Online Legal Research and Law Library
Table of Contents
Preamble
Part I: Introductory [Articles 1-6]
Part II: Fundamental Rights and Principles of Policy [Articles 7-40]
Chapter 1: Fundamental Rights [Articles 8-28]
Chapter 2: Principles of Policy [Articles 29-40]
Part III: The Federation of Pakistan [Articles 41-100]
Chapter 1: The President [Articles 41-49]
Chapter 2: Majlis-e-Shoora (Parliament) [Articles 50-89]
Chapter 3: The Federal Government [Articles 90-100]
Part IV: Provinces [Articles 101-140A]
Edition: 2019
1. Short title, extent, application and commencement.
2. Definitions.
3. Declaration of Intent.
4. Calling in of armed forces and civil armed forces to prevent terrorism of civil powers.
5. Use of armed forces and civil armed forces to prevent terrorism.
6. Terrorism.
7. Punishment for acts of terrorism
8. Prohibition of acts intended or likely to stir up sectarian hatred.
9. Punishment for offence under section 8.
10. Power to enter or search.
11. Power to order forfeiture.
11 A. Organizations concerned in terrorism.
11 B. Prescriptions.
11 C. Right of Review.
11 D. Observation order.
11 E. Measured to be taken against a prescribed organization.
11 F. Membership, support and meetings relating to a Prescribed Organization.
11 G. Uniform.
11 H. Fund raising.
11 I. Use and possession.
11 J. Funding Arrangements.
11 K. Money-laundering.
11 L. Disclosure of Information.
11 M. Cooperation with the Police.
11 N. Punishment under Sections 11-H to 11-K.
11 O. Seizure and detention.
11 P. Application by authorized officer to Court.
11 Q. Forfeiture.
11 R. Authorized officer may apply to Court for forfeiture.
11 S. Appeal against forfeiture order under Section 11-R.
11 T. Deposit of Cash in a fund.
11 U. Deproscription.
11 V. Directing terrorist activities.
11 W. Printing, publishing, or disseminating any material to incite hatred or giving Projection to any person convicted for a terrorist act or any prescribed Organization or placed under observation or anyone concerned in terrorism.
11X. Responsibility for creating civil commotion.
12. Jurisdiction of (Anti-Terrorism Court).
13. Establishment of (Anti-Terrorism Court).
14. Composition and appointment of presiding officers of (Anti-Terrorism Court).
15. Place of sitting.
16. Oath by (Anti-Terrorism Court).
17. Powers of (Anti-Terrorism Court). With respect to other offences.
18. Public Prosecutors.
19. Procedure and powers of Anti-Terrorism Court.
20. Punishment Paragraph Omitted.
21. Protection of Judges, Counsel, Public Prosecutor, witnesses and persons concerned with
Court proceedings.
21 A. Cordons for Terrorist Investigation.
21 B. Terrorist Investigation.
21 C. Training.
21 D. Bail.
21 E. Remand.
21 F. Remissions.
21 G. Trail of offences.
21 H. Conditional admissibility of confession.
21 I. Aid and abetment.
21 J. Harbouring.
21 K. Offences triable by way of summary procedure.
21 L. Punishment for an absconder.
21 M. Joint Trial.
22. Manner and place of execution of sentence.
23. Power to transfer cases to regular Courts.
24. appellate Tribunal.
25. Appeal.
26. Omitted
27. Punishment for defective investigation.
28. Transfer of Cases.
29. Trial before (Anti-Terrorism Court) to have precedence.
30. Modified application of certain provisions of the Code.
31. Finality of Judgment.
32. Overriding effect of Act.
33. Delegation.
34. Power to amend the Schedule.
35. Power to make rules.
36. Savings.
37. Contempt of Court.
38. Punishment for terrorist act committed before this Act
39. Indemnity.
39 A. Removal of difficulties.
39 B. Repeal and Savings.
40. Amendment of the Criminal Law Amendment Act, 1908 (XIV of 1908). First Schedule
Second Schedule Third Schedule
THE ANTI-TERRORISM ACT, 1997[1]
ACT NO. XXVII OF 1997
[20th August, 1997]
No. F. 9(39)/97-Legis, dated 20th August. 1997. “The following Act of Majlis-e-Shoora (Parliament ) received the assent of the President on the 16th August, 1997, is hereby published for general information:
An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences.
Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto:
It is hereby enacted as follows:
1. Short title and commencement.
1) This Act may be called the Anti-terrorism Act, 1997.
2) It extends to the whole of Pakistan.
3) It shall come into force at once. [Punjab Province]
Punjab Province
For the purposes of the prevention and punishment of the commission of terrorist acts
and scheduled offences to have resort to the provisions of the said Act for the whole
of the Province of Punjab S.R.O. 662(1)/97, dated 21.8.1997[2]
2. Definitions. In this Act, unless there is anything repugnant in the subject or
context;
a) “armed forces” means the Military, Naval and Air Forces of Pakistan and the Reserves of such Forces;
b) “civil armed forces” means Frontier Constabulary, Frontier Corps, Pakistan Coast Guards, Pakistan Rangers or any other civil armed force notified by the Federal Government as such;
c) “Code” means the Code of Criminal Procedure, 1898 (Act V of 1898 );
d) “Child” means a person who at the time of the commission of the offence has not attained the age of eighteen years;
e) “court” means an Anti-terrorism Court established under section 13:
f) “explosives” means any bomb, grenade, dynamite, or explosive, substance capable of causing any injury to any person or damage to any property an includes any explosive substance as defined in the Explosives Act, 1884(IV of 1884);
g) “fire-arms ” means any or all types and gauges of handguns, rifles and shotguns, wether automatic, semi-automatic or bolt action, and shall include all other fire-arms as defined in Arms Ordinance 1965 (W.P. Ordinance XX of 1965);
h) “fine” means a pecuniary amount to be determined by the Court having regard to the facts and circumstances of the cases;
i) “Government” means the Federal Government or , as the case may be , the Provincial Government;
j) “grievous”, in relation to bodily injury means emasculation, mutilation, incapacitation disfigurement or serve harm or hurt: and in relation to property, means severe loss, damage or destruction;
k) “High Court” means the High Court having territorial jurisdiction has been established;
l) “hijacking” means any unlawful seizure or exercise of control, or any attempt at unlawful seizure or exercise of control, of an aircraft, by force, violence, threat or any form of abstruction, directly or through any other person, from within or outside the aircraft;
m) “hostage-taking” means the holding of a person captive with threats made to kill or harm that person if demands are not met.
n) “kidnapping for ransom” mean the action of conveying any person from any place, without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him any demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release;
o) “meeting” means a meeting of two or more persons, whether in public or private;
p) “organization” means any group, combination or body of persons acting under a distinctive name;
q) “prescribed organization” means any organization using a name which is listed in the First Schedule under Section 11B;
r) “public servant” shall have the same meaning as in Section 21of the Pakistan Penal Code 1860. or law for the time being in force;
s) “Schedule” means a Schedule to this Act;
t) “Schedule offence” means an offence as set out in the Third Schedule;
u) “sectarian” means pertaining to devoted to, peculiar to, or one which promotes interest of a religious sect or sects, in a bigoted or prejudicial manner;
v) “sectarian hatred” means hatred against a group of persons defined by reference to religion, religious sec, religious persuasion, or religious belief;
w) “serious” means dangerous to life or property;
x) “terrorism” or “act of terrorism ” act has the meaning as assigned to it in Section 6;
y) “terrorist” has the meaning as assigned to it in Section 6(5).
z) “Terrorist investigation” means an investigation of
a. the commission, preparation or investigation of acts or terrorism under this Act;
b. an act which appears to have been done for the purposes of terrorism;
c. the resources of a prescribed organization;
d. the commission, preparation or instigation of an offence under the Act; or
e. any other act for which investigation may be necessary for the purposes of this Act.
aa) “terrorist property” means”
i. (a)Money or other property which is used or is likely to be used for the purposes of terrorism (including any resources of a prescribed organization).
(b) Proceeds the commission of acts of terrorism.
(c) Proceeds of acts carried out for the purposes of terrorism; and
ii. In subsection (i) above
(a) a reference to proceeds of an act, includes reference to any property which wholly or partly, and directly or indirectly, represents the proceeds of the act (including payments of other rewards in connection with the commission);
(b) The reference to an organization’s resources includes a reference to any money or other property which is applied or made available, or is to be applied or mad available, for use by the organization and includes assets of any kind, whether tangible or intangible, movable or immovable, and legal documents or instruments in any form, wether written, electronic or digital and shares, securities, bonds, drafts and letters of credit; and
(c) a reference to money includes a reference to any cash which means any coins, notes in any currency, postal orders, money orders, and such other kinds of monetary instruments as the Federal Government may by order specify;
bb. “weapon” means any item which can be used to injure or cause bodily harm, and includes any type of fire-arm, explosive, sword, dagger, knuckle-duster, stengun, bomb, grenade, rocket launcher, mortar or any chemical, biological thing which can be used for causing injury, hurt, harm or destruction of person or property, and includes“ illicit arms” as defined in the Surrender Illicit Arms Act. 1991 (XXI of 1991); and
cc. all other terms and expressions used bit not defined in this Act, shall have the meanings as are assigned to them in the Pakistan Penal Code, 1860, or the Code of Criminal Procedure, 1898. Subs. By Ordinance XXXIX of 2001[3]
3. Declaration of Intent.- Omitted by Ordi. XXXIX of 2001.
4. Calling in of armed forces and civil armed forces in aid of civil powers.-
1) It shall be lawful for the Federal Government to order, and subject to sub-section
(2) for the Provincial Government to secure, the presence of armed forces and civil armed forces in any area for the prevention and punishment of terrorist acts and scheduled offences in accordance with the provisions of this Act.
2) If, in the opinion of the Provincial Government, the presence of armed forces, or civil armed forces, is necessary in order to prevent the commission of terrorist acts or scheduled offences in any area, it may request the Federal Government to direct the presence or posting of units or personnel of the armed forces, or civil armed forces, in such numbers as may be deemed necessary for the prevention or control of terrorist acts or scheduled offences.
3) The Federal Government may decide whether the requirements of the situation call for the deployment of
i. The civil armed forces; or
ii. The armed forces,
And so deciding shall, by means of a notification in the official Gazette issued under clause (i) or (ii) authorize and direct the posting there of.
5. Use of armed forces and civil armed forces to prevent terrorism.
1) Any police officer, or member of the armed forces, or civil armed forces who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code.
2) In particular and without prejudice to generality of the provisions of sub-section(1) , an officer of the police, armed forces and civil armed forces may:–
i. After giving prior warning use such force as may be deemed necessary or appropriate bearing in mind all the facts and circumstances of the situation, against and person who is committing[4] [] a terrorist act or a scheduled offence, and it shall be lawful for an such officer, or any superior officer, to fire, or order the firing upon any person or persons against whom he is authorized to use force in terms hereof:
ii. Arrest, without warrant, any person who has committed an act of terrorism or a scheduled offence or against whom a reasonable suspicion exist that he has committed, or is about to commit, any such act or offence; and
iii. Enter and search, without warrant any premises to make any arrest or to take possession of any property, fire-arm, weapon or article used, or likely to be used, offence.
3) Nothing contained in sub-section (1) or (2) shall affect the provisions of Chapter IX of the Code and the provisions of section 132 of the Code shall apply to any person action under this section.
6. Terrorism.-
1) In this Act. “terrorism” means the use or threat of action where:
(a) The action falls with the meaning of sub-section (2). And
(b) The use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or
create a sense of fear or insecurity in society; or
(c) The use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.
2) An “action” shall fall within the meaning of sub-section(1), if it:
(a) Involves the doing or anything that causes death;
(b) Involves grievous violence against a person or grievous body injury or harm to person;
(c) Involves grievous damage to property:
(d) Involves the doing of anything that is likely to cause death or endangers a person’s life;
(e) Involves kidnapping for ransom, hostage-taking or hijacking;
(f) Incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) Involve stoning, brick-batting or any other from of mischief to spread panic:
(h) Involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing
(i) to spread panic, or involves any forcible takeover o mosques or other
places of worship;
(j) Creates a serious risk to safety of public
Or a section of the public, or is designed to frighten the general public and
thereby prevent them from coming out and carry8ing on their lawful trade
and daily business, and disrupts civil (civic) life;
Involves the burning of vehicles or an other serious form of arson;
(k) Involves extortion of money (bhatta) or property;
(l) Is designed to seriously interfere with or seriously disrupt a communications system or public utility service;
(m) Involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) Involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
3) The use or threat or use of any action falling within sub-section (2) which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not subsection 1 (c) is satisfied.
4) In this section “action” includes and act or a series of acts.
5) In this Act, terrorism includes any act done for the benefit of a prescribed organization.
6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
7) In this Act, a “terrorist ” means:
(a) A person who has committed an offence or terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism;
(b) A person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in Clause (a) above.
7. [[5]Punishment for acts of terrorism.- whoever commits an act of terrorism under Section 6, whereby
(a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine; or
(b) he does anything like to cause death or endangers life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment for description for a term which shall be not less than five years but may extend to fourteen years and with fine:
(c) grievous bodily harm or injury is caused to any person, shall be punishable, on conviction, with imprisonment of either but may extend to imprisonment for life and shall also be liable to a fine; or
(d) grievous damage to property is caused, shall be punishable on conviction, with imprisonment, of either description for a term not less than ten years and not exceeding fourteen years, and shall also be liable to a fine: or
(e) the offence of kidnapping for ransom or hostage-taking has been committed, shall be punishable, on conviction, with death or imprisonment for life and shall be liable to forfeiture of property; or
(f) the offence of hijacking, has been committed, shall be punishable, on conviction, with death or imprisonment for life, and shall also be liable to forfeiture of property and fine;
(g) the act of terrorism committed falls under Section 6(2) (f) and (g), shall be punishable, on conviction, with imprisonment of not less than six months and not more than three years and with fine; or
(h) the act of terrorism committed falls under clauses (h) to (n) of sub-section (2) of Section 6, shall be punishable, on conviction, to imprisonment of not less than one year and not more than ten years and with fine; and
(i) any other act of terrorism not falling under Clauses (a) to (h) above or under any other provision of this Act, shall be punishable, and not less than six months and not more than five years or with fine or with both]
8. prohibition of acts intended or likely to stir up sectarian hatred.- A person who:-
(a) uses threatening, abusive or insulting words or behavior; or
(b) displays, publishes or distributes any written material which is threatening, abusive or insulting: or words or behavior; or
(c) distributes or shows or plays a recording or visual images or sounds which are threatening, abusive or insulting: or
(d) has in his possession written material or a recording or visual images or sounds
which are threatening, abusive or insulting with a view to their being displayed or published by himself or another,
Shall be guilty of an offence if:–
i. he intends thereby to stir up sectarian hatred; or
ii. having regard to all the circumstances, sectarian hatred is likely to be stirred up thereby.
9. Punishment for offence under section 8.- Whoever contravenes contravenes any provision of section 8 shall be punished with rigorous imprisonment for a term which may extend to seven years, or with fine, or with both.
10. Power to enter or search.– If any officer of the police, armed forces or civil armed forces is satisfied that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section 8 he may enter and search the premises where it is suspected the material or recording is situated and take possession of the same; [6][ Provided that the concerned, officer first record in writing his reasons and serve a copy thereof either on the person or on the premises.]
11. Power to order forfeiture.-
(1) [7](An Anti-Terrorism Court) by which a person is convicted of an offence under section9 shall order to be forfeited any material or recording referred to therein.
(2) Where the person who collected the material or recording cannot be found or identified the Special Court on the application of the official seizing the material or recording shall foreit the material or recording to the State to be disposed of as directed by it.
[8][11-A. Organizations concerned in terrorism.—For the purposes of this Act, an organization is concerned in terrorism if it-
a. Commits or participates in acts of terrorism;
b. Prepares for terrorism;
c. Promotes of encourages terrorism;
d. Supports and assists any organization concerned with terrorism;
e. Patronize and assists in the incitement of hatred and contempt on religious, sectarian or ethnic lines that stir up disorder;
f. Fails to expel from its ranks or ostracize those who commit acts of terrorism and present them as heroic persons:- or
g. Is otherwise concerned in terrorism.
11-B. Prescription:
(1) For the purposes of this Act, an organization is prescribed if-
a. The Federal Government, having reason to believe that an organization is concerned in terrorism, by order, lists it in the First Schedule;
b. It operates under the name as an organization listed in the First Schedule or it operates under a different name; or
c. The First Schedule is amended by the Federal Government in any way to enforce prescription;
(2) The Federal Government may be order, add or remove an organization from the first Schedule or amend it in any other way.
11-C. Right of Review.
(1) Where any prescribed organization is aggrieved by the order of the f Federal Government made under Section 11-B, it may, within thirty days of such order, file a review applications in writing, before the Federal Government shall after hearing the applicant, decide the matter within ninety days;
(2) An organization whose review application has been refused under sub-section (1) may file an appeal on the High Court within thirty days of the refusal of the review application.
(3) The Federal Government shall appoint a Prescribed Organizations Review Committee to determine all review applications under sub-section.(1)
11-D. Observation Order. Where the Federal Government, has reason to believe that an organization is acting in a manner that it may be concerned in terrorism:
1. The organization may be kept under observation, if
a. The name of the organization is listed in the Second Schedule by order of the Federal Government ; or
b. It operates under the same name as an organization listed in the second Schedule.
2. An organization or a person aggrieved by the observation order passed under subsection
(1) may file a review application before the Federal Government, which shall, after hearing the applicant, decide the matter within sixty days.
3. Where the organization is under observation, the Federal Government may further extend the period of observation, only after giving the organization an opportunity of f being heard.
4. Each observation period shall be for six m0onths, and may be extended by the Federal Government only after giving an opportunity of being heard to the organization concerned.
11-E. Measures to be taken against a prescribed organization.– Where any organization shall be prescribed .
(1) Amongst other measures to be taken by the Federal Government-
a. It offices, if any, shall be sealed;
b. Its accounts, if any shall be frozen;
c. All literature, posters, banners or printed, electronic, digital or other material shall be seized; and
d. Publication , printing or dissemination of any press statements, press conferences
or public utterances b or on behalf of or in support of a prescribed organization shall be prohibited.
(2) The Prescribed Organization shall submit all accounts of its Income and expenditure for its political and social welfare activities and disclose all funding sources to the competent authority designated by the Federal Government.
11-F. Membership, support and meetings relating to a Prescribed Organization.
1 A person is guilty of an offence if he belongs or professes to belong to a prescribed organization.
2. A person is guilty of an offence under sub-section (1) shall be liable of conviction to a term not exceeding six months imprisonment and a fine.
3. A person commits an offence if he,
a. Solicits or invites support for a prescribed organization, and the support is not, restricted to, the provision of money of other property; or
b. Arranges, manages or assists in managing, or addressing a meeting which he know is—
i. To support a prescribed organization;
ii. To further the activities of a prescribed organization; or
iii. To be addressed by a person who belongs or professes to belong to a prescribed
organization.
4. A person commit an offence if he addresses a meeting, or delivers a sermon to a religious gathering, by any means whether verbal, written, electronic, digital or otherwise, and the purpose of his address or sermon, is to encourage support for a prescribed organization or to further its activates.
5. A person commits an offence if he solicits, collects, or raises funds for a prescribed organization.
6. A person guilty of an offence under sub-sections (3), (4) and (5) shall be liable on conviction to a term of imprisonment not less than one year and not more than five and a fine.
11-G. Uniform.
1) A person commits an offence if he-
(a) Wears carries or displays any article, symbol, or any flag or banner connected with or associated with any prescribed organization; or
(b) Carries, wears or displays any uniform, item of clothing or dress in such away or in such circumstances as to arouse reasonable suspicion that he is a member or
supporter of a prescribed organization.
2) A person who commit an offence under sub-section (1) shall be liable by
way of summary procedure to simple imprisonment for a term not more exceeding three months or to a fine or to both
11-H. Fund raising.
1) A person commits an offence if he—
(a) Invites another to provide money or other property, and
(b) Intends that it should be used, or has reasonable cause to suspect that it may be used, for the purpose of terrorism.
2) A person commits an offence if
(a) He received money or other property, and
(b) Intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.
3) A person commits an offence if he,
(a) Provides money or the property, and
(b) Knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.
4) In this section a reference to the provision of money or other property is a reference to its being given, lent or otherwise made available, whether or not for consideration.
11-I. Use and possession.
1) He uses money or other property for the purposes of terrorism; or
2) He-
(a) Possesses money or other property; and
(b) Intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.
11-J. Funding Arrangements.
1) A person commits an offence if he
(a) Enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and
(b) Has reasonable cause to suspect that it will be used for the purposes of terrorism.
11-K. Money-laundering.
1) A Person commits an offence if he enters into or becomes concerned in any arrangement which facilitates the retention or control, by or on behalf of another person, of terrorist property.
(a) By concealment,
(b) By removal from the jurisdiction.
(c) By transfer of nominees, or
(d) In any other way.
2) It is a defence for a person charged with an offence under sub- section (1) to prove that he did not know and had no reasonable cause to suspect that the arrangement related to terrorist property.
11-L. Disclosure of Information.
(1) Where a person-
(a) Believes or suspects that another person has committed an offence under this Act; and
(b) Bases his belief or suspicion on information which comes to his
2) It is a defence for a person charged with an offence under sub-section (1) of this section to prove that he had a reasonable excuse for not making the disclosure:
Provided that this sub-section does not require disclosure, by a professional legal advisor of any information which he obtains in privileged circumstances.
3) A person may disclose to a police officer
i) A suspicion or belief that any money or other property is terrorist property or is derived from terrorist property: or
ii) Any matter on which the suspicion is based.
4) Sub-section (3) shall have effect notwithstanding any restriction on the disclosure of information imposed by any law for the time being in force:
11-M. Cooperation with Police.
