why he should not be convicted on his plea of admission to the guilt. On receiving the reply of show cause, the Magistrate has to consider the reply. Mere plea of accused regarding guilt is not sufficient for the conviction; hence show cause is necessary step to move forward for recording conviction.
In case where at the time of framing of charge, the accused does not plead guilty and denies the prosecution case, as set forth in the charge, or the Magistrate does not convict the Accused on plead guilty, the Magistrate has to proceed in view of section 244 Cr.P.C and call for evidence of prosecution side. In the case of Muhammad Jahangir vs The State , it is held that it would be imperative upon the court to record evidence of prosecution where accused denied the charge. The magistrate shall record evidence of complainant (if any) and take all evidence produced in support of the case under section 244 Cr.P.C. The Magistrate is not bound to hear any complainant, where complaint is made by any court.
After taking all the evidence on prosecution side, the Magistrate on close the side of prosecution evidence, shall hear the accused and may also take all such evidence as produced by accused. The Magistrate may also summons any witness on application of complainant or on application of accused, after recording his reasons, for evidence or for production of such documents in the court. the Magistrate may require reasonable expenses of such witness from the complainant or the accused, as the case may be. However, the accused shall not be required to deposit the costs if he is charged for offence attracting imprisonment for more than six months.
Statement of accused (section 342 Cr.P.C and section 340 (2) Cr.P.C)
Statement of accused is recorded under section 342 Cr.P.C. without oath after close of the prosecution side, under section 342 Cr.P.C. The court puts such questions to the accused as necessary wherein all incriminating evidence is put before the accused. If accused refuses to answer any such question, it shall not make him liable for punishment. Article 134 QSO provides that where no oath is given to any witness then there is no right of cross examination. The answers given by accused may be considered for awarding conviction to or acquittal of accused. Such answers may also be used in any other inquiry or trial for any other offence. The statement of accused under section 342 Cr.P.C is recorded before the accused is called on for his defense. Generally two important questions are put to accused in the statement under section 342 Cr.P.C which are: 1. Whether accused wanted to be examined on oath under section 340 (2) Cr.P.C in his defense? 2. Whether the accused will examine any witness in his defense? The accused if opts to be examined on oath under section 340 (2) Cr.P.C, then he shall be examined on oath and the prosecution has right to cross examine the accused. The accused while replying to the question regarding examination of defense witnesses, is required to give names of the witnesses in his reply. The Statement of accused is required to be certified as per requirements of section 364 Cr.P.C, by the judge as held in the case of Muhammad Rafiq vs state case by the Peshawar High Court . The prosecution or complainant cannot propose the questions to be put to the accused as held in the case of Ghulam Rasool vs the State . The statement of accused under section 342 Cr.P.C is not considered as confession of accused before the court. when accused opted to be examined on oath then his statement on oath under section 340 (2) Cr.P.C. is to be recorded by the court. The accused cannot be believed to be guilty, if he does not opt to be examined on oath. Where the court fails to put question in statement under section 342 CR.P.C regarding option of accused to be examined on oath, it is illegal. On completion of the examination of accused on oath and examination of his defense witnesses, if any, the defense side of evidence shall be closed. The statement of accused under section 342 Cr.P.C is mandatory requirement whereas statement of accused on oath under section 340(2) Cr.P.C is optional at the option of the accused.
On completion of evidence and statement of accused the Magistrate shall record the order of acquittal or conviction based on available evidence. The acquittal order is provided under section245 (1) Cr.P.C whereas the conviction of accused is provided under section 245 (2) Cr.P.C. provisions regarding judgment are provided under chapter XXVI of the code.
The complainant, with permission of the Court, may withdraw his complaint (filed u/s 200 Cr.P.C) under section 248 Cr.P.C.
The Magistrate may stop proceeding under section 249 Cr.P.C. without passing judgment of acquittal or conviction. The application under section 249 and 249-A Cr.P.C can be moved at any stage. It is held by the superior court that generally after recording of most of the evidence, the provisions of section 249 and 249-A Cr.P.C may not be applied as is held in case of Sardar Amjad Ali Khan vs The state . Accused may be acquitted under section 249-A Cr.P.C. by the Magistrate at any stage of the case. The Magistrate shall hear the prosecutor and accused. The grounds for invoking the provisions of section 249-A Cr.P.C is groundless charge or there is no probability of the accused being convicted of any offence to nip the evil in the bud.