1) A person does not commit an offence under Section 11-K, if he is acting with the express consent of a police officer not below the rank of a Deputy Superintendent; and
2) Subject to sub-sections (3) and (4) under this section, a person does not commit an
offence under Sections 11-H to 11-K by involvement in a transaction or arrangement relating to money or the property if he discloses to a police officer-
(a) His suspicion or belief that the money or other property is terrorist property, and
(b) The information on which his suspicion or belief is based.
3) Sub-section (2) under this section applies only where a person makes a disclosure.
(a) After he becomes concerned in the transaction concerned;
(b) On his own initiative; and
(c) As soon as is reasonably practicable.
4) Sub-section (2) under this section does not apply to a person if
(a) A police officer forbids his to continue his involvement in the transaction or arrangement to which the disclosure relates, and
(b) He continues his involvement.
5) It is a defence for a person charged with an offence under Section 11-H to 11-J
to prove that-
(a) He intends to make a disclosure, and
(b) There is reasonable excuse for his failure to do so.
11-N. Punishment under Sections 11-H to 11-K. Any person who commits an offence under Sections 11-H to 11-K shall be punishable on conviction with imprisonment for a term no less than six months and not exceeding five years and with fine.
11-O. Seizure and detention. An officer authorized by the Provincial Government in this behalf, hereinafter referred to as the “authorized officer” may seize and detain any cash recovered, if he has reasonable grounds for suspecting that-
(a) It is intended to be used for the purposes of terrorism,
(b) It forms the whole or part of the resources of a prescribed organization, and includes any cash which is applied or made available, or is to be applied or made available, for use by organization whether being imported into, or exported from, Pakistan; or
(c) It is terrorist property within the meaning given in Section 2(aa):
Provided that any cash seized under this section shall be released not later than the end of the period of 48 hours beginning with the time when it is seized, unless an application has been made to the Court under Section 11-P and an order has been obtained for its detention for a further specified period.
11-P. Application by authorized officer to a Court.
1) An authorized officer may apply to a Court for an order under this section in relation to any cash seized under Section 11-O.
2) An order under this section-
(a) Shall authorize, the further detention, under Section 11-O of the case to which it relates for a period specified in the order, if the continued detention of the cash is justified pending completion of an investigation of its origin or derivation;
(b) Shall specify a period which ends not later than the period of three months beginning with the date of the order; and
(c) Shall require notice to be given to the person from whom the cash was seized and to any other person who is affected by and specified in the order.
3) Any cash detained under Section 11O. if detained for a further specified period under this section shall be held in profit and loss account and the profit and the profit and loss so earned shall be added to it on its released or forfeiture.
11-Q. Forfeiture.
1) The Court by or before which a person is convicted of an offence under any of the Sections 11-H to 11-M may make a forfeiture order in accordance with the provisions of this section.
2) Where a person is convicted of an offence under Section 11-1-1(1) or (2) or Section 11-1, the Court may order the forfeiture of any money or other property-
(a) Which, at the time of the offence, he had in his possession or under his control; and
(b) Which, at that time , he intended should be used, or had reasonable cause to suspect might be used, for the purposes of terrorism.
3) Where a person has been convicted under Section 11-H (3), the Court may order the forfeiture of any money or other property-
(a) Which at the time , he knew or had reasonable cause to suspect would or might be used for the purposes of terrorism.
(b) Which, at the time, he knew or had reasonable cause to suspect would or might be used for the purposes of terrorism.
4) Where a person is convicted of an offence under Section 11-J, the Court may order the forfeiture of the money of other property-
(a) To which the arrangement in question related; and
(b) Which, at the time of the offence, he knew or ha reasonable cause to suspect would or might be used for the purposes of terrorism.
5) Where a person is convicted of an offence under Section 11-K, the Court may order the forfeiture of the money or other property to which the arrangement in question related.
6) Where a person is convicted of and offence under any of the Sections 11-H to 11-K the Court may order forfeiture of any money or other property which wholly or partly, and directly or indirectly, is received by any person as a payment of other reward in connection with the commission of the offence.
11-R. Authorized officer may apply to Court for forfeiture.
1) Any authorized officer may apply to the Court for an order forfeiting the cash being detained under Sections 11-P and 11 Q.
2) The Court may grant an application only if satisfied on the balance of probabilities that the cash is cash of a kind as defined in section 11-Q, and before so doing must give an opportunity to be heard to any person-
(a) Who is not a party to the proceedings, and
(b) Who claims to be the owner of or otherwise interested in any of the cash which can be forfeited under this section.
3) An order may be made under this section, whether or not proceedings are brought against any person for an offence with which the cash is connected.
11-S. Appeal against forfeiture order under Section 11-R.
1) Any party to the proceedings in which a forfeiture order is made under Section 11-R, may appeal to the High Court against such an order.
2) An appeal must be brought before the end of the period of thirty days beginning with the dated on which the forfeiture order was made.
11-T. Deposit of Cash in a fund.
1) Any cash to which a forfeiture order under Sections 11-R and 11-S applies, alongwith the profit and loss accrued, shall be deposited into a special fund to be notified by the Federal Government.
(a) After the expiry of the limitation period within which an appeal against the forfeiture order may be brought under Section 11-S (2), or
(b) Where an appeal brought under Section 11-S has been determined and disposed of.
2) Any fund constituted by the Federal Government under sub-section (1) may also be used to compensate victims of acts of terrorism or in the case of deceased victims of acts of terrorism or in the case of deceased victims, their dependents.
11-U. Deproscription.
1) After three years of the disposal of the appeal, if any, or where no appeal was filed, from the date of the order of proscription, or from the dated of any refusal of an applications of deproscription, the prescribed organization may apply in writing to the Federal Government for the exercise of its power under Section 11-B (d) to remove the organization from the First Schedule, where the prescribed organization feels that it can prove to the satisfaction of the Federal Government that the reasons for its proscription have creased to exist.
2) The Federal Government shall decide such application within a period of ninety days, after providing a reasonable opportunity of hearing to the applicant.
11-V. Directing terrorist activities.
1) A person commits an offence if he—
(a) Directs, at any level, whilst resident in Pakistan or abroad, activities of an organization concerned with the preparation, instigation or commission of acts of terrorism; or
(b) Directs, from within the country or abroad connected with the commission, preparation or instigation of an act of terrorism.
2) A person guilty of an offence under sub-section (1) shall be liable on conviction
to imprisonment for a maximum term of seven years and to forfeiture or confiscation of his assets within or outside Pakistan.
11-W. Printing, publishing, or disseminating any material to incite hatred or giving projection to any person convicted for a terrorist act or any prescribed organization or an organization placed under observation or anyone concerned in terrorism.
1) A person commits an offence if he prints, publishes or disseminates any material, whether by audio or video-cassettes or by written, photographic, electronic, digital, wall-chalking or any method which incites religious, sectarian or ethnic hatred or gives projection to any person convicted for a terrorist act, or any person or organization concerned in terrorism or any person organization or an organization placed under observation:
Provided that a factual news report, made in good faith, shall not be construed to mean ”projection” for the purposes of this section.
2) Any person guilty of an offence under sub-section (1) shall be liable by way of summary procedure, on conviction, to a maximum term of six months imprisonment and a fine.
11-X. Responsibility for creating civil commotion.
1) A person commits an offence if he makes any call for action or shut-down, imposed through the sue of threats or force resulting in damage or destruction of property or injury to person, to intimidate citizens and prevent them from carrying our their lawful trade or business activity.
2) A person guilty of an offence under sub-section (1) shall on conviction be punishable with imprisonment for a term not less than six months and not more than five years and shall pay compensation as may be determined by the Court, from the funds of the organization to which he belongs or f from his own personal resources or assets for the hurt or damage or destruction caused as result of the commission of the offence under sub-section (1).
3) A person commits an offence if he addresses a meeting or gathering or delivers a sermon to religious gathering by any means whether verbal, written, electronic, digital or otherwise to incite religious, sectarian or ethnic hatred and contempt, and shall, on conviction, be punishable with imprisonment not less than six months and not more than three year s of fine or with both.
12. Jurisdiction of [9](Anti-Terrorism Court)-
1) Not with standing anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the Special Court exercising territorial jurisdiction in relation to such area.
2) Notwithstanding anything contained in sub-section (1), if, in respect of a case involving a scheduled offence committed in any area, the Government having regard to the facts and circumstances of the case, it satisfied that in order to ensure a fair trial, or for the protection and safety of witnesses, that such offence should be tried by
[10](Anti-Terrorism Court) established in the relation to any other area, the Government may make a declaration to that effect.
Explanation. Where a Special Court is established in relation to two or more areas, such Special Court shall be deemed, for the purpose of this sub-section, to have d been established in relation to each of such areas.
3) Where a declaration is made in respect of an offence committed in an area in a Province, any prosecution in respect of such offence shall be instituted only in the Special Court established in relation to such area, and, if any prosecution in respect of such offence is pending immediately before such declaration in any other Court, the same shall stand transferred to such Special Court and such [11](Anti-Terrorism Court) shall proceed with such case from the stage at which it was pending at that time without the necessity of recalling any witnesses.
[12][13. Establishment of (Anti-Terrorism Court)]-
1) For the purpose of providing for the speedy trial of the cases referred to in subsection (2) and subsection (3) of section 39-A, and of scheduled offences, the Federal Government, or if so directed by the Government, the Provincial Government may
establish by notification one or more Anti-terrorism Courts in relation to [each territorial area as specified by the High Court][13]
2) Where more Anti-Terrorism Courts than one have been established in any area, the Government in consultation with the Chief Justice of the High Court shall [keeping in view the seniority and status of the member of various Court in that area, designated a member of any such Court to be an administrative member][14] and all cases of friable under this Act. Pertaining to the said area shall be filed before the [administrative Member and such Administrative member may either assign the case for trial to the Court of which he is a Member] [15] or , assign any case, or cases for trial to any other Anti-Terrorism Court at any time prior to the framing of the charge. The cases shall be assigned to a case at a time:
Provided that in order to ensure that the time of the Court is not wasted if for some reason a given case cannot proceed more than one case can be assigned to it at any time or from time to time.
3) In respect of a case assigned to a Court under subsection (2), all orders made or proceeding taken before the assignment shall be deemed to have been made or taken by the Court to which the case has been assigned
4) [16][Notwithstanding anything contained in sub-section (2) and sub-section (3), the Federal Government or if so directed by the Government, the Provincial Government shall in addition to the existing [Anti-Terrorism Court][17] or such other [Anti-Terrorism
Courts][18] as may be established in area, establish one such additional [Anti-Terrorism Court][19] under this Act at the Principal seat of the [each High Court][20] and appoint a Judge of such High Court as a Judge of [Anti-Terrorism Court][21] in consultation with the Chief justice of the High Court concerned, and where a judge of High Court is appointed as a Judge for any area under this Act, he shall be the administrative Judge for that area and such administrative Judge, in addition to the powers exercisable under this Act, either suo motu or on the application of any party, at any stage of the proceedings whether before or after the framing o charge for sufficient cause including as mentioned in sub-s. (1) of S. 28, transfer, withdraw or recall any case pending before any other [Anti-Terrorism Court][22] in that area and may either try the case himself or make it over for trial in any other [Anti-Terrorism Court][23] in that area.
5) The [Anti-Terrorism Court][24] to which a case is transferred or recalled for trial under subs-s. (4), shall proceed with the case from the stage at which it was pending immediately before such transfer or recall and it shall not be bound to recall or rehear any witness who has given evidence and may act on the evidence already recorded ]
14. Composition and appointment of presiding officers of [25](Anti-Terrorism Court)-
1) (1) (Anti-Terrorism Court) shall consist of a Judge, being a person who:-
i) [26][is a Judge of High Court or is] is or has been Sessions Judge or an additional Sessions Judge; or
ii) has exercised the power of a District Magistrate or an Additional District Magistrate or and has successfully completed an advance course in Shariah, (Islamic Law )conducted by the International Islamic University Islamabad; or
iii) Has for a period of not less than ten years been an advocate [27](of High Court)
2) Subject to the provisions of subs. (4) the Federal Government or the Provincial Government if directed by the Federal Government to establish a Court under this Act, shall after consultation with the Chief Justice of the High Court appoint a judge of each Court.
3) A Judge shall hold office for a period of two and a half years but may be appointed for such further term or part of term or part of tem as the Government appointing the Judge may determine
4) Judge may be removed from his officer prior to the completion of the period for which h he has been appointed after consultation with the Chief Justice of High Court. Explanation. The qualification of being an advocate for a period of not les than ten years
may be relaxed in the case of a suitable person who is a graduate from a Islamic
University and has studied Islamic Shariah and Fiqah as a major subject.
5) [28][In a case a judge is on leave or for any other temporarily unable to perform
his duties the Government making appointment of such judge may , after consultation with the Chief justice of High Court authorize the Sessions Judge, having jurisdiction at the principal seat of the Anti -Terrorism Court to conduct proceedings of urgent nature so long as such judge is unable to perform his duties]
15. Place of sitting.
1) Subject to Sub-sections (2) and (3) a Special Court shall ordinarily sit at such place or places as the Government may , by order specify in the at behalf.
2) The Government may direct that for the trial of a particular case the Court shall sit at such place including the place of occurrence of an offence as it may specify.
3) Except in a case where a place of sitting has been specified under sub-section (2) a Special Court may, if it considers it expedient or desirable so to do either suo motu or on the application of the public prosecutor sit, for holding the trial of a case at any place including a mosque other than the ordinary place of its sitting.
16. Oath by (Anti-Terrorism Court)
A [29][Member] of (Anti -Terrorism Court)[30] shall at the commencement of a proceeding under this Act, make oath ,, in the case of a Muslim, on the Holy Quran, to the effect that he shall decide the case honestly, faithfully and considering himself accountable t Almighty Allah, and in case of as non-Muslim in accordance with[31] “the constitution, law and his conscience”.
17. Power of (Anti-Terrorism Courts) with respect to other offences.
When trying any scheduled offence, a [32](Anti-Terrorism Court) may also try any offence other than the scheduled offence with which the accused may, under the Code, be charge at the same trial.
18. Public Prosecutors.
1) The Provincial Government shall appoint in relation to each Anti-Terrorism Court of Pakistan a proficient, diligent and professionally competent Public Prosecutors or Law Officers and may also appoint one or more Additional Prosecutors or Law Officers:
Provided that the Government may also appoint, to any case or class of cases, a Special Public Prosecutor.][33]
2) Every person appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor shall be deemed to be a Public Prosecutor within the meaning of section 492 of the Code, and the provisions of the Code shall have effect accordingly.
19. Procedure and powers of Anti-Terrorism Court.
1) [(1) All offences under this Ordinance, except the offences in respect of which the investigation has already been completed and final report under Section 173of the Code has been submitted in the Court , shall be investigated by a Joint Investigation team which shall comprise of a police officer not below the rank of an Inspector and an officer of any other investigating Agency, including an intelligence agency, whom the Federal Government, or as the case may be , the Provincial Government, may nominate for the purpose. The Joint Investigating Team shall complete the Investigation in respect of a case triable by an Anti-Terrorism Court within seven working days and forward directly to the Anti-Terrorism Court a report under Section173 of the Code.
(1A) The Joint Investigating Team referred to in sub-section (1) shall have and exercise same powers as are vested in an officer Incharge of a Police Station under the Code][34]
2) Any default on the part of an officer-in-charge of a police station, an investigating officer or any other person required by law to perform any functions in connection with the investigation, that result in, or has the effect of , delaying investigation or submission of the report under sub-section (1) shall be deemed to be a willful disobedience of the order of the Special Court and the person committing the default shall be liable to be punished for contempt of Court.
3) The (Anti-Terrorism Court) may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 pf the Code.
4) [********][35]
5) Where, in a case triable by a [36][Anti-Terrorism Court], an accused has been released from police caustody under section 169 of the Code, or has been remanded to judicial custody, the Special Court may , on good grounds being shown by a public Prosecutor or a Law Officer of the Government for reasons to be recorded in writing, make an order for placing him in police custody for the purpose of further investigation in the case.
6) [37](Anti-Terrorism Court) shall be deemed to be a Magistrate for purpose of [[38]sub-section and (5)]
7) [39][ The Court shall on taking cognizance of a case, proceed with the trial from day to day and shall decide the case within seven working days failing which an application may be made to the Administrative Judge of the High Court concerned for appropriate directions for expeditious disposal of the case to meet the ends of justice.]
8) [40]( Anti-Terrorism Court) shall not adjourn any trial for any purpose unless such adjournment is , in its opinion, necessary in the interest of justice and no adjournment shall, in any case be granted for more than two working days.
9) [41]( Anti-Terrorism Court) shall not, merely by reason of a change in its composition or transfer of a case under sub-section (3) of section 12, be bound to recall and re-hear any witness who has given evidence and may act on the evidence already recorded.
10) Any accused person may be tried in his absence if the Anti-Terrorism Court, after such inquiry as in deems fit, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice:
Provided that, accused person shall not be tried under this sub-section unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code:
Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an advocate at the expense of the State to defend the accused person who is not before the Court.
Explanation.- An accused who is tried in his absence under sub-section shall be deemed not to have admitted the commission of any offence for which he has been charged.
Sub-section (10) as substituted
11) The advocate appointed under the second proviso to sub-section (10)
shall be a person selected by [42]( Anti-Terrorism Court) for the purpose and he shall be engaged at the expense of the Government.
(11A) Nothing contained in sub-section (10) or sub-section 11 shall be construed to deny the accused the d right to consult or be defended by a legal practitioner of his own choice.
12) If, within sixty days fro the date of his conviction, any person tried under sub-section (10) appears voluntarily, or is apprehended and brought before the Special Court, and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceeding against him, the Special Court shall set aside his conviction and proceed to try him in accordance with law for the offence with which he is charged.
Provided that the [43](Anti-Terrorism Court) may exercise it powers under this sub-section in a case in which a person as aforesaid appears before it after the expiration of the said period and satisfies it that he could not appear within the said period and satisfies it that he could not appear within the said period by reason of circumstances beyond his control.
13) [44][**********]
14) Subject to the other provisions of this Act, a Special Court shall for the purpose of trial of any offence, have all powers of a Court of Sessions an shall try such offence as if it were a Court of Sessions as far as may be in accordance with the procedure prescribed in the Code for trial before a Court of Sessions.
[45][20. punishment:- ******]
[46][21. protection of Judges, Counsel, Public Prosecutor, witnesses and persons concerned with Court proceedings-
1) The Court may, subject to the availability of resources, make such necessary orders to take such measures, as it deems fit , within available resources, for the protection of a witness, judge, [Member][47] public prosecutor, counsel and other persons concerned in proceedings for an offence under this Act, which may also include the following measures:
(a) Proceedings may be held in camera, or under restricted entry of members of the public, where necessary for the protection of the judge, [Member][48] witnesses or a victim’s family members or to prevent persons from crowding or storming the Court to intimidate the judge or to create a threatening atmosphere; and
(b) The names of judges, [Members][49] counsel, public prosecutor, witnesses and persons concerned with Court proceedings shall not be published; and
(c) During any inquiry, investigation or Court proceedings, whenever the matter of the identification of the accused arises, adequate protection shall be provided to a witness identifying any accused, in order to protect the identity of the witness from the accused.
2) For purposes of protection of the judges, [Members][50] accused, witnesses. Prosecutor and defence counsel and anyone concerned with the Court proceedings, the Government may adopt such other measures as may be appropriate or may be prescribed [and the Armed Forces shall also provide comprehensive protection and securing to the judges, members, to the judges, members, accused, witnesses, prosecutors, Investigators, defiance counsel and all those concerned in the Court proceedings][51]
3) The Government shall extend protection to a judge, [Members][52] a counsel, public prosecutor and the witnesses during investigation of an offence and proceedings under this Act. And thereafter, as may considered necessary.]
[53][21-A. Cordons for Terrorist Investigation. ]
1) An area is a cordoned area for the purposes of a terrorist investigation under this Act, if it is so designated under this section.
2) A designation may be made only by an officer not below than rank of a [Deputy Superintendent of Police or a member of a Joint Investigation Team][54] if he considers it expedient for the purposes of a terrorist investigation.
3) If a designation is made orally, the officer making it shall confirm It in writing, as soon as it reasonably practicable.
4) The officer making a designation shall arrange for the demarcation of the cordoned area, so tar as is reasonably.
5) An area may be designated a cordoned area for a maximum period of fourteen days, which may be extended in writing from time to time, with each extension specifying the additional period:
Provided that a designation shall have no effect after 28 days beginning with the days beginning with the day on which it was made.
6) Where a person knows or has reasonable cause to suspect that a terrorist investigation is being conducted or is proposed to be conducted, a person commits an offence if he.
(a) Discloses to another, anything which is likely to prejudice an investigation; or
(b) Interferes with material which h is likely to be relevant to an investigation.
7) Whoever commits an offence under sub-section (6) shall be liable on conviction to imprisonment for a term not less than six months and not exceeding two years, and fine.
8) It is a defence for a person charged with an offence under sub-section (6) to prove-
(a) That did not know and had no reasonable cause to suspect that the disclosure or interference was likely to affect a terrorist investigation; or
(b) That he had reasonable excuse for the disclosure or interference.
9) For the purposes of this-
(a) A reference to conducting a terrorist investigation includes a reference to taking part in the conduct of, a terrorist investigation; and
(b) A person interferes with any material if he falsifies it, conceals it, destroys it or disposes of it, or if he causes or permits another to do any of these things.
21-B. Terrorist investigation.-
1) A policeman in uniform, [or a member of a Join Investigating Team][55] may
(a) Order a person in a cordoned area to leave immediately,
(b) Order a person immediately to leave the premises which are wholly or partly in or adjacent to a cordoned area,
(c) Order the driver or person in charge of a vehicle in a cordoned area to move it from the area immediately.
(d) Arrange for the removal of a vehicle from the cordoned area.