The order of acquittal under section 249-A Cr.P.C and the acquittal judgment recorded by Magistrate under section 245(1) Cr.P.C are appealable under section 417 Cr.P.C before the High Court.
Section 250 Cr.P.C provides compensation to the accused on his acquittal if the case was false or vexatious accusation was founded by complainant. The Magistrate of first class may award compensation up to Rupees Twenty five Thousand only whereas Magistrate is of third class the limit is provided upto Rupees two thousand and five hundred only. If the compensation awarded by Magistrate of second Class or third Class which exceeds Rupees Fifty only, the complainant may prefer appeal under section 250 (3) Cr.P.C and the payment shall not be made until appeal period is expired.
Summary trial
Summary Trial means there may not be a formal trial or evidence in the case. The procedure of summary trial is provided in Chapter XXII of the Cr.P.C. this procedure is for the minor offence and not for heinous offence, as detailed in section 260 Cr.P.C. There is no sentence of imprisonment in summary trial except for a sentence of imprisonment which does not exceed three months. The Magistrate of 2nd Class or The Magistrate of 3rd Class are empowered by the Provincial Government under section 261 Cr.P.C to try the offences. The details of offences triable summarily by the Magistrates of 1st Class or 3rd Class are given in section 260 (a) to 260 (d) Cr.P.C. The magistrate is not required to frame charge or record evidence in summary trial where there is no right of appeal. The magistrate must only mention serial number, date of offence, date of complaint reported, name of complainant (if any), full name and residential address of accused, offence, value of property, if case falls. Minor offences are tried summarily before the Magistrate. The List of offences is provided under that provision of section 260 (a) to (m) Cr.P.C. Those offences do not attract punishment of more than six months. The offences regarding weights and measures, hurt offences under section 337-A(i) PPC, 323 PPC, offences under section 379, 380, 381, 403, 411, 414, PPC where value of property does not exceed ten thousand only. Offences under section 427 PPC, 448,451, 453, 454, 456, 457, 504, 171-F PPC and abetment of or attempt to commit any of such offences as mentioned above. The offences under section 20 of the Cattle-trespass Act, 1871 are also tried summarily.
The procedure of Summary Trial is followed as provided under Chapter XX Cr.P.C. The Magistrate shall note the serial number, date of commission of offence and date of report, the name of complainant in full with address, the value of property if any, plea of accused , fine, brief reasons of conviction, if any, final order and date of termination of proceedings. No charge or evidence is recorded. In summary trial there is no right of appeal in certain offences/convictions. It is the discretion of Magistrate as to try the offence summarily or to proceed for recording of evidence.
Key Features of Summary Trials
The summary trial is applicable to petty offences. There is no protracted, complicated and multiple stage trial process. It reduces the back log in speedy manner. There is no need to frame charge and record evidence. There is no appeal in some case which means the trial is culminated at first instance where the punishment is not more than 3 months imprisonment. The Magistrate has to record only few details of the incident, complaint etc. It is worth to note that the right of Fair Trial, as guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, shall always be considered by the Magistrate. Where Magistrate considers that trial is required or details of the offence are to be placed before the accused, then a formal charge shall be framed.
Trial before the High Court and Court of Sessions [S. 265-A to 265-N]
The procedure of trial for the High Court and that of Court of Sessions is provided un chapter XXII-A Cr.P.C. Supply of statements and documents under section 265-C Cr.P.C. list of documents is given in the section. However other documents which are necessary for fair trial may also be supplied to accused which may include any electronic device, audio, video recording etc as held in the case of Sikandar Ali Lashari vs the State . Charge may be framed under section 265-D Cr.P.C, if the court is of opinion that there is ground for proceeding with trial. Where charge has been framed that plea of accused on charge is recorded under section 265-E Cr.P.C. If accused pleads guilty the Court may in its discretion convict him as per law. Prior to considering the plea of accused a show cause notice is to be issued to accused. it is the requirement of fair trial that reply of the show cause notice is to be given by accused. After hearing accused or advocate for accused, the court may pass order u/s 265-E(2) Cr.P.C as per law. Where accused pleads not guilty under section 265-E(i) Cr.P.C, then evidence for prosecution is recorded under section 265-F Cr.P.C. The court may examine accused and his witnesses, if any, under section 265-F (4) Cr.P.C. On close of evidence of prosecution, the court may examined accused without oath under section 342 Cr.P.C as provided under section 265-G Cr.P.C. where accused opts to be examined on oath, his evidence shall be recorded on oath under section 340 (2) Cr.P.C. Prosecution has right of cross examination upon evidence of accused so recorded on oath. The court may also call witnesses if required to be produced by accused for their evidence. It is pertinent to mention here that during evidence the original documents shall be produced as documentary evidence. Side close of defense under section 265-G (2) Cr.P.C is to be done.
Power of the Court to acquit accused under section 265-K Cr.P.C.
The High Court and the Court of Sessions has power to acquit the accused any stage of proceedings. The powers of the court are extensive and there is no impediment upon it to acquit accused at any stage under section 265-K Cr.P.C. The discretion of the court must be based on reasons, exercised with due care and caution with sole object to prevent fruitless trial where it is apparent from the record that there is no probability of accused being convicted of the offence.
OTHER PROCEEDINGS DURING TRIAL PRIOR TO FINAL DISPOSAL
Dispensing with attendance of accused to attend the trial
The general principle of law under section 353 Cr.P.C is that the evidence must be recorded in presence of accused. Section 364 Cr.P.C Section 205 Cr.P.C is exception to this rule. Section 205 Cr.P.C. empowers Court or the Magistrate to dispense with personal attendance of accused and he shall be represented by his pleader. It is the discretion of the court to dispense with attendance of accused if reasonable grounds are available. The Court or the Magistrate may call accused to attend the court at any stage of trial or inquiry. The provisions of section 540-A Cr.P.C. Section 512 Cr.P.C being special rule of evidence provides that the competent court may record evidence of available witnesses in absence of accused. Such evidence may be used against accused on his arrest during inquiry or trial as per law.
Where evidence is recorded in absence of accused under section 512 Cr.P.C then the provisions of Article 47 Quanoon-e-Shahadat Order, 1984 could be considered in subsequent proceedings. The provisions of Article 47 Quanoon-e-Shahadat Order, 1984 relate to the evidence given in any judicial proceedings relevant to prove for any subsequent judicial proceedings or at some later stage of same judicial proceedings. The Articles provides that in case where the witness is dead, or cannot be found, or is incapable of giving evidence or is kept out of the way by opposite or adverse party, or his attendance cannot be obtained without an amount of delay or expenses, the court may consider the such previous evidence in subsequent stage of proceedings. There are certain conditions for considering the previously recorded evidence in subsequent judicial proceedings or some other related proceedings. The proceedings must be between same parties or their representatives-in-interest. There must be right of cross examination to the adverse party. The question in issue must be substantially same in the first and the second proceedings. Same proposition is held in the case of Tanveer Ahmed vs The State . It is noted that above are conditions present before a previous deposition could be admitted for consideration. Absence of any one of them would not attract said Article nor was there compulsion to straightaway believe such deposition if rightly or wrongly brought on record. In other words, said Articles only makes the statement of witness admissible in evidence and it is always open to the person against whom said statement is brought to show that it could not be believed for valid reasons given by him. Learned state counsel submitted that since the statement of complainant was brought on record with consent of the parties, its relevancy and validity could not be challenged. This proposition, however, is not correct for the simple reason that an inadmissible evidence cannot be made admissible by consent of the parties. The criminal trial or inquiry is deemed to be proceedings between prosecution and the accused. Statement of a complainant under section 200 Cr.P.C recorded by the Magistrate is thus relevant under Article 47 Quanoon-e-Shahadat Order, 1984. It is settled principle of law that inadmissible evidence cannot be made admissible by consent of parties. It is held in case of Ali Akbar vs The State that consent of parties to produce evidence in subsequent proceeding which evidence is inadmissible, cannot be made admissible by consent of parties. However, the evidence recorded in one case cannot be considered in another separate case under Article 47 Quanoon-e-Shahadat Order, 1984.