(e) Arrange for the movement of a vehicle within a cordoned area;
(f) Prohibit or restrict access to a cordoned area by pedestrians or vehicles,
(g) Enter and search any premises in a cordoned area if he suspects anyone concerned with terrorism is hiding there,
(h) Search and arrest any person he reasonably suspects to be a person concerned in terrorism:
Provide that any search of a person shall be done by a Police person of the same sex; or
i) Lake possession to any property in a cordoned area he reasonably suspects is likely to be sued for the purposes of terrorism.
21- C. Training.
1) Weapon Training: A person commits an offence if he provides, without valid authorization from the competent authority, any
(a) Fire-arms;
(b) Explosives; or
(c) Chemical, biological and other weapons.
2) A person commits an offence if he provides without valid authorization from the competent authority, authority, any instruction or training to any child under sub-section
(1) and, conviction, shall be liable to a term of imprisonment of not less then ten years and fine.
3) A person commits an offence if he receives instruction or training from anyone, without valid authorization from the competent authority, to give such instruction or traini9ng or invites another, specifically or generally, to receive such unauthorized instruction or training in the making or use of.
(a) Fire-arms;
(b) Explosives; or
(c) Chemical, biological, and other weapons.
4) A child commits an offence if he provides, without valid authorization from the competent authority, any instruction or training, or if he receives such unauthorized instruction, or training or invites another specifically or generally, to receive such unauthorized instruction or training in the making or use of –
a. Fire-arm;
b. Explosives; or
c. Chemical, biological, and other weapons.
5) A child guilty of an offence under sub-section (4) shall be liable on conviction to imprisonment for a term not less than six months and not exceeding five years.
6) A person guilty of an offence under sub-sections (1) to (3) shall be liable on conviction to imprisonment for a term not exceeding ten years , or fine or with both.
7) Training Terrorism.
(a) A person commits an offence if he provides, generally or specifically, any instruction or training in acts of terrorism.
(b) A person commits an offence if he receives any instruction or training in acts of terrorism or invites another, specifically or generally, to receive such instruction or training.
(c) A person guilty of an offence under sub-section (a) and (b) shall, on conviction, be liable to imprisonment of either description for a term of not less than not less one year and not more than ten years and fine.
(d) A person is guilty of an offence if he provides, any instruction or training in acts of terrorism to a child, and on conviction shall be liable on conviction to imprisonment of either description for a term not less than ten years and fine.
(e) A child commits an offence if he provides, generally or specifically, any instruction or training in acts of terrorism, and on conviction, shall be liable to imprisonment for a term not less than six months and not more than five years.
(f) A child commits an offence if he receives, generally or specifically, instructions or training in acts of terrorism, and on conviction, shall be liable to imprisonment for a term not less than six months and not more than five years.
8) A Court by which a person is convicted of an offence under this section, may order the forfeiture of any thing or property which it considers to have been in the person’s possession for purposes connected with the offence, after giving any person , other than the convicted person who claims to be the owner or is otherwise interested, an opportunity of being heard.
21-D. Bail.-
1) Notwithstanding the provisions of Sections 439, 491, 496, 497, 498-A, and 561-A of the Code, no Court, other than an Anti-terrorism Court, a High Court or the Supreme Court of Pakistan, shall have the power or jurisdiction to grant bail to or otherwise release and accused. Person in a case triable by an Anti-terrorism Court.
2) All offences under this Act punishable with death or imprisonment [***][56] exceeding three years shall be non-bailable.
Provided that if there appear reasonable grounds for believing that any person accused of non-bailable offence has been guilty of an offence punishable with death or imprisonment for life or imprisonment for not less than ten years, such person shall not be released on bail.
3) Subject to sub-section (2), the Court may admit a person to bail unless satisfied that there are substantial grounds for believing that the person, if released on bail (whether subject to conditions or not), would-
(a) Fail to surrender to custody ;
(b) Commit an offence while on bail;
(c) Interfere with a witness; otherwise obstruct or attempt to obstruct the course of justice, whether in relation to himself or another person; or
(d) Fail to comply with the conditions of release (if any).
4) In exercising its powers in relation to a person seeking bail under this Act, the Court shall have regard to such of the following considerations (as well as to any others which tt consider relevant)
(a) The nature and seriousness of the offence with which the person is charged;
(b) The character, antecedents, associations and community ties of the person;
(c) The time which the person has already spent in custody and the time which he is likely to spend in custody if he is not admitted to bail; and
(d) The strength of the evidence of his having committed the offence.
5) Without prejudice to any other power to impose conditions on admission to bail, the Court admitting a person to bail under this section may impose such conditions as it consider,
(a) Likely to result in the person’s appearance at the time and place required, or
(b) Necessary in the interests of justice or for the prevention of crime.
6) It shall be lawful for the person to be held in military or police protective custody in accordance with the conditions of his bail.
7) The Government or the Court may, under this Section, at any time, in respect of a person charged of and offence under this Act, if it considers it necessary, by special or general order, direct special arrangements to be made as to the place at which the person is to be held in order.
(a) To prevent his escape; or
(b) To ensure his safety or the safety of others.
21-E. Remand.-
1) Where a person is detained for investigation , the Investigating Officer, within twenty-four hours of the arrest, excluding the time necessary for the journey form the place of
arrest to the Court, shall produce the accused before the Court, and may apply for remand of
the accused to police custody [or custody of any investigating Agency joined in the investigation][57] M for which the maximum period allowed may be fifteen days;
Provided that, where an accused cannot within twenty-four hours be produced before the Court, a temporary order for police custody, [or custody of any other Investigating Agency joined in the investigation][58] not exceeding twenty-four hours may be obtained from the nearest Magistrate for the purposes of producing the accused before the Court within that period.
2) No extension of the time of the remand of the accused in police custody [or custody of any other Investigating Agency joined in the investigation ][59] shall be allowed, unless it can be shown by the Investigating Officer, to the satisfaction of the Court that further evidence may be available and the Court is satisfied that no bodily harm has been or will be caused to the accused;
Provided that the total period of such remand shall not exceed thirty days.
3) The court shall be deemed to be a Magistrate for purposes of sub-section (1).
21-F. Remissions.- Notwithstanding anything contained in any law or prison rules of the time being in force, no remission in any sentence shall be allowed to person, other than a child who is convicted and sentenced for any offence under this Act, unless granted by the Government.
21-G. Trial of offences. All offences under this Act shall be tried by the anti-Terrorism Court established under this Act.
21-H. Conditional admissibility of confession- Notwithstanding any thing contained in the Qanoon-e-Shahadat, 1984 (President’s Order No.10 of 1984) or any other law for the time being in force, where in any Court proceeding held under this Act the evidence (which inculde’s circumstantial proceedings held under this Act the evidence ) produced raises the presumption that there is a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation without being compelled, before a police officer not below the rank of a District Superintendent of Police, may be admissible in evidence against him if the Court so deems fit;
Provided that the District Superintendent of Police before recoding any such confession, had explained to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against his and that no District Superintendent of Police has recorded such confession unless, upon questioning the person making it the District Superintendent of Police had reason to believe that it was made voluntarily; and that when he recorded the confession, he made a memorandum at the foot of such record to the following effect.
‘I have explained to (…name…) that he is not bound to make a confession and that if he does so any confession he may make may be used as evidence against him and I believes that this confession was voluntarily made. It was taken in my presence, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed)
Superintendent of Police.
21-I. Aid and abetment- Whenever aids or abets any offence under this Act shall be punishable with the maximum term of same imprisonment provided for the offence or the fine provided for such offence or with both.
21-J. Harbouring
1) A person commits an offence if he harbours any person who has committed an offence under this Act.
2) A person guilty of an offence under sub-section (1) shall be liable on conviction to punishment as provided in Sections 216 and 216-A of the Pakistan Penal Code (Act XLV of 1860 ).
21-K. Offences triable by way of summary procedure.—All offences under this Act punishable with imprisonment for a term of not more than six months with or without fine shall be tried by way of summary procedure.
21-L. Punishment for an Absconder.- Whenever being accused of an offence under this Act, absconds and avoids arrest or evades appearance before any inquiry, investigation or Court proceeding or conceals himself, and obstructs the course of justice, shall be liable to imprisonment for a term of not less than six months and not more than five years or with fine or with both.
21-M. Joint Trial
1) While trying any offence under this act, a Court may also try and other offence which an accused may, under the Code of Criminal Procedure, 1898, be charged, at the same trial if the offence is connected with such other offence.
2) If, in the course of any trial under this Act of any offence it is found that the accused person has committed any other offence under this Act or any other law for the time being in force, the Court may convict an accused for such other law for the time being in force, the Court may convict an accused for such other offence and pass any sentence authorized by this Act or as the case may be, such other law, for the punishment thereof.
22. Manner and place of execution of sentence.- The Government may specify the manner, mode and place of execution of any sentence passed under this Act, having regard to the deterrent effect which such execution is likely to have.
23. Power to transfer cases to regular Courts.- Where, after taking cognizance of an offence, a Special Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the Court to which the case is transferred may proceed with the trail of the offence as if it had taken cognizance of the offence.
[60][24 Appellate Tribunal. There shall be one or more Appellate Tribunals for each province consisting of one or two Judges of the High Court to be nominated by the Chief Justice of the said Court and notified by the Government.
Explanation.- In this section ‘High Court’ means the High Court of the Province for which Special Court has been constituted.]
25. Appeal-
1) An appeal against the final judgment of a Special Court shall be to [61]a High Court”
2) Copies of the Judgment of a Special Court shall be supplied to the accused and the Public prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the [62]“High Court” within three days of the decision.
3) An appeal under sin-section (1) may be preferred by a person sentenced by a Special Court to [63]“a High Court” within seven days of the passing of the sentence.
4) The Attorney General or an Advocate General may, on being directed by the Federal of a Provincial Government, file an appeal against an order of acquittal or a sentence passed by a Special Court within fifteen days of such order.
5) An appeal under this section shall be heard and decided by “a High Court ” within seven working days.
6) [64][Omitted by Ordi. IV of 1999 and XIII pf 1999, w.e.f. 27.4.1999].
7) Omitted by Ordi. IV of 1999 and XIII pf 1999, w.e.f. 27.4.1999
8) Pending the appeal “a High Court ” shall not release the accused on bail.
9) [65]Any appeal being before an Appellate Tribunal immediately before the commencement of thte Anti-Terrorism (Amendment) ordinance, 1998, on appeal reversed an order or judgment passed by a Special Court, an appeal may be filed against such order or judgment in the Special Court within thirty days of such commencement.
[66][26. Omitted by Ordi. IV of 1999 and XIII pf 1999, w.e.f. 27.4.1999].
27. Punishment for defective investigation.- If a special Court or [67]“a High Court” comes to conclusion during the course of or at the conclusion of the trial that the investigating officer,
or other concerned officers have failed to pursue the case property and in breach of their duties it shall be lawful for such Court or, as the case may be [68]“High Court” to punish the delinquent officers with imprisonment which may extend to two years, or with fine or with both by resort to summary proceedings.
28. Transfer of cases.-
1) Notwithstanding anything contained In this Act, the [69]High Court may if it considers it expedient so to do in the interest of justice, or where the convenience or safety of the witnesses or the safety of the accused so requires transfer any case from one Special Court to another Special Court within or outside the area.
2) [70](An anti-Terrorism Court) to which a case is transferred under sub-section (1) shall proceed with the case from the stage at which it was pending Immediately before such transfer and It shall not be bound to recall and re-hear any witness who has given evidence and may act on the evidence already recorded.
29. Trial before (Anti-Terrorism Court) to have precedence.- A trial under this Act of an offence by (An anti-Terrorism Court)[71] and the appearance of an accused before it, shall have precedence over the trial of any other case against the accused in any other Court, except on its original side.
30. Modified application of certain provisions of the Code.-
1) Notwithstanding anything contained in the Code or in any other law, every scheduled offence shall be deemed to be a cognizable offence within the meaning of clause (f) of section 4 of the Code and the words “cognizable case” as defined in that clause shall be construed accordingly.
2) Sections 374 to 379 of the Code shall apply in relation to a case involving a scheduled offence subject to the modification that the references to a “Court of Sessions” [72][] wherever
occurring therein, shall be construe as reference to “Special Court” [73][].
3) [74] [(3)********
4) *************]
31. Finality of Judgment- A judgment or order passed, or sentence a warded, by a Special Court, subject to the result of an appeal under this Act shall be final and shall not be called in question in any Court.
32. Overriding effect of Act.-
1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before a special Court, and for the purpose of the said provisions of the Code, a Special Court shall be deemed to be a Court of Sessions.
2) In particular and without prejudice to the generality of the provisions contained in subsection (1), the provisions of section 350 of the Code shall, as for as my be, apply to the proceedings before a Special Court, and for this purpose any reference in those provision to a Magistrate shall be construed as reference to [75](An anti-Terrorism Court).
33. Delegation.- The Government may, by notification, delegate, subject to such conditions as may be specified therein, all or any of the powers exercisable by it under this Act.
34. Power to amend the Schedule.- The Government may, by notification, amend the [76][First, Second and Third Schedule] so as to add any entry there to or modify or omit any entry therein.
34. Power to make rules.- The Government may, by notification, make such rules, if any as It may deem necessary carrying out the purposes of this Act.
[77][35. Power to make rules.-
1) A high Court may make such rules, if any, as it may deem necessary for carrying out the purposes of this Act.
S. 35 as originally enforced was declared to be not valid being violative of Art. 175 and 203 of the Constitution. PLD 1998 S.C. 1445. The same has been substituted by Ordi. IX of 1998. Not valid as it militates against the concept of independence of judiciary[78]
36. Savings.-
1) Nothing contained in this Act shall affect the jurisdiction exercisable by, or the procedure applicable to, any Court or other authority under any law relating to the Naval, Military or Air Forces or any other armed force of the Government.
2) For the removal of any doubt, it is herby declared that, for the purposes of any such law as is referred to in sub-section (1), a Special Court shall be deemed to be a Court of ordinary criminal jurisdiction.
[79][37. Contempt of Court. A Special Court shall have the power to punish with imprisonment for a term which may extend to six months and with fine any person who-
(a) Abuses, interferes with or obstructs the process of the Court in any way or disobeys any order or direction of the Court ;
(b) Scandalizes the Court otherwise does anything which h tends to bring the Court or a
person constituting the Court into hatred, ridicule or contempt;
(c) Does anything which ten to prejudice the determination of a matter pending or most likely to come up before the Court; or
(d) Does anything which, by any other law, constitutes contempt of Court.
Explanation. In this section, “Court” means Special Court Notes: Section 37 has been substituted by Ord. IX of 1998.
38. Punishment for terrorist act committed before this before this Act.-
Where a person has committed an offence before the commencement of this Act which if committed after the date on which h this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed.
39. Indemnity.- No suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done under this Act.
[80][39-A. Removal of difficulties.- If any difficulty arises in giving effect to any provisions of this Act, the Federal Government may make such order, not inconsistent with the provisions of this Act, as may appear to it to be nec3essary for the purposes of removing the difficulty.]
[39-B. Repeal and savings—
1) The suppression of Terrorist Activities (Special Courts) Act, 1975 is hereby repealed.
2) Notwithstanding the repeal of the Suppression of Terrorist Activities (Special Courts)
Act, 1975 (XV of 1975) and the amendment of the Anti-Terrorism Act, 1997 (XXVII of 1997), by the Anti-terrorism (Amendment) Ordinance, 2001.
(a) Every order, decision or judgment passed by any Anti-terrorism Court
constituted under this Act or Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act 1975, or any appellate Court before such repeal or amendment shall remain in force and operative and the repeal or amendment shall not affect the previous operation of the law or any thing duly done or suffered or punishment incurred,
(b) Ever case, appeal and legal proceedings whatsoever filed or pending before any Court under the Suppression of Terrorist Actives (Special Courts) Act. 1975, Including the High Court and the Supreme Court shall continue to be proceeded with In accordance with law before the concerned Court of competent jurisdiction, including the Court established under this Act, and all orders passed, decisions made and judgments delivered hereafter by such concerned Court whether original, appellate or revisional, shall be deemed to have been validly and competently made;
(c) All convictions made, punishments or sentences awarded by the Anti-terrorism Court or Special Court or an appellate Court before such repeal or amendment shall be executed as if the said Acts where in force;
(d) Any investigation or inquiry under this Act or the Suppression of terrorist Activities (Special courts ) Act. 1975 made or instituted before the commencement dl the Anti-terrorism (amendment) Ordinance, 20014, shall continue to be made and proceeded with in accordance with law;
(e) All cases pending before the Anti-terrorism Court or Special court immediately before the commencement of the Anti-terrorism (Amendment) Ordinance, 2001, if not covered by this act or clauses (a) and (b) above shall stand transferred to the respective Courts of Sessions of the area or such
other Courts of competent jurisdiction where the cases were registered against the accused and such Courts shall proceed with the cases from the stage at which they were pending, without the necessity of recalling any witnesses; and
(f) The Court of Sessions or as the case may be, any other Court to which a case has been transferred from the Anti-terrorism Court or a Special Court under Clause (d) shall try it in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), and the law applicable to such case.]
40. Amendment of the Criminal Law Amendment Act, 1908 (XIV of 1908).- In the Criminal law Amendment Act, 1908(XIV), the following amendments shall be made, namely–
(I) In section 15 clause (2) in sub-clause (a) for the words “violence or intimidation” the words “terrorism stirring up sectarianism, violence or intimidation which endanger or threaten public order” shall be substituted.
(II) For Section 16, the following shall be substituted namely:-
1) Declaration of an association to be unlawful (1) If either the Federal Government or the Provincial Government is of the opinion that an association is an unlawful association it may call upon the association to show cause within fourteen days why it should not be declared as unlawful association for the purpose of this Act.
2) If after hearing the association, the Federal Government or the Provincial Government is of the opinion that the association is an unlawful association it may declare such association to be an unlawful association.
3) If the Federal Government or the Provincial Government is of the opinion or to prevent injury to the people it is just and necessary to take immediate action, it may, pending passing of order under sub-section (2), by an ad interim order, declare an association to be unlawful.
4) An association aggrieved by an order under sub-section (2) may file an appeal before a Board appointed by the Chief Justice of the High Court of the Province consisting of a Chairman and two other persons each of whom is or has been Judge of a High Court.
5) The Board shall decide the appeal within thirty days and may pass such order as it may deem fit.
III) In section 17:
i) In sub-section (1) for the words “six months” the words “five years” shall be substituted; and
ii) In sub-section (2) for the words “three years” the words “seven years”
(IV) In sections 17A, 17D and 17E, for the words “Provincial Government” wherever occurring the words v ”Federal Government or the Provincial Government” shall be substituted.
[81][THE FIRST SCHEDULE]
(List of Prescribed Organizations)
[See Section 11-B]
THE SECOND SCHEDULE
(List of Organization under Observation)
[See Section 11-D (1) and (a)]
THE THIRD SCHEDULE
(Scheduled Offences)
See Section 2 (t)
1) Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of Section 34 of this Act.
2) Any other offence punishable under this Act.
3) Any attempt to commit, or any aid or abetment of , or any conspiracy to commit, any of the aforesaid offences.]
Foot notes
[1] PLD1997 Fed St 225.
[2] PLD 1998 Cent St. 3
[3] PLJ 2001 Fed. St. 445.
[4] Words ”or” in all probability is likely to commit omitted by ord. No IX of 1998
[5] Subs. By Ordinance XXXIX of 2001;PLJ 2001 Fed. St. 445.
[6] Added by Ord. No IX of 1998.
[7] Subs. By Ordi. XIII pf 1999 w.e.f. 27.8.1999.
[8] Inserted by Ordinance XXXIX of 2001; PLJ 2001 Fed. St.445.
[9] Subs. By Ordi. XIII of 1999, w.e.f. 27.8.1999.
[10] Subs. By Ordi. XIII of 1999 w.e.f. 27.8.1999. for the word Special Court.
[11] Subs. By Ordi. Ibid.
[12] Subs. By Ordi. Ibid.
[13] Subs. By Ordi. VII of 2002, PLJ 2002 Fed. St. 167.
[14] Subs. By Ordi. VI of 2002, PLJ 2002 167.
[15] Subs. By Ordi. VI of 2002, PLJ 2002 167.
[16] Added by Ordi.XX of 1999 w.e.f. 1999 NLR 2.12.2000. Federal Statute 51.
[17] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167.
[18] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167.
[19] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[20] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[21] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[22] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[23] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[24] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[25] Subs. By Ordi. XIII of 1999 w.e.f 27.8.1999
[26] Subs. By Ordi. XX of 1999w.e.f2.12.1999 NLR 20000 Federal Statute 51.
[27] Subs. By Ordi. XIII of 1999, w.e.f. 27.8.1999.
[28] Add. By Ordi.XXIX of 2000, dt. 24.7.2000; PLD 2001 Cent St.1.
[29] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167.
[30] Subs. By Ordi. XIII of 1999, w.e.f. 27.8.1999.
[31] Words his faith to the effect that he will decide the case honestly and faithfully according to his conscience and
beliefs Subs. By Ord. No IX of 1998.
[32] Subs. By the ordi. Ibid.
[33] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167.
[34] Subs. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167.
[35] Omitted by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[36] Subs. By Ordi. XIII of 1999, w.e.f. 27.8.1999.
[37] Subs by ordi. Ibid.
[38] Subs. by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[39] Omitted by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[40] Subs by ordi. Ibid.
[41] Subs by ordi. Ibid.
[42] Subs. By Ordi. XIII of 1999, w.e.f. 27.8.1999.
[43] Subs by ordi. Ibid.
[44] Omitted by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[45] Omitted by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[46] Subs. by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[47] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[48] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[49] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[50] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[51] Added by Ordi. VI of 2002, PLJ 2002 Fed. St. 167.
[52] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[53] Inserted by Ordinance XXXIX of 2001; PLJ 2001 Fed. St.445.
[54] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[55] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[56] Word “not “ Omitted by ordi. VI of 2002, PLJ 2002 Fed. St. 167.
[57] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[58] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[59] Inst. By Ordi. VI of 2002, PLJ 2002 Fed. St. 167
[60] Omitted by ord No IX of 1998. Declaration of the Supreme Court will not affect the trial already conducted and
conviction recorded PLD 1998 S.C 1145.
[61] Subs. For words an Appellate Tribunal by Ord. No IX of 1998.
[62] Subs. For words Appellate Tribunal by Ord. No IX of 1998.
[63] Subs. For words an Appellate Tribunal by Ord. No IX of 1998.
[64] Omitted by ord. No. IX of 1998.
[65] Added by Ord. No. IX o 1998.
[66] Omitted by ord. No. IX of 1998.
[67] Subs. For words an Appellate Tribunal by Ord. No IX of 1998.
[68] Subs. For words Appellate Tribunal by Ord. No IX of 1998.
[69] Subs. For words an Appellate Tribunal by Ord. No IX of 1998.
[70] Subs. by the ordi. XIII of 1999, w.e.f. 27.8.1999. PLD2000 Cent. St.2.
[71] Subs. By Ordi. Ibid.
[72] Words and High Court- omitted by Ord. No IX of 1998.
[73] Words and an Appellate Tribunal omitted by Ord. No. IX of 1996.
[74] Omitted by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[75] Subs. by the ordi. XIII of 1999, w.e.f. 27.8.1999.
[76] Subs. by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
[77] Subs by Ord. No IX of 1998.
[78] PLD 2000 S.C. 111.
[79] Subs by Ord. No IX of 1998.
[80] Inserted by Ordinance XXXIX of 2001; PLJ 2001 Fed. St.445.
[81] Subs. by the ordi. XXXIX of 2001: PLJ 2001 Fed. St. 445.
EXIT FROM PAKISTAN (CONTROL) RULES, 2010
[Gazette of Pakistan, Extraordinary, Part II,
2nd July, 2010]
S.R.O.74(KE)2010, dated 9-4-2010.—In exercise of the powers conferred by section 5 of the Exit from Pakistan (Control) Ordinance, 1981) (XLVI of 1981), the Federal Government is pleased to make the following rules, namely:–
(2) They shall come into force at once.
(a) corruption and misuse of power or authority causing loss to the government’s funds or property;
(b) economic crimes where large governments funds have been embezzled or institutional frauds committed;
(c) acts of terrorism or its conspiracy, heinous crimes and threatening national security;
(d) case of key directors of a firm, in default of tax or liabilities of not less than ten million rupees;
(e) case of two or more key or main directors of a firm, in default of loan or liabilities exceeding one hundred million rupees;
(f) any case and his name forwarded by the Registrar of a High Court, Supreme Court of Pakistan or Banking Court only; or’
(g) drug trafficking.
(2) Nothing in sub-rule (1) shall apply to—
(a) persons involved in private disputes where government interest is not at stake, except cases of fraud against foreign banks and reputable companies with significant foreign investments;
(b) person involved in crime like murder and dacoity, etc., unless special grounds are furnished by the relevant home departments;
(c) directors who represent foreign investment in business;
(d) women or children undergoing education who are appearing as directors merely due to their family relationship with major shareholders; or
(3) Name of any person placed on the exit control list maintained by the Federal Government in pursuance of an order made under subsection (1) of section 2 of the said Ordinance and who:
(a) has proceeded from Pakistan, shall remain on such list, so long as the said order is in force, for taking legal action against him on return to Pakistan.
(b) is in judicial custody likely to be released on bail by a competent court of law, shall remain on such list so long as the said order is in force; and
(c) has been convicted by a competent court of law for any offence shall remain on such list so long as the said order is in force and till his conviction attains finality.
Provided that an omission, for any reason, to serve the order on any person in the matter aforesaid shall not be deemed to affect the powers of the authorities at an immigration check-post to prevent departure of the said person from Pakistan on the authority of the copy in their possession.
THE EXIT FROM PAKISTAN (CONTROL) ORDINANCE, 1981
(XLVI OF 1981)
[21st December, 1981]
An Ordinance to provide for the control of exit of certain persons from Pakistan.
Whereas it is expedient to provide for the control of exit of certain persons from Pakistan.
And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action:
Now, therefore, in pursuance of the Proclamation of the Fifth day of July, 1977, read with
the Provisional Constitution Order, 1981(CMLA Order No 1 of 1981) and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:
1. Short title, extent and commencement.— (1) This Ordinance may be called the Exit from Pakistan (Control) Ordinance, 1981.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Power to prohibit exit from Pakistan.— (1) The Federal Government may, by order,
prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.
(2) Before making an order under sub-section (1), the Federal Government shall not be
necessary to afford an opportunity of showing cause to the person against the order.
(3) If, while making an order under sub-section (1) it appear to the Federal Government
that it will not be in the public interest to specify the ground on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds.
3. Review.— (1) Any person aggrieved by an order of the Federal Government under subsection (1) of section 2 may, within fifteen days of the making of the order, make a representation to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review.
(2) The Federal Government may, after giving the person making a representation an
opportunity of being heard, make such order as it may deem fit.
(3) Subject to the order of the Federal Government in review, an order under subsection (1) of section 2 shall be final and shall not be called in question before any courts or other authority.
4. Punishment.— Whoever contravenes, or attempts or conspires to contravene, or abets
the contravention of, any order made under sub-section (1) of section 2 shall be punishable with imprisonment for a term which may extend to five years.
5. Power to make rules.— The Federal Government may, by notification in the official
Gazette, make rules for carrying out the purposes of this Ordinance.
THE EXIT FROM PAKISTAN (CONTROL) ORDINANCE, 1981
(XLVI OF 1981)
[21st December, 1981]
An Ordinance to provide for the control of exit of certain persons from Pakistan.
Whereas it is expedient to provide for the control of exit of certain persons from Pakistan.
And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action:
Now, therefore, in pursuance of the Proclamation of the Fifth day of July, 1977, read with
the Provisional Constitution Order, 1981(CMLA Order No 1 of 1981) and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:
1. Short title, extent and commencement.— (1) This Ordinance may be called the Exit from Pakistan (Control) Ordinance, 1981.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Power to prohibit exit from Pakistan.— (1) The Federal Government may, by order,
prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.
(2) Before making an order under sub-section (1), the Federal Government shall not be
necessary to afford an opportunity of showing cause to the person against the order.
(3) If, while making an order under sub-section (1) it appear to the Federal Government
that it will not be in the public interest to specify the ground on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds.
3. Review.— (1) Any person aggrieved by an order of the Federal Government under subsection (1) of section 2 may, within fifteen days of the making of the order, make a representation to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review.
(2) The Federal Government may, after giving the person making a representation an
opportunity of being heard, make such order as it may deem fit.
(3) Subject to the order of the Federal Government in review, an order under subsection (1) of section 2 shall be final and shall not be called in question before any courts or other authority.
4. Punishment.— Whoever contravenes, or attempts or conspires to contravene, or abets
the contravention of, any order made under sub-section (1) of section 2 shall be punishable with imprisonment for a term which may extend to five years.
5. Power to make rules.— The Federal Government may, by notification in the official
Gazette, make rules for carrying out the purposes of this Ordinance.
NATIONAL ASSEMBLY OF PAKISTAN
Islamabad, the 12th September, 1972
ACT NO IX OF 1972
An Act to give effect in Pakistan to the Vienna Convention on Diplomatic Relations, 1961, and the Vienna Convention on Consular Relations, 1963.
WHEREAS Pakistan has acceded to the Vienna Convention on Diplomatic Relations, 1961, and the Vienna Convention on Consular Relations, 1963;
AND WHEREAS it is necessary to give effect in Pakistan to the said Vienna Conentions;
It is hereby enacted as follows:-
1. Short title, extent and commencement.- (1) This may be called the Diplomatic and Consular Privileges Act, 1972.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Provisions of Conventions to have force of law.-
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, the provisions of the Vienna Convention on Diplomatic Relations, 1961, set out in the First Schedule and the Vienna Convention on Consular Relations, 1963, set out in the Second Schedule shall, subject to the other provisions of this Act, have the force of law in Pakistan.
(2) For the purposes of Article 32 of the Convention set out in the First Schedule, a waiver by the head of the mission of any State or any person for the time being performing his functions shall be deemed to be a waiver by that State.
(3) For the purposes of Article 45 of the Convention set out in the Second Schedule and of that Article as applied by Article 58 of that Convention, a waiver shall be deemed to have been expressed by a state if it has been expressed by the head of the diplomatic mission of that State or by any person for the time being performing his functions or, if there is no such mission, by the head of the consular post concerned.
(4) Articles 35, 36 and 40 of the convention set out in the First Schedule, and Articles 50,51,52,54, 62 and 67 of the Convention set out in the Second Schedule, shall be construed as granting any privilege or immunity which they require to be granted.
3. Restriction of Privileges and immunities.- If it appears to the Federal Government that the privileges and immunities, accorded to the mission or a consular post of Pakistan in the territory of any State, or to persons connected with that mission or consular post, are less than those conferred by this Act on the mission or a Consular post of that State or on persons connected with that mission or consular post, the Federal Government may, by notification in the official Gazette, withdraw such of the privileges and immunities so conferred from the mission of that State or, as the case may be from all or any of the consular posts of that State, or, as from such persons connected there with as it may deem fit.
4. Certificate of Federal Govermment.- If any question arises whether or not any person is entitled to any privilege or immunity under this Act, a certificate issued by or under the authority of the Federal Government stating any fact relating to that question shall be conclusive evidence of that fact.
5. Power to amend schedules.– The Federal Government may, by notification in the official Gazette, amend either of the Schedules in conformity with any amendment duly made in the provisions of the Convention set out therein.
6. Repeal.- The Diplomatic and Consular Privileges Ordinance, 1972 (XV of 1972), is hereby repealed.
THE FIRST SCHEDULE
[See section 2 (1)]
ARTICLE 1
For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
(a) the “head of the Mission” is the person charged by the sending State with the duty of acting in that capacity;
(b) the “members of the mission” are the head of the mission and the members of the staff of the mission;
(c) the “members of the staff of the mission” and the members of the diplomatic staff of the administrative and technical staff and of the service staff of the mission;
(d) the “member of the diplomatic staff” are the members of the mission having diplomatic rank;
(e) a “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;
(f) the “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission;
(g) the “members of the service staff” are the members of the staff of the mission in the domestic service of the mission;
(h) a “private servant” is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;
(i) the “premises of the mission” are the buildings or parts of buildinggs and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.
ARTICLE 22
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
ARTICLE 23
1. The sending State and the head of the mission shall be exempt from all national, regional, or municipal dues and taexes in respect of the permises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.
ARTICLE 24
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
ARTICLE 27
1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the government and the other missions and consulates of the sending state wherever situated, the mission and employ all appropriate means, including diplomatic couriers and messages in code or cypher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
5. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of constituting the diplomatic bag, shall be protected by the receiving State in the performance of his function. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
6. the sending State or the mission amy designate diplomatic couriers ad hoc. In such cases the provision of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be ntrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.
ARTICLE 28
The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes.
ARTICLES 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
ARTICLE 30
1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the permises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property shall likewise engoy inviolability.
ARTICLE 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
ARTICLE 32
2. The waiver must always be express.
4. Waiver of immunity from jurisidction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.
ARTICLE 33
1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social securtiy provisions which may be inforce in the sending State or a third State.
3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.
5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded pre viously and shall not prevent the conclusion of such agreements in the future.
ARTICLE 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal except:
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues and taxes on private immovable proproperty situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having source in the receiving State and Capital taxes on investments made in commercial undertakings in the receiving State;
(e) charges levied for specific service rendered;
(f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Articlr 23.
ARTICLE 35
The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.
ARTICLES 36
(a) articles for the official use of the mission;
(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.
ARTICLE 37
2. Members of the administative and technical staff of the mission, together with members of their families formings part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of the Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36 paragraph 1, in respect of articles imported at the time of first installation.
3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.
4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. however, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
ARTICLE 38
1. Except in so far as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity for jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State, shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the reveiving State must exercise its jurisdiction over those persons in such a manner as not to interfers unduly with the performance of the functions of the mission.
ARTICLE 39
When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expirty of a reasonable in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission, not a national of or permanently resident in the receiving State or of a member of his family forming part of his household, the receiving State sahll permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
ARTICLE 40
1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessay, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return.
2. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompany ing the diplomatic agent, or travelling separately to join him or to return to their conutry.
3. In circumstances similar to those specified in paragraph 1 of this Article, third State shall not hinder the passage of members of the administrative and technical or services staff of a mission, and of members of their families, through their territories.
4. Third States shall accord to official correspondence and other official communications in transit, including messages in code or cypher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers who have been granted a passport visa if such visa was necessary and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord.
5. The obligations of third States under paragraphs 1,2, and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third States is due to force majeure.
THE SECOND SCHEDULE
[See section 2 (1)]
ARTICLE 1
DEFINITIONS
1. For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
(a) “consular post” means any consulate-general, consulate, vice-consulate or consular agency;
(b) ‘consular district’ means the area assigned to a consular post for the exercise of consular functions;
(c) “head of consular post” means the person charged with the duty of acting in that capactiy;
(d) “consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;
(e) “consular employee” means any person employed in the administrative or technical service of a consular post;
(f) “member of the service staff” means any person employed in the domestic service of a consular post;
(g) “member of the consular post” means consular officers, consular employees and members of the service staff;
(h) members of the consular staff” means consular officers, other than the head of the consular post, consular employees and members of the service staff;
(i) “member of the private staff” means a person who is employed exclusively in the private service of a member of the consular post;
(j) “consular premises” means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;
(k) “consular archives” includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, togehter with the cyphers and codes, the card-indexes and any article of furniture intended for their protection or safe keeping.
2. Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers, the provisions of Chapter III govern consular posts headed by honorary consular officers.
3. The particular status of members of the consular posts who are nationals or permanent residents of the receiving States is governed by Article 71 of the present Convention.
ARTICLE 5
CONSULAR FUNCTIONS
Consular functions consist in:-
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;
(c) as certaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting State, reporting thereon to the Government of the sending Stae and giving information to persons interested;
(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;
(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sendings State in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving state;
(h) safeguarding, within the limits imposed by the laws, and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect ot such persons;
(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the reveiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;
(j) transmitting judicial and extra-judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements in any other manner compatible with the laws and regulations of the receiving State;
(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending States, in respect of vessels having the nationality of the sending State, and of aircraft registrered in that State, and in respect of their crews;
(l) extending assistance to vessels and airceaft mentioned in subparagraph (k) of this Article, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ships papers, and, without prejudice to the powers of the authorities of the reveiving State, conducting investigations into any incident which occurred during the voyage, and settling disputes of any kind between the master, the officers and the sea-men in so far as this may be authorised by the laws and regulations of the sending State;
(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the reveiving State.
ARTICLE 15
TEMPORARY EXERCISE OF THE FUNCTIONS OF THE HEAD OF A CONSULAR POST
1. If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant, and acting head of post may act provisionally as head of the consular post.
2. The full name of the acting head of post shall be notified either by the diplomatic mission of the sending State or, if that State has no such mission in the receiving State, by the head of the consular post, or if he is unable to do so, by a competent authority of the sending State, to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. As a general rule, this notification shall be given in advance. The receiving State may make the admission as acting head of post of a person who is neither a diplomatic agent not a consular officer of the sending State in the receiving State conditional on its consent.
3. The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. While he is in charge of the post, the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned. The receiving State shall not, however, be obliged togrant to an acting head of post any facility, privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post.
4. When, in the circumstances referred to in paragraph 1 of the Article, a member of the diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the sendings State as an acting head of post, he shall, if the receiving State does not object thereto, continue to enjoy diplomatic privileges and immunities.
ARTICLE 17
PERFORMANCE OF DIPLOMATIC ACTS BY CONSULAR OFFICERS
1. In a State where the sending State has no diplomatic mission and is not represented by a diplomatic mission of a third State, a consular officer may, with the consent of the receiving State, and without affecting his consular status, be authorised to perform diplomatic acts, the performannce of such acts by a consular officer shall not confer upon him any right to claim diplomatic privilges and immunities.
2. A consular officer may, after notification addressed to the receiving State, act as representative of the sending State to any inter-Governmental organisation, When so acting, he shall be entitled to enjoy any privileges and immunities accorded to such a representative by customary international law or by international agreements, however, in respect of the performancee by him of any consular fuction, he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the present Convention.
CHAPTER II.- Facilities, privileges and Immunities Relating to Consular Posts, Career Consular Officer and other Officer and other Members of a Consular Post.
SECTION 1. – FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO A CONSULAR POST.
ARTICLE 31
INVIOLABILITY OF THE CONSULAR PREMISES
1. Consular premises shall be inviolable to the extent provided in this Article.
2. The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee of of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.
ARTICLE 32
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner of lessee shall be exempt from all national, regional, or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in paragraph i of this Article shall not apply to such dues and taxes if, under the law of the receiving State, they are payable by the person who contracted with the sending State or with the person acting on its behalf.
ARTICLE 33
INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents shall be inviolable at all times and wherever they may be.
ARTICLS 35
FREEDOM OF COMMUNICATION
1. The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communication with the Government, the diplomaic missions and other consular posts, wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular, couriers, diplomatic or consular bag and messages in code or cypher. However., the consular post may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the consular post shall be inviolable. Official correspondence means all correspondentde relating to the consular post and its functions.
3. The consular bag shall be neither opened nor detained. Nevertheless, if the competent authorites of the receiving State have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in paragraph 4 of this Artilce, they may request that the bag be opened in their presence by an authorised representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.
4. The packages constituting the consular bag shall bear visible external marks of their character and may contain only official correspondence and documents of articles intended exclusively for official use.
5. The consular courier shall be provided with an offical document indicating his status and the number of packages constituting the consular bag. Except with the consent of the receiving State he shall be neither a national of the receiving State, nor unless he is a national of the sending State, a permanent resident of the receiving State. In the performance of his functions he shall be protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
6. The sending State, its diplomatic missions and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge.
7. A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorised post of entry. He shall be provided with an official document indicating the number of packages constituting the bag,but he shall not be considered to be a consular courier. By arrangement with the appropriate local authorities, the consular post may send one of its members to take possession of the bag directly and freely from the captain of the ship or of the aircraft.
ARTICLE 39
CONSULAR FEES AND CHARGES
1. The consular post may levy in the terriory of the receiving State the fees and charges provided by the laws and regulations of the sending State for consular acts.
2. The sums collected in the form of the fees and charges referred to in paragraph 1 of this Article, and the receipts for such fees and charges, shall be exempt from all dues and taxes in the receiving State.
SECTION II.- FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO CAREER CONSULAR OFFICERS AND OTHER MEMBERS OF A CONSULAR POST.
ARTICLE 41
PERSONAL INVIOLABILITY OF CONSULAR OFFICER
1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
2. Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other for of restriction on their personal freedom save in execution of a judicial decision of final effect.
ARTICLE 43
IMMUNITY FROM JURISDICTION
2. The provision of paragraph 1 of this Article shall not, however, apply in respect of a Civil action either:-
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.
ARTICLE 44
LIABILITY TO GIVE EVIDENCE
1. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
2. The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions . It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.
3. Member of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending state.
ARTICLE 45
WAIVER OF PRIVILEEGES AND IMMUNITIES
2. The waiver shall in all cases be express, except as provided in paragraph 3 of this Article, and shall be communicated to the receiving state in writing.
4. The waiver of immunity from jurisdiction for the purposes of civil or administrative proceeedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision; in respect of such measures, a separate waiver shall be necessary.
ARTICLE 48
SOCIAL SECURITY EXEMPTION
1. Subject to the provisions of paragraph 3 of this Article, members of the consular post with respect to services rendered by then for the sending State and members of their families forming part of their households, shall be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph I of this Article shall apply also to members of the private staff who are in the sole employ of members of the consular post, on condition:-
(a) that they are not nationals of or permanently resident in the receiving State;and
(b) that they are covered by the social security provisions which are in force in the sending State or a third State.
3. Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State, provided that such participation is permitted by that State.
ARTICLE 49
EXEMPTION FROM TAXATION
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues or taxes on private immovable property situated in the territory of the receiving State, subject to the provisions of Articles 32;
(c) estate, succession or inheritance duties, and duties on transfers, levied by the receiving State, subject to the provisions of paragraph (b) of Article 51;
(d) dues and taxes on private income, including capital gains, having its source in the receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duties, subject to the provisions of Article 32.
2. Members of the service staff shall be exempt from dues and taxes on the wages which they receive for their services.
ARTICLE 50
EXEMPTION FROM CUSTOMS DUTIES AND INSPECTION
(a) articles for the official use of consular post;
(b) articles for the personal use of a consular officer or members of his family forming part of his household, including articles intended for his establishment. The articles intended for consumption shall not exceed the quantities necessary for direct utillization by the persons concerned.
2. Consular employees shall enjoy the privileges and exemptions specified in paragraph 1 of this Article in respect of articles imported at the time of first installation.
ARTICLE 51
ESTATE OF A MEMBER OF THE CONSULAR POST OR OF A MEMBER OF HIS FAMILY
In the event of the death of a member of the consular post or of a member of his family forming part of his household, the receiving State:-
(a) shall permit the export of the movable property of the deceased, with the exception of any such property acquired in the receiving State the export of which was prohibited at the time of his death;
(b) shall not levy national, regional or municipal estate, succession or inheritance duties, and duites on transfers, on movable property the presence of which in the receiving State was due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post.
ARTICLE 52
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving Stat Shall exempt members of the consular post and members of their families forming part of their households from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.
ARTICLE 53
BEGINNING AND END OF CONSULAR PRIVILEGES AND IMMUNITIES
1. Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or if already in its territory from the moment when he enters on his duties with the consular post.