Bail
Bail is the temporary release of the accused person from custody, pending trial or investigation, on the condition that the accused will appear before the court as and when required. The release of accused on bail is a detailed subject which requires a separate discussion; however here we shall ponder a brief on it.
The Code of Criminal Procedure, 1898 provides different provisions for release of accused on bail with or without surety during inquiry, trial and in appeal. Any person arrested by a police officer shall not be released except on his own bond or on bail or by orders of the Magistrate under section 63 Cr.P.C. Release under section 63 Cr.P.C. does not mean that Investigation Officer has ceased with the powers to investigate the offence. The IO shall continue with investigation of the case to the logical conclusion. The Magistrate is empowered to discharge the accused under section 63 Cr.P.C who is arrested by a police officer; in the case which is triable by the Magistrate, the Court of Sessions or any Special Court. The discharge of accused under section 63 Cr.P.C. is power of the Magistrate where the accused is brought under section 167 Cr.P.C. In case where in Investigation Officer is of the opinion that there is no sufficient evidence collected during investigation, he may discharge accused under section 169 Cr.P.C if the accused is in police custody on executing bond with or without sureties. In case where the accused is in judicial custody, the IO shall apply to the concerned Magistrate for passing orders on application under section 169 Cr.P.C. moved by IO for discharge of accused. The scheme of law under section 169 Cr.P.C. does not empower the IO to evaluate the defense evidence and discard the prosecution evidence. Though the ipsi dixit of police is not binding upon the court despite of such fact, it would not be fair and just to drag an innocent person into the court to face hardship of trial where prima facie offence is not made out against the accused.
The concept of bail is divided into three major portions in Cr.P.C. the first part is given under section 496 Cr.P.C where bail is granted in bailable offences as a right of accused. The second part is Post Arrest Bail in non bailable offence. There are certain conditions in granting of such bail after arrest. The third part is Pre-arrest Bail which is provided under section 498-A Cr.P.C. There are three pre-requisites for consideration of bail under section 498-A Cr.P.C. those conditions are that 1) the accused should be in custody (for post arrest bail), or 2) should be present in the court (for pre-arrest bail), or 3) there should be a case registered (for protective bail).
Adjournment of proceedings
The Criminal courts are empowered under section 344 Cr.P.C to postpone or adjourn the inquiry or trial and if accused is in custody, then the remand with warrant shall not exceed fifteen days. The court may adjourn the proceeding time to time with reasons, therefor.
Compromise
In Criminal Cases certain offences under sections of Pakistan Penal Code, 1860, are made compoundable under Section 345 (1) Cr.P.C by persons/victim without permission of Court. These offences are not heinous in nature. Under section 345 (2) the list of offence under sections of The Pakistan Penal Code, 1860 are made compoundable with permission of the court. The compromise application can be filed at any stage of the criminal case. It may be filed during trial, at the stage of appeal before the appellate court. The compromise application can be filed before any court where the proceedings are being adjudicated up-to the Supreme Court level. The Compromise application may also be filed after conclusion of trial, appeal etc. It is held in the case of Nazak Hussain vs the State , by the Supreme Court of Pakistan that in view of section 338-E (2) PPC that accused can approach the trial court for compromise after dismissal of appeal by the Supreme Court. The guidelines were circulated the lower judiciary of Pakistan. Section 345 (6) Cr.P.Cs uses the word “Effect of acquittal” in compromise cased. It is most important word used by the legislature in this section. It does not mean that the disposal of case under section 345 (6) Cr.P.C amounts to honorable acquittal. It has long standing effects on the case of the accused. Where a compromise occurred between victim and the Accused party, the accused is given effect of acquittal but not acquittal. The compromise cannot bolt out the guilt of accused . The accused, in case of murder of his predecessor in interest, if acquitted under section 345 (6) Cr.P.C shall not be entitled for getting share of the inheritance as one of the legal heirs of the deceased/victim against whom the accused was charged for.