When the functions of a member of the consular post have come to an end, his privileges and immunities and those of a member of his family forming part of his household or a member of his private staff shall normally cease at the moment when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so whichever is the sooner, but shall subsist until that time, even in case of armed conflict.In the case of the persons referred to in paragraph 2 of this Article, their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided, however, that if such persons intend leaving the receiving State within a reasonale period thereafter, their privileges and immunities shall subsist until the time of their departure.
However, with respect to acts performed by a consular officer or a consular employee in the exercise of his functions, immunity from jurisdiction shall continue to subsist without limitation of time.
5. In the event of the death of a member of the consular post, the members of his family forming part of his household shall continue to enjoy the privileges and immunities accorded to them until they leave the receiving State or until the expiry of a reasonable period enabling them to do so, whichever is the sooner.
ARTICLE 54
OBLIGATIONS OF THIRD STATES
1. If a consular officer passes through or is in the territorry of a third State, which has granted him a visa, if visa was necessary,while proceeding to take up or return to his post or when returning to the sending State, the third state shall accord to him all immunities provided for by the other Articles of the present Convention as may be required to ensure his transit or return. The same shall apply in the case of any member of his family forming part of his household enjoying such privileges and immunities who are accompanying the consular officer of travelling separately to join him or to return to the sending State.
2. In circumstances similar to those specified in paragraph 1 of this Article, third State shall not hinder the transit through their territory of other members of the consular post or of members of their families forming part of their households.
3. Third State shall accord to official correspondence and to other official communications in transit, including messages in code or cypher, the same freedom and protection as the receiving State is bound to accord under the present Convention. They shall accord to consular couriers who have been granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolability and protection as the receiving State is bound to accord under the present Convention.
4. The obligations of third States under paragraphs 1,2 and 3 of the this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and to consular bags, whose presence in the territory of the third State is due to force majeure.
ARTICLE 55
RESPECT FOR THE LAWS AND REGULATIONS OF THE RECEIVING STATE
1. The consular premises shall not be used in any manner incompatible with the exercise of consular functions.
2. The provisions of paragraph 2 of this Article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in whcih the consular premises are situated, provided that the premises assigned to them are separate from those used by the consular post. In that event, the said offices shall not, for the purposes of the present Convention, be considered to form part of the consular premises.
ARTICLE 57
SPECIAL PROVISONS CONCERNING PRIVATE GAINFUL OCCUPATION
1. Privileges and immunities provided in this Chapter shall not be accorded:
(a) to consular employees or to members of the services staff who carry on any private gainful occupation in the receiving State:
(b) to members of the family of a person referred to in sub-paragraph (a) of this paragraph or to members of his private staff:
(c) to members of the family of a memeber of a consular post sho themselves carry on any private gainful occupation in the receiving State.
CHAPTER-III.- Regime relating to Honorary Consular Officers and Consular Posts headed by such officers.
ARTICLE 58
GENERAL PROVISIONS RELATING TO FACILITIES, PRIVILEGES AND IMMUNITIES
1. Articles 35 and, patagraph 3 of Article 54 and paragraphs 2 and 3 of Article 55 shall apply to consular posts headed by an honorary consular officer. In additions, the facilities, privileges and immunities of such consular posts shall be governed by Articles60. 61 and 62.
2. Article 43, paragraph 3 of Article 44, Articles 45 and 53 shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of such consular officers shall be governed by Articles 66 and 67.
3. Privileges amd immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer.
ARTICLE 60
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises of a consular post headed by an honorary consular officer of which the sending State is the owner or lessee shall be exmpt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specifie services rendered.
2. The exemption from taxation referred to in paragraph 1 of this Article shall not apply to such dues and taxes if, under the laws and regulations of the receiving State, they are payable by the person who contracted with the sending State.
ARTICLE 61
INVIOLABILITY OF CONSULAR ARCHIVES AND DOCUMENTS
The consular arcieves and documents of a consular post headed by an honorary consular officer shall be inviolable at all times and wherever they may be, provided that they are kept separate from other papers and documents and, in particular, from the private correspondence of the head of a consular post and of any person working with him, and from the materials, books or documents relating to their profession or trade.
ARTICLE 62
EXEMPTION FROM CUSTOMS DUTIES
The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all Customs-duties, taxes, and related charges other than charges for storage, cartage and similar services on the following articles, provided that they are for the official use of a consular post headed by an honorary consular officers coat-of-arms, flages, signboards, seals and stamps, books, official printed matter, office furniture, office equipment and similar articles supplied by or at the instance of the sending State to the consular post.
ARTICLE 66
EXEMPTION FROM TAXATION
An honorary consular officer shall be exempt from all dues and taxes on the remuneration and emoluments which he receives from the sending State in respect of the exercise fo consular functions.
ARTICLE 67
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt honorary consular officers from all personal services and from all public services of any kind whatsoever and from military obligations such as those connected with requistioning military contributions and billeting.
CHAPTER IV.- General Provisons
ARTICLE 70
EXERCISE OF CONSULAR FUNCTIONS BY DIPLOMATIC MISSIONS
1. The provisions of the present Convention apply also, so far as the context permits, to the exercise of consular functions by a diplomatic mission.
2. The names of members of a diplomatic mission assigned to the consular section or otherwise charged with the exercise of the consular functions of the mission shall be notified to the Ministry of Foreign Affaris of the receiving State or to the authority designated by that Ministry.
3. The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 of this Article shall continue to be governed by the rules of international law concerning diplomatic relations.
ARTICLE 71
NATIONALS OR PERMANENT RESIDENTS OF THE REVEIVING STATE
1. Except in so far as additional facilities, privileges and immunities may be granted by the receiving State, consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, and the privilege provided in paragraph 3 of Article 44.
2. Other members of the consulr post who are nationals of or permanently resident in the receiving state and members of their families, as well as members of the families of consular officers referred to in paragraph 1 of this Article, shall enjoy facilities, privileges and immunities only in so far as these are granted to them by the receiving State. Those members of the families members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities, privileges and immunities only in so far as these are granted to them by the receiving State.
Article 175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court
(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.
(2) For appointment of Judges of the Supreme Court, the Commission shall consist of—
(i) Chief Justice of Pakistan; Chairman
(ii) [four] most senior Judges of the Supreme Court;Member
(iii) a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the [four] member Judges, for a term of two years; Member
(iv) Federal Minister for Lawand Justice;Member
(v) Attorney-General for Pakistan; and Member
(vi) a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.Member
(3) Nowithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.
(4) The Commission may make rules regulating its procedure.
(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:-
(i) Chief Justice of the High Court to which the appointment is being made; Member
(ii) the most senior Judge of that High Court; Member
(iii) Provincial Minister for Law; and Member
1[(iv) an advocate having not less than fifteen year practice in the High Court to be nominated by the concerned Bar Council for a term of two years:] Member
2[Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission:
Provided further that if for any reason the Chief Justice of High Court is not available, he shall be subtitued by a former Chief Justice or former Judge of that Court,to be nominated by the Chief Justice of Pakistan in consultation with the four member judges of the Commission mentioned in paragraph (ii) of clause (2).]
(6) For appointment of judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:-
(i) Chief Justice of the Islamabad High Court; and Member
(ii) most senior Judge of that High Court:Member
Provided that for initial appointment of the [Chief Justice and the] Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission.
Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.
(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members:
Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply.
(8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be;
(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:-
(i) four members from the Senate; and
(ii) four members from the National Assembly.
Provided that when the National Assembly is dissolved,the total membership of the parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this Article shall,mutatis mutandis,apply.
(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.
(11) Secretary, Senate shall act as the Secretary of the Committee.
(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed:
Provided that the Committee for reasons to be recorded ,may not confirm the nomination by three-fourth majority of its total membership within the said period.
Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister.
Provided further that if a nomination is not confirmed, the Commission shall send another nomination.
(13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.
(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.
(15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.
(16) The provisions of Article 68 shall not apply to the proceedings of the Committee.
(17) The Committee may make rules for regulating its procedure.
JUDICIAL COMMISSION OF PAKISTAN RULES, 2010
TO BE PUBLISHED IN JUDICIAL COMMISSION OF PAKISTAN
EXTRAORDINARY
PART – II OF THE – – – – – – –
GAZETTE OF PAKISTAN
Islamabad, November 6, 2010.
NOTIFICATION
S.R.O. 122(KE)/2010. – In exercise of powers conferred by clause (4) of Article 175A of the Constitution of the Islamic Republic of Pakistan, the Judicial Commission of Pakistan is pleased to make the following rules, namely, –
1. Short title and commencement. – (1) These rules may be called the Judicial Commission of Pakistan Rules, 2010.
(2) These rules shall come into force at once.
2. Definitions. – (1) In these rules, unless the context otherwise requires, –
(a) “Chairman” means Chairman of the Commission;
(b) “Commission” means the Judicial Commission of Pakistan, established under Article 175A of the Constitution of the Islamic Republic of Pakistan;
(c) “Committee” means a Committee constituted by the Chairman from amongst the members of the Commission;
(d) “Member” means a member of the Commission; and
(e) “Secretary” means the Registrar Supreme Court or any other person authorized as such by the Chairman.
3. Nominations for Appointments. (1) For each anticipated or actual vacancy of a Judge in the Supreme Court or the Chief Justice of Federal Shariat Court or the Chief Justice of a High Court, the Chief Justice of Pakistan shall initiate nominations in the Commission for appointment against such vacancy.
(2) For each anticipated or actual vacancy of a Judge in the Federal Shariat Court or Judge in the High Court, the Chief Justice of the respective Court shall initiate and send nomination for appointment against such vacancy to the Chairman for convening meeting of the Commission.
4. The Chairman shall regulate the proceedings of the Commission.
5. Proceedings of the Commission. – (1) Whenever a nomination is received under Rule 3, the Chairman shall call a meeting of the Commission on a date, time and place determined by him and notified by the Secretary to each member.
(2) The Commission may call for any information or record required by it from any person or authority for the purposes of carrying out its functions.
(3) The Secretary shall forward the nominations made by the Commission to the Secretary of the Parliamentary Committee constituted under clause (9) of Article 175A of the Constitution.
(4) The proceedings of the Commission shall be held in camera. A record of the proceedings shall be prepared and maintained by the Secretary duly certified by the Chairman under his hand.
6. The Chairman may constitute one or more committees of members for such purpose as may be deemed necessary.
7. A retired Chief Justice or retired Judge Supreme Court and a retired Chief Justice or a retired Judge of High Court, while attending a session of the Commission, shall be entitled to TA/DA and accommodation as admissible to Judge of Supreme Court, or Judge of High Court, as the case may be.
8. Relaxation of Rules. – Without prejudice to the foregoing, the Chairman may relax strict application of these rules in the public interest.
By Order of the Commission
(Dr.Faqir Hussain)
Secretary,
Judicial Commission of Pakistan.
The 17th Amendment to the Constitution brought a significant change in Article 209 of the Constitution. Prior to the Amendment, the Council could process only such matters as were referred to it by the President. Under the amended Article 209, the Council, besides a reference from the President, may, also on its own account, inquire into the conduct or capacity of a Judge of a Superior Court in Pakistan.Continue Reading
CODE OF CONDUCT FOR JUDGES OF THE SUPREME COURT AND THE HIGH COURTS
CODE OF CONDUCT TO BE OBSERVED BY JUDGES OF THE SUPREME COURT OF PAKISTAN AND OF THE HIGH COURTS OF PAKISTAN
(Supreme Judicial Council)
NOTIFICATION
Islamabad, the 2nd September, 2009
No.F.SECRETARY-01/2009/SJC.-ln exercise of powers conferred by Article 209(8) of the Constitution of Islamic Republic of Pakistan, 1973, the Supreme Judicial Council in its meeting on 8th August, 2009 approved the addition of a new Article No. XI in the Code of Conduct for Judges of the supreme Court and High Courts and in its meeting on 29th August, 2009 decided to publish the full text of amended Code of Conduct in the Gazette of Pakistan (Extraordinary) for information of all concerned as under:-
Code of Conduct for Judges of the Supreme Court and High Courts (Framed by the Supreme Judicial Council under Article 128 (4) of the 1962 Constitution as amended upto date under Article 209 (8) of the Constitution of Islamic Republic of Pakistan 1973).
The prime duty of a Judge as an individual is to present before the public an image of justice of the nation. As a member of his court, that duty is brought within the disciplines appropriate to a corporate body.
The Constitution, by declaring that all authority exercisable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles, which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the Law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation.
To be a living embodiment of these powers, functions, and obligations calls for possession of the highest qualities of intellect and character. Equally, it imposes patterns of behavior, which are the hall-mark of distinction of a Judge among his fellow-men.
In this code, an attempt is made to indicate certain traditional requirements of behavior in the Judges of the Superior Courts, conducive to the achievement of a standard of justice worthy of the nation.
ARTICLE- I
On equiponderance stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge’s task is to ensure that such equality should prevail in all things.
ARTICLE- II
A Judge should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed. While dispensing justice, he should be strong without being rough, polite without being weak, awe inspires in his warnings and faithful to his word, always preserving calmness, balance and complete detachment, for the formation of correct conclusions in all matters coming before him.
In the matter of taking his seat and of rising from his seat, he shall be punctilious in point of time, mindful of the courtesies, careful to preserve the dignity of the Court, while maintaining an equal aspect towards all litigants as well as lawyers appearing before him.
ARTICLE- III
To be above reproach, and for this purpose to keep his conduct in all things, ‘official and private, free from impropriety is expected of a Judge.
ARTICLE- IV
A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend.
A Judge must rigidly refrain from entering into or continuing any business dealing, howsoever unimportant it may be, with any party to a case before him. Should the dealing be unavoidable, he must discontinue his connection with the case forthwith. A judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers.
To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect.
ARTICLE- V
Functioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.
ARTICLE- VI
A Judge should endeavor to avoid, as far as possible, being involved, either on his own behalf or on behalf of others, in litigation or in matters which are liable to lead to litigation such as industry, trade or speculative transactions.
To employ the influence of his position to gain undue advantage, whether immediate or future, is a grave fault.
A Judge must avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions.
ARTICLE- VII
Extra-Judicial duties or responsibilities, official or private, should be generally avoided. He should equally avoid being a candidate, for any elective office in any organization whatsoever.
ARTICLE- VIII
Gifts are to be received only from near relatives and close friends, and only such as are customary. Everything in the way of favours in consequence of the office must be refused. In accepting any entertainment offered, whether general or particular, care should be taken that its real purpose does not conflict with a Judge’s duty to maintain detachment from likely litigants, and from partisan activity.
ARTICLE- IX
In his judicial work, and his relations with other Judges, a Judge should act always for the maintenance of harmony within his own Court, as well as among all Courts and for the integrity of the institution of justice. Disagreement with the opinion of any Judge, whether of equal or of inferior status, should invariably be expressed in terms of courtesy and restraint.
ARTICLE- X
In this judicial work a Judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavor to minimize suffering of litigants by deciding cases expeditiously through proper written judgments. A Judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.
ARTICLE- XI
No Judge of the superior judiciary shall render support in any manner whatsoever, including taking or administering oath in violation of the oath, of office prescribed in the Third Schedule to the Constitution, to any authority that acquires power otherwise than through the modes envisaged by the Constitution of Pakistan.
By order of the Council,
(Dr. Faqir Hussain)
Secretary
KEYWORDS:- CORRUPTION-
SUPREME COURT OF PAKISTAN
Imran Khan v. Mian Muhammad Nawaz Sharif
ALTERNATIVE CITATION : PLD 2017 SC 265; PLD 2017 SC 692
| Majority | Ejaz Afzal Khan, joined by Asif Saeed Khosa, Gulzar Ahmed, Sh. Azmat Saeed, Ijaz-ul-Ahsan |
|---|
ACTS: Article 62(1)(f) of the Constitution of PakistanSection 12(2)(f), 19(f) of the Representation of People Act, 1976
JUDGMENT
Ejaz Afzal Khan J.
This judgment is in continuation of our judgments dated 20.04.2017 in Constitution Petitions No. 29, 30 of 2016 and Constitution Petition No. 03 of 2017 which ended up in the following order of the Court :
“By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and directions, we hold that the questions how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K.; whether respondents No. 7 and 8 in view of their tender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; how bearer shares crystallized into the flats; who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited, how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and other companies set up/taken over by respondent No. 8 come from, and where did the Working Capital for such companies come from and where do the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from, which go to the heart of the matter and need to be answered. Therefore, a thorough investigation in this behalf is required.
In normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, we are constrained to look elsewhere and therefore, constitute a Joint Investigation Team (JIT) comprising of the following members :
i) a senior Officer of the Federal Investigation Agency (FIA), not below the rank of Additional Director General who shall head the team having firsthand experience of investigation of white collar crime and related matters;
ii) a representative of the National Accountability Bureau (NAB);
iii) a nominee of the Security & Exchange Commission of Pakistan (SECP) familiar with the issues of money laundering and white collar crimes;
iv) a nominee of the State Bank of Pakistan (SBP);
v) a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and
vi) a seasoned Officer of Military Intelligence (M.I.) nominated by its Director General.
The Heads of the aforesaid departments/ institutions shall recommend the names of their nominees for the JIT within seven days from today which shall be placed before us in chambers for nomination and approval. The JIT shall investigate the case and collect evidence, if any, showing that respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired assets or any interest therein disproportionate to his known means of income. Respondents No. 1, 7 and 8 are directed to appear and associate themselves with the JIT as and when required.
The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin. The JIT shall submit its periodical reports every two weeks before a Bench of this Court constituted in this behalf. The JIT shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution.
The Bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.
It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered. If found necessary for passing an appropriate order in this behalf, respondent No. 1 or any other person may be summoned and examined.
We would request the Hon’ble Chief Justice to constitute a Special Bench to ensure implementation of this judgment so that the investigation into the allegations may not be left in a blind alley.”
The Hon’ble Chief Justice of Pakistan constituted the implementation Bench consisting of Ejaz Afzal Khan, J., Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. The Bench vide order dated 05.05.2017 constituted the JIT consisting of Mr. Amer Aziz, an Officer of (BS-21) who is on deputation with NIBAF, Mr. Bilal Rasool, Executive Director, SECP, Mr. Irfan Naeem Mangi, Director NAB, (BS-20). Brig. Muhammad Nauman Saeed from ISI, Brig. Kamran Khurshid from M.I. and Mr. Wajid Zia, Additional Director General (Immigration), FIA to head the JIT.
The JIT undertook the task thus assigned and submitted a complete investigation report on 10.07.2017. Parties to the proceedings were provided the report of the JIT and a weeks’ time to go through it. Khawaja Harris Ahmed, learned Sr. ASC appearing on behalf of respondent No. 1 submitted a CMA expressing his reservations about the report. Dr. Tariq Hassan, learned ASC for respondent No. 10 also filed a CMA expressing his reservations about the report. Learned ASC appearing for petitioner in Const. P. No. 29 of 2016, Sheikh Rasheed Ahmed, petitioner appearing in person in Const. P. No. 30 of 2016 and learned ASC appearing for the petitioner in Const. P. No. 03 of 2017, by picking up the thread from where they left off, sought to canvass at the bar that the JIT has collected sufficient evidence proving that respondent No. 1, his dependents and benamidars own, possess and have acquired assets which are disproportionate to their known sources of income; that neither respondent No. 1 nor any of his dependents or benamidars before or during the course of investigation could account for these assets, therefore, he has become disqualified to be a Member of Parliament.
They further stated that certified copies of the correspondence between Mr. Errol George, Director Financial Investigating Agency and the Anti-Money Laundering Officer of Mossack Fonseca & Co. (B.V.I.) Limited collected through Mutual Legal Assistance prove that respondent No. 6 is the beneficial owner of the Avenfield apartments, therefore, the document showing her as trustee is a fabrication on the face of it for which she is liable to be proceeded against for forgery and using forged documents; that use of Calibri Font, which became commercially available in 2007, in the preparation of the trust deed in February 2006 is another circumstance leading to the inference that it was forged and fabricated; that narrative of Tariq Shafi vis-à-vis receipt of AED 12 million from sale of 25% shares of Ahli Steel Mills formerly known as Gulf Steel Mills is false on the face of it which has been confirmed by the JIT in its report; that whatever has been stated in Qatri letters remained unsubstantiated as the Qatri Prince neither appeared before the JIT nor ever stated his point of view through any other legally recognizable means; that respondents were given ample opportunities to provide the trail of money and answer the questions asked in the order of the Court dated 20.04.2017 but they throughout have been evasive; that the discrepancies between the first Qatri letter and affidavit of Mr. Tariq Shafi show that neither of them is credible; that the spreadsheet attached with the second Qatri letter too is of no help to the respondents as it is neither signed nor supported by any documentary evidence; that the entire story about trail of money is seriously marred by inconsistencies surfacing in the statements of the respondents recorded by the JIT; that story of transporting machinery from Dubai to Jeddah and thereby establishing Azizia Steel Company Limited still awaits proof; that how the entire amount running to SAR 63.10 million could be utilized by respondent No. 7 notwithstanding he was entitled to only 1/3rd finds no explanation therefor, the sources establishing Hill Metal Establishment have not been proved; that failure of respondent No. 1 to disclose his assets deposited in his account on account of his being Chairman of Capital FZE would also call for his disqualification, as it being an asset for all legal and practical purposes was required to be disclosed under Section 12(2)(f) of the Representation of the People Act, 1976; that the respondent denied withdrawal of salary, but payment of salaries to all employees electronically, through the Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance; that the assets of respondents No. 7 and 8 have surprisingly grown manifold overnight notwithstanding all of their business enterprises run in loss; that the facts and figures showing inflow and outflow of Hill Metals Establishment also appear to be fudged and fabricated when seen in the light of the material collected during the course of investigation by the JIT; that material already brought on the record and collected through the JIT leave no doubt that the assets of respondent No. 1, his children and benamidars are disproportionate to their known sources of income and that their failure to satisfactorily account for them would inevitably entail disqualification of respondent No. 1 in terms of Section 9(a)(v) of the National Accountability Bureau Ordinance, 1999.