Accomplice-337, 338 Cr.P.C
The accomplice is a person supposed to have directly or indirectly concerned in or privy to the offence. He is guilty associate. Article 16 of the Quanoon-e-Shahadat Order, 1984 makes an accomplice a competent witness. Similarly Article 17 of the Quanoon-e-Shahadat Order 1984 provides competency and number of witnesses. The court may presume under Article 129 (2) of the QSO, 1984 that an accomplice is unworthy of credit unless he is corroborated in material particulars. Conviction of the accused may be based solely on the evidence of an accomplice. The conditions for acceptance of evidence of an accomplice is discussed in detail in the case of Ghulam Qadir and another vs The State by the Supreme Court of Pakistan.
In Pakistan, Section 337 and Section 338 of the Code of Criminal Procedure (Cr.P.C.), 1898, deal with different legal procedures related to criminal cases. Here’s the key difference between them:
Section 337 Cr.P.C. – Tender of Pardon to an Accomplice
This section allows a Magistrate or Court to grant a pardon to an accused person (accomplice) who is willing to reveal full and true facts about the crime. The purpose is to obtain evidence against the main offenders in serious cases. The pardon is granted before the trial or during the investigation to encourage the accomplice to testify truthfully. The pardon is conditional—if the accomplice fails to comply, they can be tried. The Magistrate shall record the statement of accused under section 337 Cr.P.C in the manner prescribed under section 364 Cr.P.C. No police official or officer is authorized to offer pardon to any accused, desirous of making a statement with a view to obtaining pardon, as per Rule 25-29 of the Police Rules.
Section 338 Cr.P.C. – Power to Direct Tender of Pardon
This section gives the High Court or Court of Session the authority to order a lower Court (Magistrate) to grant a pardon to an accomplice. It ensures that if a Magistrate refuses to grant a pardon under Section 337, a higher Court can intervene and direct the Magistrate to reconsider. The higher Court does not directly grant the pardon but instructs the Magistrate to do so if appropriate.
Key Difference:
Aspect Section 337 Cr.P.C. Section 338 Cr.P.C.
Who Grants Pardon? Magistrate or Trial Court High Court or Session Court orders Magistrate to grant pardon
Stage During investigation or trial When Magistrate refuses pardon under S.337
Purpose To obtain evidence from accomplice To ensure fair use of pardon power
Judgment
The judgment is judicial verdict deciding a case finally so for as the Court seized of the case is concerned . After completion of evidence of prosecution and accused, if any, the Court shall record an order of Acquittal under section 265-H (i) Cr.P.C. Where the court after considering the evidence of prosecution and defense of accused is of the opinion that prosecution has proved its case beyond shadow of reasonable doubt, then the court shall pass sentence upon accused in accordance with law under section 265-H (2) Cr.P.C.
Chapter XXVI of Cr.P.C deals with judgment. Section 366 Cr.P.C provides the mode of delivering the Judgment in criminal case. This section applies to all the criminal courts which follows the procedure of Cr.P.C. All the criminal courts shall pronounce the judgment in open court either immediately after termination of the trial or at some other subsequent time after notice to the parties or their counsel. The termination of trial means where evidence of prosecution is taken, the statement of accused under section 342 Cr.P.C or statement of accused on oath under section 340 (2) Cr.P.C and defense evidence (if any) is taken by the court and the case has been summed up by prosecution and defense sides. The language of the judgment shall be the language of the Court or some other language which accused or his counsel understands. The presiding officer shall read whole judgment if requested by either parties i.e. prosecution or accused side. It is mandatory requirement of section 366 (2) Cr.P.C that accused shall be brought before the court, if he is in custody or required to be in attendance on the day when judgment is to be announced. There are only two exceptions from attendance of accused. Firstly, when personal attendance of accused is dispensed with by the court during trial and secondly, when the judgment is of only fine or of acquittal. In these cases the judgment may be delivered in presence of pleader for accused. The protection for delivery of judgment by the court as mentioned above is provided is given under clause (3) of section 366 Cr.P.C. The judgment is deemed to be valid, if it is delivered in absence of party or his pleader, if announced on the day when the case was fixed for such purpose and parties were on notice. It is held in the case of Mst. Zakia and others vs The State where appellant has filed appeal against conviction and his sentence was suspended but later on accused has absconded away. The court can decide the appeal in absence of appellant on merits. The judgment must contain points for determination and decision on such points as held by the Sindh High Court, in the case of Hameedullah vs State . The judgment must mention section of law under which the accused is convicted. The mandatory points under section 367 Cr.P.C for a valid judgment in criminal trial are given below:
a- The judgment shall be written by the presiding officer or on his dictation
b- In the language of court or English
c- Shall contain point or points for determination
d- The decision on such point or points for determination
e- The reasons on decision on such point or points for determination.
f- Shall be dated
g- Shall be signed by the presiding officer at the time of pronouncement
(Where it is not written in handwriting of the Presiding Officer, then every page shall be signed by the presiding officer)
h- The judgment shall specify the offence and section of PPC or other laws under which the accused is convicted.
i- It shall also mention the punishment to which accused is sentenced.
j- The judgment shall mention specifically under which section or which part of same section of the Code offence falls and shall express the same in case of alternative judgment.
k- In case of acquittal, the judgment shall state the offence of which accused is acquitted
l- The acquittal judgment shall also direct that accused be set at liberty.
m- In case of an offence punishable with death sentence, the court punishes the accused with other than death sentence; the judgment shall state reasons as to why death sentence is not passed.
n- The orders under section 118 Cr.P.C or section 123 (3) Cr.P.C are deemed to be a judgment.
o- No judgment shall be altered once signed by the Presiding officer, (s.369 Cr.P.C.)
It is mandatory that copy of judgment must be provided to the accused in case the accused is convicted by the court, free of cost, at the time of pronouncement of the judgment without delay. In case accused is sentenced to death, the Sessions Court shall also inform the accused about period of limitation for filing of appeal, if so desired. On conclusion of trial a copy of judgment shall be sent to the officer in charge of the prosecution under section 373 Cr.P.C. The Sessions Court, in case of death sentence, shall submit the proceedings (Record and Proceedings: R & Ps) to the High Court for confirmation of death sentence. Till then the execution of death sentence shall not be held. In general it is called murder reference for confirmation as provided under section 374 Cr.P.C.
Conclusion
The trial procedure in criminal cases in Pakistan is a structured legal process that begins with investigation and culminates in the determination of guilt or innocence through various modes of trial. Whether it is a summary trial, a trial before a Magistrate, or proceedings before the Court of Sessions or the High Court, each stage—from the registration of the FIR and submission of the challan to framing of charges and recording of evidence—is governed by the Criminal Procedure Code, 1898. Provisions such as Section 249-A Cr.P.C. and Section 265-K Cr.P.C. empower the courts to acquit an accused at any stage of the proceedings where there is no evidence to further continuation of trial. The role of accomplices, availability of compounding of offences through compromise, and application of legal safeguards ensure that the rights of both the accused and the victim are preserved. Collectively, these procedures reflect a balance between due process, judicial discretion, and efficient administration of justice within Pakistan’s criminal justice system.
Sections of Cr.P.C and related Police Rules, 1934
Sr. No. Section of Cr.P.C Police Rule (Chapter-Rule) Remarks
1. 154, 155 24-1, 24-3 Information of offence, action of Non-cog offence
2. 154 24-5 154 Cr.P.C Register (200 pages) 50 FIRs in one book (original FIR shall be preserved for sixty years at PS)
3. 157 25-1 (2) To proceed to place of incident
4. 160-175 25-2 Powers of IO
5. - 25-3 and 25-4 Offence occurred in jurisdiction of other PS
6. 157 (1)b 25-9, 25-10 Optional investigation powers, Immediate dispatch to place of incident
7. 155(3) 25-11 Investigation in Non-cognizable offences
8. 25-13 Site inspection and site plan
9. 161 25-18 Statements
10. 103 25-23 search
11. 364 25-27
25-28 Confessions
Statements recorded by Magistrates
12. 337, 338 25-29 Confession of accused and approver
13. 174 25-31, 25-32, 25-35 Inquests & its investigation
14. 61, 167 25-56 Incomplete charge sheet
15. 173 25-57 Close of investigation
Books referred:
1. The Code of Criminal Procedure, 1898
2. Pakistan Penal Code, 1860
3. The Constitution Islamic Republic of Pakistan, 1973
4. The Police Rules, 1934
5. The Qanun-e-Shahadat Order 1984
6. The Limitation Act, 1908
7. PLD, SCMR, MLD, P.Cr.LJ, YLR, PLJ and
8. www.pakistanlawsite.com
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