Learned Sr. ASC appearing for Respondent No. 1 contended that JIT overstepped its mandate by reopening the case of Hudabiya Paper Mills when it was not so directed by the Court; that another investigation or inquiry shall also be barred by the principle of double jeopardy when the Reference relating to the said Mills was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (PLD 2016 Lahore 667); that no evidence has been collected by the JIT showing respondent No.1 to have any nexus with the Avenfield apartments, Hill Metals Establishment, Flagship Investment Limited or any other business concern run by respondent no. 7 and 8; that all the material collected and finding given by the JIT do not deserve any consideration inasmuch as they are beyond the scope of investigation authorized by the order of this Court; that the investigation conducted by the JIT cannot be said to be fair and just when none of the respondents was questioned about or confronted with any of the documents tending to incriminate them and that the JIT exceeded its authority while obtaining documents from abroad by engaging the firm of the persons happening to be their near and dear.
Such exercise, the learned Sr. ASC added, cannot be termed as Mutual Legal Assistance by any interpretation nor can the documents thus obtained be vested with any sanctity in terms of Section 21(g) of the National Accountability Bureau Ordinance, 1999. He next contended that no weight could be given to the finding of the JIT when it is not supported by any authentic document. An investigation of this type, the learned Sr. ASC added, which is a farce and a breach of due process cannot form basis of any adverse verdict against respondent No. 1. The learned Sr. ASC to support his contention placed reliance on the cases of Khalid Aziz. Vs. The State (2011 SCMR 136) and Muhammad Arshad and others. Vs. The State and others (PLD 2011 SC 350).
Learned ASC appearing on behalf of respondents No. 6, 7, 8 and 9 contended that Avenfield apartments are owned and possessed by respondent No. 7, and that the trail of money and the way it has culminated in the acquisition of the Avenfield apartments stand explained by Qatri letters; that respondent No. 6 besides being a trustee of the apartments at some stage of time has not been their beneficial owner, therefore, the correspondence between Errol George, Director FIA and Mossack Fonseca & Co. (B.V.I.) Limited or the certified copies thereof obtained through an MLA request cannot be relied upon unless proved in accordance with law and that the JIT report and the material collected by it during the course of investigation per se cannot form basis of a judgment in a proceeding under Article 184(3) of the Constitution of the Islamic Republic of Pakistan.
Learned ASC appearing on behalf of respondent No. 10 contended that assets of respondent No. 10 have been audited and examined from time to time but no irregularity was ever found in any of them; that the respondent has accounted for whatever assets he owns, possesses or has acquired; that his assets were also subject matter of Reference No. 5 of 2000 which was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (supra); that another criminal proceeding cannot be initiated when everything has been accounted for down to the rupee.
The learned ASC by producing the income tax returns from 2007 to 2016, wealth tax returns from 1981-1982 to 2000-2001 and from 2009 to 2016 contended that every asset is property vouched and documented; that the finding of the JIT has no legal or factual basis; that no conclusion much less sweeping can be drawn on the basis of such report; that 91 times increase in his assets from 1992-1993 to 2008-2009 shown in the JIT’s report is based on miscalculation; that the respondent cannot be impaled on the same charge by imputing a wrongdoing without any tangible evidence; that failure on the part of the FBR to provide the relevant record cannot be construed to the detriment of the respondent when it has been with the NAB Authorities throughout and that with this background in view, it would be rather unjust to thrust the respondent in another treadmill of tiresome trial before the Accountability Court.
We have carefully gone through the record, the report submitted by the JIT and considered the submissions of the learned ASCs, Sr. ASC of the parties as well as the learned Additional Attorney General for Pakistan.
We have already dealt with the background of the case and detailed submissions of the learned ASCs for the parties in paras 1 to 12 of the majority judgment authored by one of us (Ejaz Afzal Khan, J) and notes written by my learned brothers Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. What necessitated the constitution of JIT has been highlighted in para 19 of the judgment which reads as under :-
“19. Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer.
But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law. Any deviation from the recognized course would be a recipe for chaos. Having seen a deviation of such type, tomorrow, an Accountability Court could exercise jurisdiction under Article 184(3) of the Constitution and a trigger happy investigation officer while investigating the case could do away with the life of an accused if convinced that the latter is guilty of a heinous crime and that his trial in the Court of competent jurisdiction might result in delay or denial of justice. Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice.
Any departure from such course, however well-intentioned it may be, would be a precursor of doom and disaster for the society. It as such would not be a solution to the problem nor would it be a step forward. It would indeed be a giant stride nay a long leap backward. The solution lies not in bypassing but in activating the institutions by having recourse to Article 190 of the Constitution. Political excitement, political adventure or even popular sentiments real or contrived may drive any or many to an aberrant course but we have to go by the Law and the Book. Let us stay and Act within the parameters of the Constitution and the Law as they stand till the time they are changed or altered through an amendment therein.”
A careful examination of the material so far collected reveals that a prima facie triable case under Section 9, 10 and 15 of the Ordinance is made out against respondents No. 1, 6, 7 and 8 vis-à-vis the following assets:- “(i) Flagship Investments Limited. (ii) Hartstone Properties Limited; (iii) Que Holdings Limited; (iv) Quint Eaton Place 2 Limited; (v) Quint Saloane Limited (formerly Quint Eaton Place Limited). (vi) Quaint Limited; (vii) Flagship Securities Limited; (viii) Quint Gloucester Place Limited; (ix) Quint Paddington Limited (formerly Rivates Estates Limited); (x) Flagship Developments Limited; (xi) Alanna Services Limited (BVI); (xii) Lankin SA (BVI); (xiii) Chadron Inc; (xiv) Ansbacher Inc; (xv) Coomber Inc; and (xvi) Capital FZE (Dubai).”
So is the case against respondent No. 10 vis-à-vis 91 times increase (from Rs.9.11 million to 831.70 million) in his assets within a short span of time. What to do in the circumstances has already been dealt with in the majority judgment in the words as follows:-
“Any liability arising out of these Sections has its own trappings. Any allegation leveled against a holder of public office under these provisions of law requires an investigation and collection of evidence showing that he or any of his dependents or benamidars owns, possesses or has acquired assets etc disproportionate to his known means of income. Such investigation is followed by a full-fledged trial before an Accountability Court for determination of such liability. But where neither the Investigation Agency investigated the case, nor any of the witnesses has been examined and cross-examined in an Accountability Court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of Qanoon-e-Shahadat Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution on the basis of a record which is yet to be authenticated.
We must draw a line of distinction between the scope of jurisdiction of this Court under Article 184(3) of the Constitution and that of the Accountability Court under the Ordinance and between the disqualifications envisioned by Articles 62 and 63 of the Constitution and Section 99 of the ROPA and the criminal liabilities envisioned by Sections 9, 10 and 15 of the Ordinance lest we condemn any member of Parliament on assumptions by defying the requirements of a fair trial and due process.
We cannot make a hotchpotch of the Constitution and the law by reading Sections 9 and 15 of the Ordinance in Articles 62, 63 of the Constitution and Section 99 of the Act and pass a judgment in a proceeding under Article 184(3) of the Constitution which could well be passed by an Accountability Court after a full-fledged trial. Nor could we lift Sections 9 and 15 of the Ordinance, graft them onto Article 63 of the Constitution, construe them disqualifications and proceed to declare that the member of Parliament so proceeded against is not honest and ameen and as such is liable to be disqualified. A verdict of this nature would not only be unjust but coram non judice for want of jurisdiction and lawful authority. If a person is sought to be proceeded against under Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the mode, mechanism and machinery provided thereunder. Let the law, the Investigation Agency and the Accountability Court and other Courts in the hierarchy take their own course.
Let respondent No. 1 go through all the phases of investigation, trial and appeal. We would not leap over such phases in gross violation of Article 25 of the Constitution which is the heart and the soul of the rule of law. We also don’t feel inclined to arrogate to ourselves a power or exercise a jurisdiction which has not been conferred on us by any of the acts of the Parliament or even by Article 184(3) of the Constitution. Who does not know that making of a statement on oath in a trial lends it an element of solemnity; cross-examination provides safeguards against insinuation of falsehood in the testimony; provisions of Qanoon-e-Shahadat Order regulate relevancy of facts, admissibility of evidence and mode of proof through oral and documentary evidence and thus ensure due process of law. We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.”
The same theme was reiterated by my learned brother Mr. Justice Sh. Azmat Saeed by holding as under :-
“22. It is evident from a bare reading of the aforesaid provisions that the prosecution must establish that a person or his spouse or dependent or benamidar owns or possesses a property. If the aforesaid allegation is proved then the accused must give an explanation as to the source of legal funds for acquiring such property and upon his failure to do so, he becomes liable for punishment under the aforesaid law. Such punishment not only includes fine and imprisonment but also disqualification from holding a public Office, including that of Member of the Majlis-e-Shoora for a period of 10 years under Section 15 of the NAB Ordinance, 1999. Reference, in this behalf, can be made to the judgments, reported as (1) Iqbal Ahmed Turabi and others v. The State (PLD 2004 SC 830), (2) Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 SC 1144), (3) Abdul Aziz Memon and others v. The State and others (PLD 2013 SC 594), (4) The State through Prosecutor General Accountability, National Accountability Bureau, Islamabad v. Misbahuddin Farid (2003 SCMR 150), (5) Syed Zahir Shah and others v. National Accountability Bureau and another (2010 SCMR 713), (6) Muhammad Hashim Babar v. The State and another (2010 SCMR 1697) and (7) Khalid Aziz v. The State (2011 SCMR 136).
In none of the aforesaid cases was any person convicted without a definitive finding that the assets were in fact owned or possessed by the accused, his spouse, his dependents or benamidars. And thereafter, the accused had failed to account for the source of funds for acquiring the said property and if the explanation was found unsatisfactory, conviction followed.”
Almost the same view was expressed by my learned brother Mr. Justice Ijaz ul Ahsan in the words which reads as under:-
“58. Where there is an allegation that a holder of public office or any of his dependents or benamidars owns or possesses any assets or pecuniary resources which are disproportionate to his known sources of income which he cannot reasonably account for he can be convicted of an offence of corruption and corrupt practices and upon such conviction, penal consequences would follow.
However, such conviction can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. To transplant the powers of the Accountability Court and to attach such powers to the jurisdiction of this Court under Article 184(3) of the Constitution has neither been prayed for by the petitioners nor can it be, in our opinion, done without stretching the letter of the law and the scheme of the Constitution. Further, such course of action would be violative of the principles enshrined in Articles 4 and 25 of the Constitution, which guarantee to every citizen the right to be dealt with in accordance with law, equality before law and entitlement to equal protection of law. Adopting any other mode would set a bad precedent and amount to a constitutional Court following an unconstitutional course. This, we are not willing to do, in the interest of upholding the rule of law and our unflinching and firm belief in adherence and fidelity to the letter and spirit of the Constitution.”
The argument that the JIT overstepped its authority by reopening the case of Hudabiya Paper Mills when Reference No. 5 was quashed by the High Court does not appear to be correct as the JIT has simply made recommendations in this behalf which can better be dealt with by this Court if and when an appeal, before this Court, as has been undertaken by Special Prosecutor NAB, is filed and a view to the contrary is taken by this Court.
The next question emerging for the consideration of this Court is whether respondent No. 1 as a Chairman of the Board of Capital FZE is entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure in terms of Section 12(2) of the Representation of the People Act, 1976 and whether his failure to disclose them would entail his disqualification? The word asset has not been defined in the Representation of the People Act, 1976, (“ROPA”), therefore, its ordinary meaning has to be considered for the purposes of this case. The word asset as defined in Black’s Law Dictionary means and contemplates “an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill”.
The definition of the word receivable as used in the above mentioned definition as given in the Black’s Law Dictionary is also relevant which means and contemplates “any collectible whether or not it is currently due. That which is due and owing a person or company. In book keeping, the name of an account which reflects a debt due. Accounts receivable a claim against a debtor usually arising from sales or services rendered”. The word ‘receivable’ also has similar ring and connotation according to Business Dictionary which reads as under:-
“Accounting term for amount due from a customer, employee, supplier (as a rebate or refund) or any other party. Receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm”.
The definitions reproduced above leave no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 in his nomination papers in terms of Section 12(2) of the ROPA. When we confronted, the learned Sr. ASC for respondent No. 1, whether the said respondent has ever acquired work permit (Iqama) in Dubai, remained Chairman of the Board of Capital FZE and was entitled to salary as such, his reply was in the affirmative with the only addition that respondent No. 1 never withdrew any salary.
This admission was reiterated in more categorical terms in the written arguments filed by the learned Sr. ASC for respondent No. 1 in the words as under:-
“So far as the designation of Respondent No. 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No. 1 was in exile, and had nothing to do with the running of the Company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an “asset” for the respondent No. 1.”
It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.
As a sequel to what has been discussed in paragraphs 7 to 11 the following directions are made:-
i) The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigating Agency (FIA) and NAB having any nexus with the assets or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-
a) Reference against Mian Muhammad Nawaz Sharif (Respondent No. 1), Maryam Nawaz Sharif (Maryam Safdar) (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd) Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier.
b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated above;
c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 above;
d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 above;
e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income;
f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered;
g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and
h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person(s) in accordance with law.
As a sequel to what has been discussed in paragraphs 13 above, the following declaration and direction is issued:-
i) It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, he is disqualified to be a Member of the Majlis-e-Shoora (Parliament);
ii) The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan; and
iii) The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process.
The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by the NAB and the Accountability Court in the above matters.
This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan.
We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney-General for Pakistan and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams.
Final order of the court
The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-
a) Reference against Mian Muhammad Nawaz Sharif, (respondents No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments;
b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment;
c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan;
d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan;
e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income;
f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered;
g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and
h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person(s) to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person in accordance with law.
It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).
The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan;
The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process.
The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court in the above mentioned matters.
This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan.
We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Mr. Makhdoom Ali Khan, Sr. ASC., Mr. Shahid Hamid, Sr. ASC, Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney- General for Pakistan, Mr. Waqas Qadeer Dar, Prosecutor-General, NAB and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams.
DATE : 28.07.2017
THE CODE OF CRIMINAL PROCEDURE, 1898.
As amended by Act II of 1997
PART I – PRELIMINARY
CHAPTER I
1. Short title Commencement Extent
2. [Repealed by Act X of 1914]
3. References to Code of Criminal Procedure and other repealed enactments.
Expressions in former Acts
4. Definitions Words referring to acts.
Words to have same meaning as in Pakistan Penal Code
5. Trial of offences under Penal Code Trial of offences against other laws
PART II – CONSTITUTION AND POWERS OF CRIMINAL COURTS AND OFFICES – CHAPTER II – OF THE CONSTITUTION OF CRIMINAL COURTS AND OFFICES
A. Classes of Criminal Courts
6. Classes of Criminal Courts
B. Territorial Divisions
7. Sessions divisions and districts Power to alter divisions and districts Existing divisions and districts maintained till altered
8. Power to divide districts into sub-divisions Existing sub-divisions maintained
C. Courts and Offices
9. Court of Sessions
10. District Magistrate
11. Officers temporarily succeeding to vacancies in office of District Magistrates
12. Subordinate Magistrates Local limits of their jurisdiction
13. Power to put Magistrate incharge of sub-division. Delegation of powers to District Magistrate
14. Special Magistrates
15. Benches of Magistrates Power exercisable by Bench in absence of special direction
16. Power to frame rules for guidance of Benches
17. Subordination of Magistrates and Benches to District Magistrate; to Sub-divisional Magistrate Subordination of Assistant Sessions Judges to Sessions Judges
D. Courts of Presidency Magistrates
18-21. [Omitted by A.O 1949]
E. Justices of the Peace
22. Appointment of Justice of the Peace
22-A. Power of Justice of Peace.
22-B. Duties of Justice of Peace.
23-24.[Repealed by Act XII of 1923]
25. Ex-officio Justice of the Peace
F. Suspension and Removal
26-27. [Repealed by A.O. 1937]
CHAPTER III – POWER OF COURTS
A. Description of Offences cognizable by each Court
28. Offences under Penal Code
29. Offences under other laws
29-A. [Omitted by Act II of 1950]
29-B. Jurisdiction in the case of juveniles
30. Offences not punishable with death
B. Sentences which may be passed by Courts of various Classes
31. Sentences which High Courts and Sessions Judges may pass
32. Sentences which Magistrates may pass
33. Power of Magistrates to sentence to imprisonment in default of fine Proviso as to certain cases
34. Higher Powers of certain District Magistrates
34-A. [Omitted by Act II of 1950]
35. Sentence in case of conviction of several offences at one trial Maximum term of punishment,
C. Ordinary and Additional Powers
36. Ordinary powers of Magistrates
37. Additional Powers conferrable on Magistrates
38. Control of District Magistrates investing power
D. Conferment, Continuance and Cancellation of Powers
39. Mode of conferring powers
40. Powers of officers appointed
41. Powers may be cancelled
PART III – GENERAL PROVISIONS
CHAPTER IV – OF AID AND INFORMATION TO THE MAGISTRATES, THE POLICE AND PERSONS MAKING ARRESTS
42. Public when to assist Magistrates and police
43. Aid to person, other than police-officer, executing warrant
44. Public to give information of certain offences
45. Village headmen, accountants, land-holders and others bound to report certain matters Appointment of village-headmen by District Magistrate or Sub-divisional Magistrate in certain cases for purposes of this section
CHAPTER V
OF ARREST, ESCAPE AND RETAKING
A. Arrest Generally
46. Arrest how made Resisting endeavour to arrest
47. Search of place entered by person sought to be arrested
48. Procedure where ingress not obtainable Breaking open Zanana
49. Power to break open doors and windows for purposes of liberation
50. No unnecessary restraint
51. Search of arrested persons
52. Mode of searching women
53. Power to seize offensive weapons
B. Arrest without Warrant
54. When police may arrest without warrant
55. Arrest of vagabonds, habitual robbers, etc.
56. Procedure when police-officer deputes subordinate to arrest without warrant
57. Refusal to give name and residence
58. Pursuit of offenders into other jurisdictions
59. Arrest by private persons and procedure on such arrest
60. Person arrested to be taken before Magistrate or officer in charge of police-station.
61. Person arrested not to be detained more than twenty-four hours
62. Police to report apprehensions
63. Discharge of person apprehended
64. Offence committed in Magistrate’s presence
65. Arrest by or in presence of Magistrate
66. Power, on escape, to pursue and retake
67. Provisions of sections 47, 48, and 49 to apply to arrests under section 66
CHAPTER VI
OF PROCESSES TO COMPEL APPEARANCE
A. Summons
68. Form of summons Summons by whom served
69. Summons how served Signature of receipt for summons
70. Service when person summoned cannot be found
71. Procedure when service cannot be effected as before provided
72. Service on servant of State or of Railway Company
73. Service of summons outside local limits.
74. Proof of service in such cases and when serving person not present
B. Warrant of Arrest
75. Form of warrant of arrest Continuance of arrest
76. Court may direct security to be taken Recognizance to be forwarded
77. Warrants to whom directed Warrants to several persons
78. Warrant may be directed to landholders, etc.
79. Warrant directed to police-officer
80. Notification of substance of warrant
81. Person arrested to be brought before Court without delay
82. Where warrant may be executed
83. Warrant forwarded for execution outside jurisdiction
84. Warrant directed to police-officer for execution outside jurisdiction
85. Procedure on arrest of person against whom warrant issued
86. Procedure by Magistrate before whom person arrested is brought.
86-A.Procedure for removal in custody to Tribal Area
C. Proclamation and Attachment
87. Proclamation for person absconding
88. Attachment of property of person absconding
89. Restoration of attached property
D. Other Rules regarding Processes
90. Issue of warrant in lieu of, or in addition to, summons
91. Power to take bond for appearance
92. Arrest on breach of bond for appearance
93. Provisions of this Chapter generally applicable to summons and warrants of arrest
E. Special Rules regarding processes issued for service or execution outside Pakistan and processes received from outside Pakistan for service or execution within Pakistan
93-A.Sending of summons for service outside Pakistan
93-B.Sending of warrants for execution outside Pakistan
93-C.Service and execution in Pakistan of processes received from outside Pakistan.
CHAPTER VII
OF PROCESSES TO COMPEL THE PRODUCTION OF DOCUMENT ? AND OTHER MOVABLE PROPERTY AND FOR THE DISCOVERY OF PERSONS WRONGFULLY CONFINED
A. Summons to Produce
94. Summons to produce document or other thing
95 Procedure as to letters and telegrams
B. Search-Warrants
96. When search-warrant may be issued
97. Power to restrict warrant
98 Search of house suspected to contain stolen property forged documents, etc.
99 Disposal of things found in search beyond jurisdiction
99-A.Power to declare certain publications forfeited and to issue search warrants for the same
99-B.Application to High Court to set aside order of forfeiture
99-C.Hearing by Special Bench
99-D.Order of High Court setting aside forfeiture
99-E.Evidence to prove nature or tendency of newspapers
99-F.Procedure in High Court
99-G.Jurisdiction barred
C. Discovery of Persons wrongfully confined
100. Search for persons wrongfully confined
D. General Provisions relating to Searches
101. Direction, etc. of search-warrants
102. Persons in charge of closed place to allow search
103. Search to be made in presence of witnesses Occupant of place searched may attend
E. Miscellaneous
104. Powers to impound documents, etc., produced
105. Magistrate may direct search in his presence
PART IV – PREVENTION OF OFFENCES – CHAPTER VIII – OF SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOR
A. Security for keeping the Peace on Conviction
106. Security for keeping the peace on conviction
B. Security for keeping the peace in other Cases & Security for Good behavior
107. Security for keeping the peace in other cases Procedure of Magistrate not empowered to act under subsection (1)
108. Security for good behaviour from persons disseminating seditious matter
109. Security for good behaviour from vagrants and suspected persons
110. Security for good behaviour from habitual offenders
111. [Repealed by Act XII of 1923]
112. Order to be made
113. Procedure in respect of persons present in Court
114. Summons or warrants in case of persons not so present
115. Copy of order under section 112 to accompany summons or warrant
116. Power to dispense with personal attendance
117. Inquiry as to truth of information
118. Order to give security
119. Discharge of person informed against
C. Proceeding in all Cases subsequent to Order to furnish Security
120. Commencement of period for which security is required
121. Contents of bond
122. Power to reject sureties
123. Imprisonment in default of security Proceedings when to be laid before High Court or Court of Session Kind of imprisonment
124. Power to release persons imprisoned for failing to give security
125. Power of District Magistrate to cancel any bond for keeping the peace or good behaviour
126. Discharge of sureties
126-A. Security for unexpired period of bond
CHAPTER IX – UNLAWFUL ASSEMBLIES
127. Assembly to disperse on command of Magistrate or police-officer
128. Use of civil force to disperse
129. Use of military force
130. Duty of officer commanding troops required by Magistrate to disperse assemble
131. Powers of commissioned military officers to disperse assembly
131-A. Power to use military force for public security and maintenance of law and order
132. Protection against prosecution for acts done under this Chapter
132-A. Definitions
CHAPTER X – PUBLIC NUISANCE
133. Conditional; order for removal of nuisance
134. Service or notification of order
135. Person to whom order is addressed to bey or show cause or claim jury
136. Consequence of his failing to do so
137. Procedure where he appears to show cause
138. Procedure where he claims jury
139. Procedure where jury finds Magistrate’s order to be reasonable
139-A. Procedure where existence of public right is denied
140. Procedure on order being made absolute Consequence of disobedience to order
141. Procedure on failure to appoint jury or omission to return verdict
142. Injunction pending inquiry
143. Magistrate may prohibit repetition or continuance of public nuisance
CHAPTER XI – TEMPORARY ORDERS IN URGENT CASES ON NUISANCE OR APPREHENDED DANGER
144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger
CHAPTER XII – DISPUTES AS TO IMMOVABLE PROPERTY
145. Procedure where dispute concerning land, etc., is likely to cause breach of peace Inquiry as to possession Party in possession to retain possession until legally evicted
146. Power to attach subject of dispute
147. Disputes concerning right of use of immovable property, etc.
148. Local inquiry Order as to costs
CHAPTER XIII – PREVENTIVE ACTION OF THE POLICE
149. Police to prevent cognizable offences
150. Information of design to commit such offences
151. Arrest to prevent such offences
152. Prevention of injury to public property
153. Inspection of weights and measures
PART V – INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE – CHAPTER XIV
154. Information in cognizable cases
155. Information in non-cognizable cases Investigation into non-cognizable cases
156. Investigation into cognizable cases
157. Procedure where cognizable offences suspected Where local investigation dispensed with Where police officer incharge sees no sufficient ground for investigation
158. Reports under section 157 how submitted s
159. Power to hold investigation or preliminary enquiry
160. Police officer’s power to require attendance of witnesses
161. Examination of witnesses by police
162. Statements to police not to be signed: Use of such statements in evidence
163. No inducement to be offered
164. Power to record statements and confessions
165. Search by police officer
166. When officer in charge of police station may require another to issue search-warrant
167. Procedure when investigation cannot be completed in twenty-four hours
168. Report of investigation by subordinate police officer
169. Release of accused when evidence deficient
170. Case to be sent to Magistrate when evidence is sufficient
171. Complainants and witnesses not to be required to accompany police officer
Complainants and witnesses not to be subjected to restraint Recusant complainant or witness may be forwarded in custody
172. Diary of proceedings in investigation
173. Report of police-officer
174. Police to inquire and report on suicide, etc.
175. Power to summon persons
176. Inquiry by Magistrate into cause of death Power to disinter corpses
PART VI – PROCEEDINGS IN PROSECUTIONS
CHAPTER XV – OF THE JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS
A. Place of Inquiry or Trial
177. Ordinary place of inquiry and trial
178. Power to order cases to be tried in different sessions divisions
179. Accused triable in district where act is done or where consequence ensues
180. Place of trial where act is offence by reason of relation to other offence
181. Being a Thug or belonging to a gang of dacoits, escape from custody etc.
Criminal misappropriation and criminal breach of trust Theft Kidnapping and abduction
182. Place of inquiry or trial where scene of offence is uncertain or not in one district only or where offence is continuing or consists of several acts
183. Offence committed on a journey
184. [Repealed by Act XXVI o( 1951]
185. High Court to decide, in case of doubt, district where inquiry or trial shall take place
186. Power to issue summons or warrant for offence committed beyond local jurisdiction Magistrate’s procedure on arrest
187. Procedure where warrant issued by subordinate Magistrate
188. Liability for offences committed outside Pakistan Political Agents to certify fitness of inquiry into charge
189. Power to direct copies of depositions and exhibits to be received in evidence
B. Conditions requisite for initiation of proceedings
190. Cognizance of offences by Magistrates
191. Transfer on application of accused
192. Transfer of cases by Magistrates
193. Cognizance of offences by Courts of Session
194. Cognizance of offences by High Court Information by Advocate-General
195. Prosecution for contempt of lawful authority of public servants Prosecution for certain offences against public justice Prosecution for certain offences relating to documents given in evidence
196. Prosecution for offences against the State
196-A. Prosecution for certain classes of criminal conspiracy
196-B. Preliminary inquiry in certain cases
197. Prosecution of Judges and public servants Power of President or Governor as to prosecution
198. Prosecution for breach of contract, defamation and offences against marriage
198-A. Prosecution for defamation against public servants in respect of their conduct in discharge of public functions
199. Prosecution for adultery or enticing a married woman
199-A. Objection by lawful guardian to complaint by person other than person aggrieved
199-B. Form of authorization under second proviso to section 198 or 199
CHAPTER XVI – OF COMPLAINTS TO MAGISTRATES
200. Examination of complainant
201. Procedure by Magistrate not competent to take cognizance of the case
202. Postponement for issue of process
203. Dismissal of complaint
CHAPTER XVII – OF THE COMMENCEMENT OF PROCEEDINGS BEFORE COURT
204. Issue of process
205. Magistrate may dispense with personal attendance of accused
CHAPTER XVIII – OF INQUIRY INTO CASES TRIABLE BY THE COURT OF SESSION OR HIGH COURT
206-220.[Omitted by Law Reforms Ordinance. 1972]
CHAPTER XIX – OF THE CHARGE
Form of Charges
221. Charge to state offence Specific name of offence sufficient description How stated where offence has no specific name What implied in charge Language of charge Previous conviction when to be set out
222. Particulars as to time, place and person
223. When manner of committing offence must be stated
224. Words in charge taken in sense of law under which offence is punishable
225. Effect of errors
226. [Omitted by Ordi. XII of 1972]
227. Court may alter charge
228. When trial may proceed immediately after alteration
229. When new trial may be directed, or trial suspended
230. Stay of proceedings if prosecution of offence in altered charge requires previous sanction
231. Recall of witnesses when charge altered
232. Effect of material error Joinder of Charges
233. Separate charges for distinct offences
234. Three offences of same kind within one year may be charged together
235. Trial for more than one offence Offence falling within two definitions Acts constituting one offence, but constituting when, combined, a different offence
236. Where it is doubtful what offence has been committed
237. When a person is charged with one offence, he can be convicted of another
238. When offence proved included in offence charged
239. What persons may be charged jointly
240. Withdrawal of remaining charges on conviction on one of several charges
CHAPTER XX – OF THE TRIAL OF CASES BY MAGISTRATES
241. Procedure in trial of cases
241-A. Supply of statements and documents to accused
242. Charge to be framed
243. Conviction on admission of truth of accusation
244. Procedure when no such admission is made
244-A. Statement made under section 164
245. Acquittal-Sentence
245-A. Procedure in cases of previous convictions
246. [Omitted by Law Reforms Ordinance, 1972]
247. Non-appearance of complainant
248. Withdrawal of complaint
249. Power to stop proceedings when no complaint
249-A. Power of Magistrate to acquit accused at any stage
Frivolous Accusation in cases tried by Magistrates
250. False, frivolous or vexatious accusations
250-A. Special summons in case of petty offences
CHAPTER XXI – OF THE TRIAL OF WARRANT CASES BY MAGISTRATES
251-259. [Omitted by Law Reforms Ordinance, 1972]
CHAPTER XXII – OF SUMMARY TRIALS
260. Power to try summarily
261. Power to invest Bench of Magistrates invested with less power
262. Procedure prescribed in Chapter XX applicable
263. Record in cases where there is no appeal
264. Record in appealable cases
265. Language of record and judgment Bench may be authorized to employ clerk
CHAPTER XXII-A – TRIALS BEFORE HIGH COURTS AND COURTS OF SESSION
265-A. Trial before Court of Session to be conducted by Public Prosecutor
265-B. Procedure in cases triable by High Courts and Court of Session
265-C. Supply of statements and documents to the accused
265-D. When charge is to be framed
265-E. Plea
265-F. Evidence for prosecution
265-G. Summing up by prosecutor and defence
265-H. Acquittal or conviction
265-I. Procedure in case of previous conviction
265-J. Statement under section 164 admissible
265-K. Power of Court to acquit accused at any stage.
265-L Power of Advocate-General to stay prosecution
265-M. Time of holding sittings
265-N. Place of holding sittings
CHAPTER XXIII – OF TRIALS BEFORE HIGH COURTS AND COURTS OF SESSIONS
266-336. [Omitted by Law Reforms Ordinance, 1972]
CHAPTER XXIV – GENERAL PROVISIONS AS TO TRIALS
337. Tender of pardon to accomplice
338. Power to grant or tender pardon
339. Trial of person to whom pardon has been tendered
339-A. Procedure in trial of person under section 339
340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness
341. Procedure where accused does not understand proceedings
342. Power to examine the accused
343. No influence to be used to induce disclosures
344. Power to postpone or adjourn proceedings Remand Reasonable cause for remand
345. Compounding offences
346. Procedure of Magistrate in cases which he cannot dispose of
347. Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court
348. Trial of persons previously convicted of offences against coinage, stamp-law or property
349. Procedure when Magistrate cannot pass sentence sufficiently severe
350. Conviction on evidence partly recorded by one Magistrate and partly by another
350-A. Changes in constitution of Benches
351. Detention of offenders attending Court
352. Court to be open
CHAPTER XXV – OF THE MODE OF TAKING AND RECORDING EVIDENCE IN TRIALS
353- Evidence to be taken in presence of accused
354. Mariner of recording evidence
355. Record In trial of certain cases by first and second class Magistrates
356. Record in other cases Evidence given in English Memorandum when evidence not taken down by the Magistrate or Judge himself
357. Language of record of evidence
358. Option to Magistrate in cases under section 355
359. Mode of recording evidence under section 355 or section 357
360. Procedure in regard to such evidence when completed
361. Interpretation of evidence to accused or his pleader
362. [Omitted by A.O 1949}
363. Remarks respecting demeanor of witness
364. Examination of accused how recorded
365. Record of evidence in High Court
CHAPTER XXVI – OF THE JUDGMENT
366. Mode of delivering judgment
367. Language of judgment, Contents of judgment. Judgment in alternative
368. Sentence of death
369. Court not to alter judgment
370. [Omitted by A.O 1949}
371. Copy of judgment, etc., to he given to accused
372. Judgment when to be translated
373. Court of Session to send copy of finding and sentence to District Magistrate
CHAPTER XXVII – OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION
374. Sentence of death to be submitted by Court of Session
375. Power to direct further inquiry to be made or additional evidence to be taken
376. Power of High Court to confirm sentence or annul conviction
377. Confirmation of new sentence to be signed by two Judges
378. Procedure in case of difference of opinion
379 Procedure in cases submitted to High Court for confirmation
380 [Repealed by Ordi. LXV of 1960]
CHAPTER XXVIII – OF EXECUTION
381. Execution of order passed under section 376
382. Postponement of capital sentence on pregnant woman
382-A. Postponement of execution of sentences of imprisonment under section 476 or for a period of less than one year
382-B. Period of detention to be considered while awarding sentence of imprisonment.
382-C. Scandalous or false and frivolous pleas to be considered in passing sentence
383. Execution of sentences of imprisonment for life or imprisonment in other cases
384. Direction of warrant for execution
385. Warrant with whom to be lodged
386. Warrant for levy of fine
387. Effect of such warrant
388. Suspension of execution of sentence of imprisonment
389. Who may issue warrant
390. Execution of sentence of whipping only
391. Execution of sentence of whipping in addition to imprisonment
392. Mode of inflicting punishment Limit of number of stripes
393. Not to be executed by instalments: Exemptions
394. Whipping not to be inflicted if offender not in fit state of health Stay of execution
395. Procedure if punishment cannot be inflicted under section 394.
396. Execution of sentences on escaped convicts
397. Sentence on offender already sentenced for another offence
398. Saving as to sections 396 and 397
399. Confinement of youthful offenders in reformatories
400. Return of warrant on execution of sentence
CHAPTER XXIX – OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF SENTENCES
401. Power to suspend or remit sentences
402. Power to commute punishment
402-A. Sentences of death
402-B. Certain restrictions on the exercise of powers by Provincial Govt.
CHAPTER XXX – OF PREVIOUS ACQUITTALS OR CONVICTIONS
403. Person once convicted or acquitted not to be tried for same offence
PART VII – OF APPEAL, REFERENCE AND REVISION – CHAPTER XXXI – OF APPEALS
404. Unless otherwise provided, no appeal to lie
405. Appeal from order rejecting application for restoration of attached property
406. Appeal from order requiring security for keeping the peace or for good behaviour
406-A. Appeal from order refusing to accept or rejecting a surety
407. Appeal from sentence of Magistrate of the second or third class Transfer of appeals to first class Magistrate
408. Appeal from sentence of Assistant Sessions Judge or Magistrate of the first class
409. Appeal to Court of Session how heard
410. Appeal from sentence of Court of Session
411. [Omitted by A.0.1949]
411-A. Appeal from sentence of High Court
412. No appeal in certain cases when accused pleads guilty
413. No appeal in petty cases
414. No appeal from certain summary convictions
415. Proviso to section 413 and 414
415-A. Special right of appeal in certain cases
416. [Repealed]
417. Appeal in case of acquittal
418. Appeal on what matters admissible
419. Petition of appeal
420. Procedure when appellant in jail
421. Summary dismissal of appeal
422. Notice of appeal
423. Powers of Appellate Court in disposing of appeal
424. Judgments of subordinate Appellate Courts
425. Order by High Court on appeal to be certified to lower Court
426. Suspension of sentence pending appeal Release of appellant on bail
427. Arrest of accused in appeal from acquittal.
428. Appellate Court may take further evidence or direct to be taken.
429. Procedure where Judge of Court of Appeal are equally divided.
430. Finality of orders on appeal.
431. Abatement of Appeals.
CHAPTER XXXII – OF REFERENCE AND REVISION
432. [Omitted by A.O.1949]
433. [Omitted by A.O.1949]
434. [Omitted by Act XXVI of 1943]
435. Power to call for records of inferior Courts.
436. Power to order further inquiry.
437. [Omitted by Law Reforms Ordinance,1972]
438. Report to High Court.
439. High Court’s powers of revision.
439-A. Sessions Judge’s powers of revision.
440. Optional with Court to hear parties.
441. [Omitted by A.O. 1949]
442. High Court’s-order to be certified to lower Court or Magistrate.
PART VIII – SPECIAL PROCEEDINGS – CHAPTER XXXIII
443-463. [Omitted by Act II of 1950]
CHAPTER XXXIV – LUNATICS
464. Procedure in case of accused being lunatic
465. Procedure in case of person sent for trial before Court of session or High Court being lunatic
466. Release of lunatic pending investigation or trial Custody of lunatic
467. Resumption of inquiry or trial
468. Procedure on accused appearing before Magistrate or Court
469. When accused appears to have been insane
470. Judgment of acquittal on ground of lunacy
471. Person acquitted on such ground to be detained in safe custody Power of Provincial Government to relieve Inspector General of certain functions
472. [Repealed by Act IV of 1912]
473. Procedure where lunatic prisoner is reported capable of making his defence
474. Procedure where lunatic detained under section 466 or 471 is declared fit to be released
475. Delivery of lunatic to care of relative or friend
CHAPTER XXXV – PROCEEDINGS IN CASE OF CERTAIN OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE
476. Procedure in cases mentioned in section 195
476-A. Forwarding of cases for trial by Court, having jurisdictions
476-B. [Omitted by Law Reforms Ordinance, 1972]
477. [Repealed by Code of Criminal Procedure (Amendment) Act, 1923]
478. [Omitted by Law Reforms Ordinance 1972]
479. [Omitted by Law Reforms Ordinance 1972]
480. Procedure in certain cases of contempt
481. Record in such cases
482. Procedure where Court considers that case should not be dealt with under s. 480
483. When Registrar or Sub-Registrar to be deemed a Civil Court within s. 480 and
482
484. Discharge of offender on submission of apology
485. Imprisonment or committal of person refusing to answer or produce document
486. Appeals from convictions in contempt cases
487. Certain Judge and Magistrates not to try offences referred to in section 195 when committed before themselves
CHAPTER XXXVI – OF THE MAINTENANCE OF WIVES AND CHILDREN
488. Order for maintenance of wives and children Enforcement of order
489. Alteration in allowance
490. Enforcement of order of maintenance
CHAPTER XXXVII – DIRECTIONS OF THE NATURE OF A HABEAS CORPUS
491. Power to issue directions of the nature of habeas corpus
491-A. [Omitted by Act II of 1950]
PART IX – SUPPLEMENTARY PROVISIONS – CHAPTER XXXVIII – OF THE PUBLIC PROSECUTOR
492. Power to appoint public Prosecutors
493. Public Prosecutor may plead in all Courts in cases under his charge Pleaders privately instructed to be under his direction
494. Effect of Withdrawal from prosecution
495. Permission to conduct prosecution
CHAPTER XXXIX – OF BAIL
496. In what cases bail to be taken
497. When bail may be taken in case of non-bailable offence
498. Power to direct admission to bail or reduction of bail
498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered
499. Bond of accused and sureties
500. Discharge from custody
501. Power to order sufficient bail, when that first taken is insufficient
502. Discharge of sureties
CHAPTER XL – OF COMMISSIONS FOR THE EXAMINATION OF WITNESSES
503. When attendance of witness may be dispensed with
504. [Omitted by A.0.1949].
505. Parties may examine witnesses
506. Power of Magistrate to apply for issue of commission
507. Return of commission
508. Adjournment of inquiry or trial
508-A. Application of this Chapter to Commissions issued in Burma
CHAPTER XLI – SPECIAL RULES OF EVIDENCE
509. Deposition of medical witness
510. Report of Chemical Examiner, Serologist etc
511. Previous conviction or acquittal how proved
512. Record of evidence in absence of accused
CHAPTER XLII – PROVISION AS TO BONDS
513. Deposits instead of recognizance
514. Procedure on forfeiture of bond
514-A. Procedure in case of insolvency or death of surety or when a bond is forfeited
514-B. Bond required from a minor
515. Appeal from, and revision of, orders under section 514
516. Power to direct levy of amount due on certain recognizances
CHAPTER XLIII – OF THE DISPOSAL OF PROPERTY
516-A. Order for custody and disposal of property pending trial in certain cases
517. Order for disposal of property regarding which offence committed
518. Order may take form of reference to District or Sub-Divisional Magistrate
519. Payment to innocent purchaser of money found on accused
520. Stay of order under section 517, 518 or 519
521. Destruction of libelous and other matter
522. Power to restore possession of immovable property
522-A. Power to restore possession of movable property
523. Procedure by police upon seizure of property taken under section 51 or stolen
Procedure where owner of property seized unknown
524. Procedure where no claimant appears within six months
525. Power to sell perishable property
CHAPTER XLIV – OF THE TRANSFER TO CRIMINAL CASES
526 High Court may transfer case or itself try it
526-A. [Omitted by Ordinance XX of 1969]
527. Power of Provincial Government to transfer cases and appeals
528. Session Judge may withdraw cases form Assistant Sessions Judge
528-A. Power of District Magistrate for transfer of cases etc.
CHAPTER XLV – OF IRREGULAR PROCEEDINGS
529. Irregularities which do not vitiate proceedings
530. Irregularities which vitiate proceedings
531. Proceedings in wrong place
532. [Omitted by Law Reforms Ordinance, 1972]
533. Non-compliance with provisions of section 164 or 364
534. [Omitted by Act II of 1950]
535. Effect of omission to prepare charge
536. [Omitted by Law Reforms Ordinance, 1972]
537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings
538. Attachment not illegal, person making same not trespasser for defect or want of form in proceedings
CHAPTER XLVI – MISCELLANEOUS
539. Courts and persons before whom affidavits may be sworn
539-A. Affidavit in proof of conduct of public servant
539-B. Local inspection
540. Powers to summon material witness or examine person present
540-A. Provision for trial being held in the absence of accused in certain cases
541. Power to appoint place of imprisonment
542. [Repealed by Act 26 of 1951]
543. Interpreter to be bound to interpret truthfully
544. Expenses of complainants and witnesses
544-A. Compensation to the heirs of the person killed, etc.
545. Power of Court to pay expenses or compensation out of fine
546. Payments to be taken into account in subsequent suit
546-A. Order of payment of certain fees paid by complainant in non cognizable cases
547. Moneys ordered to be paid recoverable as fines
548. Copies of proceedings
549. Delivery to military authorities of person liable to be tried by Court-martial
550. Powers to police to seize property suspected to be stolen
551. Powers of superior officers of police
552. Power to compel restoration of abducted females
553. [Repealed by Act XXVI of 1951]
554. Power of High Courts to make rules for inspection of records of subordinate Courts Power of other High Courts to make rules for other purposes
555. Forms
556. Case in which Judge or Magistrate is personally interested
557. Practising pleader not to sit as Magistrate in certain Courts
558. Power to decide language of Courts
559. Provision; for powers of Judge and Magistrate being exercised by the successors in office
560. Officers concerned in sale not to purchase or bid for property
561. Special provisions with respect to offence of rape by a husband
561-A. Saving of inherent power of High Court
562-564. [Repealed] Previously convicted offenders
565. Order for notifying address of previously convicted offender
PART I – PRELIMINARY – CHAPTER I
1. Short title and commencement. (1) This Act may be called the Code of Criminal Procedure, 1898, and It shall come Into force on the first day of July, 1898. (2) It extends to 1 [the whole of Pakistan] but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
2. [Repeal of enactments, notifications, etc, under repealed Acts pending cases] Rep. by the Repealing and Amending Act, 1914 (X of 1914).
3. Reference to Code of Criminal Procedure and other repealed enactments. (1) In every enactment passed before thisCode comes into force in which reference is made to, or to any, chapter or section of the Code of Criminal Procedure, Act XXV of 1861 or Act X of 1872, or Act X of 1882 or to any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding chapter or section. (2) Expressions in former Acts. In every enactment passed before this Code comes into force the expressions ‘Officer exercising (or ‘having’) the powers (or ‘the full powers’) of a Magistrate’ ‘Subordinate Magistrate, first class’, and ‘Subordinate Magistrate second class’, shall respectively be deemed to mean ‘Magistrate of the first class’, ‘Magistrate of the second class’ and ‘Magistrate of the third class’, the expression ‘Magistrate of a division of a district shall be deemed to mean ‘Sub-Divisional Magistrate’, the expression ‘Magistrate’ of the district shall be deemed to mean ‘District Magistrate and the expression ‘Joint Sessions Judge’ shall mean ‘Additional Sessions Judge’.
4. Definition. (1) In this Code the following words and expressions have the following meanings unless a different intention appears from the subject or context:
(a) ‘Advocate-General’. ‘Advocate-General’ includes also a Government Advocate or where there is not Advocate-General or Government Advocate, such officer as the Provincial Government may, from time to time, appoint in this behalf;
(b) ‘Bailable offence’, ‘Non-bailable offence’. ‘Bailable offence’ means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and ‘non-bailable offence’ means any other offence:
(c) ‘Charge’. ‘Charge’ includes any head of charge when the charge contains more heads than one:
(d) [Rep. by the Repealing and amending Act, 1923 (Act XI of 1923)}
(e) [Omitted by Law Reforms Ordinance, 1972}.
(f) ‘Cognizable offence’. Cognizable case’. ‘Cognizable offence’ means an offence for, and ‘cognizable case’ means a case in, which a police officer, may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant;
(g) Omitted by A.O. 1949.
(h) ‘Complaint’. ‘Complaint’ means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the reports of a police-officer;
(i) Omitted by Act II of 1950.
(j) ‘High Court’. ‘High Court’ means the highest Court of criminal appeal or revision for a Province:
(k) ‘Inquiry’. ‘Inquiry’ includes every inquiry other than a trial conducted under this Code by a Magistrate or Court;
(l) ‘Investigation’. ‘Investigation’ includes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;
(m) ‘Judicial proceeding’. ‘Judicial proceeding’ includes any proceeding in the course of which evidence is or may be legally taken on oath;
(n) ‘Non-cognizable offence’: ‘Non-cognizable case’. ‘Non-cognizable offence means an offence for, and ‘non-cognizable case’ means a case in, which a police officer, may not arrest without warrant;
(o) ‘Offence’, ‘Offence’ means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.
Offence- The word ‘offence’ as defined in the Code means any act or omissions made punishable by any law for the time being enforced apart those from under PPC. 1991 Cr.L.J. 1476 (Ind). An offence is constituted as soon as the act which constitute that offence have been committed. It remains an offence whether it is triable by a Court or not and the fact that the trial of the offence can only be taken up after certain specified conditions are fulfilled does not make it any the less an offence. AIR 1967 S.C. 528. There is nothing wrong in law to regard a single act of firing at two persons as one offence. AIR 1952 S.C. 45. However, an act or omission is an offence only if it is made punishable by any law for the time being in force 1931 P.C. 94.
(p) ‘Officer in charge of a police-station’. ‘Officer in charge of a police-station’ includes, when the officer in charge of the police-station is absent from the station-house or unable from illness or other cause to perform his duties, the police-officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the Provincial Government so directs, any other police-officer so present;
(q) ‘Place’. ‘Place’ includes also a house, building, tent and vessel:
(r) ‘Pleader’. ‘Pleader’, used with reference to any proceeding in any Court, means, a pleader or a mukhtar authorized under any law for the time being in force to practice in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorized, and (2) any other person appointed wit the permission of the Court to act in such proceeding;
Pleader- With reference to any proceedings in the Court a pleader means a pleader or Mukhtar authorised under law for the time being in force and includes:
(1) An advocate;
(2) A vakeel or any attorney of High Court so authorised;
(3) Any other person appointed with the permission of the Court. A co-accused can act as pleader if so permitted. AIR 1962 Pat 244. Private person must get the prior permission. 1991 P.Cr.L.J. 2425. The discretion of the Court in permitting person to appear as ‘pleader’ must be exercised judicially with due regard to the interest of the party engaging him. AIR 1978 S.C. 1019; 1978 Cr.L.J. 778.
A power of attorney authenticated by fail authorities is a valid document. 1991 P.Cr.L.J. 25. A constituted attorney can appear for the accused. 1991 P.Cr.L.J. 2425.
(s) ‘Police-station’. ‘Police-station’ means any post or place declared generally or specially, by the Provincial Government to be a Police Station and includes any local area specified by the Provincial Government in this behalf:
Police station-Police station is a place declared generally or specifically by the provincial Government to be a police station and includes any local area so specified except a beat-house. AIR 1960 Cal 519. Does not include vehicle. (1963) 3 SCR 386. Detention in a tee other than notified is illegal. PLD 1965 Lah 324.
(t) ‘Public Prosecutor’. Public Prosecutor’ means any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of the State in any High Court in the exercise of its original criminal jurisdiction:
Public prosecutor-Public Prosecutor means any person appointed u/s. 492 and includes Assistant Public Prosecutor and any person conducting prosecution under Public Prosecutor. PLD 1960 Dacca 783. He is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function. AIR 1957 S.C. 389. Government advocate under instructions of the Advocate General who is appointed u/s 492 to be Public Prosecutor for all cases in the High Court is a Public Prosecutor. 1966 Raj. Law Weekly 300; 1981 S.C. Cr. R. 301. Additional Government Advocate appointed as a public Prosecutor is a Public Prosecutor lawfully empowered to present appeal in the High Court against orders of acquittal. AIR 1971 S.C. 1977. A private pleader instructed by a private party will not be permitted to conduct prosecution. 1991 Mad. L.J. Cr. 624.
(u) ‘Sub-division’. ‘Sub-division’ means a sub-division of a district.
[Clauses (v) and 
of Subsection (1) of Section 4 omitted by Law Reform Ordi. 1972.]
Province of Punjab
Omission of clauses (e) (v) & by Law Reforms Ordinance 1972. item No. 1 enforced w.e.f. 26.12.1975 vide No. Judl. 1-3(2)/75 dated 26.12.1975.
(2) Words referring to acts. Words which refer to acts done, extend also to illegal omission; and Words to have same meaning as in Pakistan Penal Code. All words and expression used herein and defined in the Pakistan Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by the Code.
5. Trial of offences under Penal Code. (1) All offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) Trial of offences against other laws. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
PART II – CONSTITUTION AND POWERS OF CRIMINAL COURTS AND OFFICES – CHAPTER II – OF THE CONSTITUTION OFCRIMINAL COURTS AND OFFICES
A. Classes of Criminal Courts
[6. Classes of Criminal Courts and Magistrates:-–
(1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:
(i) Courts of Session;
(ii) Courts of Magistrates.
(2) There shall be the following classes of Magistrates, namely:
(i) Judicial Magistrates:–
(1) Magistrates of the first class.
(2) Magistrates of the second class.
(3) Magistrates of the third class.
(4) Special Judicial Magistrate.
(ii) Executive Magistrates:-
(1) District Magistrates.
(2) Additional District Magistrates.
(3) Sub-Divisional Magistrates.
(4) Special Executive Magistrates.’]
[(5) Magistrates of the first class.
(6) Magistrates of the second class.
(7) Magistrates of the third class.]
B. Territorial Divisions
7. Sessions divisions and districts. (1) Each Province shall consist of session; and every session divisions shall, for the purposes of this Code, be a district or consist of districts.
(2) Power to alter divisions and districts. The Provincial Government may alter the limits or the number of such divisions and districts.
(3) Existing divisions and districts. The sessions divisions and districts existing when this Code comes into force shall be sessions divisions and districts respectively, unless and until they are so altered.
8. Power to divide districts into sub-divisions. (1) The Provincial Government may divide any district into sub-divisions, or make any portion of any such district a sub-division, and may alter the limits of any sub-division.
(2) Existing sub-divisions maintained. All existing sub-divisions which are now usually put under the charge of a Magistrate shall be deemed to have been made under this Code.
C. Courts and Offices
9. Court of Sessions. (1) The Provincial Government shall establish a Court of Session for every session division, and appoint a judge of such Court.
(2) The Provincial Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but until such order is made, the Court of Session shall hold their sittings as heretofore.
(3) The Provincial Government may also appoint Additional Sessions Judges and Assistant Session Judges to exercise jurisdiction in one or more such Courts.
(4) Sessions Judge of one sessions division may be appointed by the Provincial Government to be also an Additional Session Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the Provincial Government may direct.
(5) All Courts of Session existing when this Code comes into force shall be deemed to have been established under this Act.
[10. District Magistrate:
(1) In every district the Provincial Government shall appoint a District Magistrate
(2) The Provincial Government may also appoint Additional District Magistrate to exercise jurisdiction in one or more Districts and such Additional District Magistrates shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force, as the Provincial Government may direct.]
[(3) For the purposes of section 192, sub-section (1) and section [407, sub-section (2) such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate].
District Magistrate- District Magistrate is not one of the Courts established under Cr.P.C. District Magistrate occupies dual position, he is the Chief Executive, Incharge of the administration of the District and as Magistrate of the First Class, he may exercise the powers conferred upon such Magistrate by the Cr.P.C. PLD 1988 Lah 352 Additional District Magistrate-District Magistrate a/one authorised by legislature to do certain acts. Additional District Magistrate is not empowered to exercise District Magistrate’s power under S. 10(2), Cr.P.C. PLD 1958 Dacca 425. However, Additional District Magistrate is competent to exercise powers even after his transfer to some equal or higher office in same local area. PLD 1962 Lah 939.
11. Officers temporarily succeeding to vacancies in office of District Magistrate. Whenever in consequence of, the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the chief executive administration of the district, such officer shall, pending the orders of the Provincial Government, exercise all the powers and perform all the duties respectively conferred and imposed by the Code on the District Magistrate.
Additional Deputy Commissioner-Additional Deputy Commissioner as Chief Executive of District and Magistrate 1st Class can pass order under S. 144(1). 1980 P.Cr.L.J.851.
12. [Subordinate] Magistrates. (1) The Provincial Government may appoint as many persons as it thinks fit [***] to be Magistrates of the first, second or third class in any district and may from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code.
(2) Local limits of their jurisdiction. Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.
[Province of Balochistan. The Government of Balochistan has fixed the limits of territorial jurisdiction for the Judicial Magistrates appointed in each Sessions Division to be the same as the territorial limits of the Sessions Divisions fixed vide Notification No.US(Judl)5(7)/87/674-716, dated the 28th February, 1994.
2. The Judicial Magistrate(s) appointed in a Session Division shall have the jurisdiction throughout that Division subject to the powers conferred upon them under section 12 of the Code of Criminal Procedure, 1898, as amended by the Law Reforms Ordinance, 1972, and further amended by the Law Reforms (Amendment) Ordinance, 1996, (XL of 1996).
3. Wherever, in any of the Sessions Divisions the number of Judicial Magistrates is more than one, the Sessions Judge of the Division, shall distribute the business amongst the Judicial Magistrates. (Gazette Extra dated 22nd March, 1996, PLD 1997 Bal. St. 5)].
Jurisdiction of Magistrate. Jurisdiction of Magistrate extends throughout District unless restricted by order. [71 DLR 839] It is essential that offence must be shown to be triable by Magistrate in the Schedule. [1972 P.Cr.L.J. 233]
Balochistan Province-See Notification No.US (Judl)4(10)/94/Vol.I, dated 22.3.1996. For text see Cr.P.C. by the same Author. .
13. Power to put [Magistrate] in charge of sub-division. (1) The Provincial Government may place any [Executive Magistrate] in charge of a sub-division, and relieve him of the charge as occasion requires.
(2) Such Magistrates shall be called Sub-Division Magistrates.
(3) Delegation of powers to District Magistrate. The Provincial Government may delegate its powers under this section to the District Magistrate.
[14. Special Judicial and Executive Magistrates.
(1) The Provincial Government may on the recommendation of the High Court, confer upon any person all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate in respect to particular cases or to a particular class or particular classes of cases, or in regard to cases generally in any local area.
(2) Such Magistrates shall be called Special Judicial Magistrates, and shall be appointed for such term as the Provincial Government may, in consultation with the High Court by general or special order, direct.
(3) The Provincial Government may also appoint Executive Magistrate for particular areas or for performance of particular functions and confer upon them or any of the powers conferred or conferrable by or under this Code on an Executive Magistrate.
(4) Such Magistrates shall be called Executive Magistrates, and shall be appointed for such term as the Provincial Government may, by general or special order, direct: Provided that no powers shall be conferred under this sub-section on any police officer below the grade of Assistant Superintendent, and no powers shall be conferred on a police officer except so far as may be necessary for preserving the peace, preventing crime and detecting, apprehending and detaining offenders in order to their being brought before a Magistrate, and for the performance by the officer of any other duties imposed upon him by any law for the time being in force.
(5) The Provincial Government may delegate, subject to such limitations as it thinks fit, to any officer under its control the powers conferred by subsection (3).’]
15. Benches of Magistrates. (1) The Provincial Government may direct any two or more [Judicial Magistrates] in any place to sit together as a Bench, and may by order invest such Bench with any of the powers conferred or conferrable by or under thisCode on Magistrate of the first, second or third class, and direct it to exercise such powers in such cases, or such classes only, and within such local limits, as the Provincial Government thinks fit.
(2) Powers exercisable by Bench in absence of special direction. Except as otherwise provided by any order under this section every such Bench shall have the powers conferred by this Code on a Magistrate of the highest class to which any one of its members, who is present taking part in the proceedings as a member of the Bench, belongs, and as for as practicable shall, for the purposes of this Code, be deemed to be a Magistrate of such class.
16. Power to frame rules for guidance of Benches. The Provincial Government may ‘…….. from time to time, make rules consistent with this Code for the guidance of Magistrates, Benches in any district respecting the following subjects:
(a) the classes of cases to be tried:
(b) the times and places of sitting;
(c) the constitution of the Bench for conducting trials;
(d) the mode of settling differences of opinion which may arise between the Magistrates in session.
17. [‘Subordination of Judicial Magistrates and Benches to Sessions Judge.
(1) All Judicial Magistrates appointed under sections 12 and 14 and all Benches constituted under section 15 shall be subordinate to the Sessions Judge, and he may from time to time, make rules or give special orders consistent with this Code and any rules framed by the Provincial Government under section 16, as to the distribution of business among such Magistrates and Benches,
(2) Subordination of Executive Magistrates to District Magistrate. All Executive Magistrates appointed under section i3[i2] 13 and 14 shall be subordinate to the District Magistrate and he may, from time to time, make rules or give special orders consistent with this Code and any rules framed by the Provincial Government under section 16, as to the distribution of business among such Magistrates.
(2-A) Subordination of Executive Magistrates to Sub-Divisional Magistrate.-Every Executive Magistrate (other than a Sub-Divisional Magistrate) in a sub-Division shall also be subordinate to the Sub-Divisional Magistrate, subject, however, to the general control of the District Magistrate’,]
(3) Subordination of Assistant Sessions Judges to Sessions Judge. All Assistant Judges shall be subordinate to the Session Judge in whose Court they exercise jurisdiction, and he may, from time to time, make rules consistent with his Code as to the distribution of business among such, Assistant Sessions Judges.
(4) The Session Judge may also when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge …… and such Judge . .. . shall have jurisdiction to deal with any such application.
D. Courts of Presidency Magistrates 18 to 21. Appointment of Presidency Magistrates. Benches Local limits of jurisdiction, Chief Presidency Magistrate. Omitted by A.O., 1949 Sch.
E-Justice of the Peace
[22. A Provincial Government so far as regards the territories subject to its administration may by notification in the official Gazette, appoint such persons resident within Pakistan and not being the subjects of any foreign State as it thinks fit to be justices of the Peace within and for the local area mentioned in such notification.]
Punjab Amendment
[22. Appointment of Justices of the Peace. The Provincial Government may, by notification in the official Gazette, appoint for such period as may be specified in the notification, and subject to such rules as may be made by it any person who is a citizen of Pakistan and as to whose integrity and suitability it is satisfied, to be a Justice of the Peace for a local area to be specified in the notification, and more than one Justice of the Peace may be appointed for the same local area.
22-A. Powers of Justice of the Peace. (1) A Justice of the Peace for any local area shall, for the purpose of making an arrest, have within such area all the powers of a Police Officer referred to in section 54 and an officer in-charge of a police-station referred to in section 55.
(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer in-charge of the nearest police-station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.
(3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him:
(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and
(b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquillity.
(4) Where a member of the police force on duty has been called upon to render aid under subsection (3), such call shall be deemed to have been made by a competent authority.
(5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government:
(a) issue a certificate as to the identity of any person residing within such area, or
(b) verify any document brought before him by any such person, or
(c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate.
22-B. Duties of Justices of the Peace. Subject to such rules as may be made by the Provincial Government, every Justice of the peace for any local area shall,
(a) on receipt of information of the occurrence of any incident involving a breach of the peace, or of the commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to officer in charge of the nearest police-station.
(b) if the offence referred to in clause (a) is a cognizable offence, also prevent the removal of any thing from, or the interference in any way with, the place of occurrence of the offence;
(c) when so required in writing by a police-officer making an investigation under Chapter XIV in respect of any offence committed within such local area.
(i) render all assistance to the police-officer making such an investigation.
(ii) record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed’.]
23 & 24. Justice of the Peace for the Presidency-towns. Present Justices of the Peace. Rep. by the Criminal Law Amendment Act, 1923 (XII of 1923) S. 4.
25. Ex-officio Justice of the Peace. In virtue of their respective offices, the Judges of the High Courts are Justice of the Peace within and for the whole of Pakistan, Sessions Judges and District Magistrates are Justices of the Peace within and for the whole of the territories administered by the Provincial Government under which they are serving.
F. Suspension and Removal
26 & 27. Suspension and removal of Judges and Magistrates. Suspension and removal of Justices of the Peace. Rep. by A.O., 1937.
CHAPTER III
POWERS OF COURTS
A. Description of offences cognizable by each Court
28. Offences under Penal Code. Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried:
(a) by the High Court; or
(b) by the Courts of Sessions; or
(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable; [Provided that the offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code (Act XLV of 1860), except offences specified in section 153A and section 281 of the said Code, shall be tried by the Executive Magistrates and the expression ‘Magistrate’ used in the said eighth column shall mean Executive Magistrate of the respective class.]
Illustration
A is [tried by] the Session Court on a charge of culpable homicide. He may be convicted of voluntarily causing hurt, an offence triable by a Magistrate.
29. Offences under other laws. (1) Subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offences shown in the eight column of the second schedule to be triable; (Provided that the offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates.]
29-A. Trial of European British subjects by second and third class Magistrates. Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (II of 1950).
[29-B. Jurisdiction of the case of juveniles. Any offence, other than one punishable with death or transportation for life, committed by any person who at the date when he appears or is brought before the Court is under the age of fifteen years, may be tried by a District Magistrate or by any Magistrate specially empowered by the Provincial Government to exercise the powers conferred by section 8, sub-section (1), of the Reformatory Schools Act 1897 or, in any area in which the said Act has been wholly or in part repealed by any other law providing for the custody, trial or punishment youthful offenders, by any Magistrate empowered by or under such Saw to exercise all or any of the powers conferred thereby].
30. Offences not punishable with death. In the Punjab, the North-West Frontier, in Sind and in those parts of the Provinces in which there are Deputy Commissioners or Assistant Commissioners the Provincial Government may, notwithstanding anything contained in [sections 28 and 29. invest any Judicial] District Magistrate or any Magistrate of the first class with power to try as a Magistrate ail offences not punishable with death.
B. Sentences which may be passed Courts of various Classes
31. Sentences which High Courts and Session Judges may pass. (1) A High Court may pass any sentence authorized by law.
(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.
(3) An Assistant Sessions Judges may pass any sentence authorized by law, except a sentence of death or of 24[imprisonment for a term exceeding seven years].
32. Sentence which [Magistrate] may pass. (1) The Courts of [Judicial Magistrates] may pass the following sentences namely:
(a) Courts of Magistrates of the first class; Imprisonment for a term not exceeding [three years], including such solitary confinement as Is authorized by law; Pine not exceeding [fifteen] thousand rupees [arsh, daman} Whipping.
(b) Courts of Magistrates of the second class; Imprisonment for a term not exceeding one year,including such solitary confinement as is authorized by law; Fine not exceeding (five)thousand rupees,
(c) Courts of Magistrates of the third class; Imprisonment for a term not exceeding one month;Fine not exceeding (one thousand) rupees.
(2) The Courts of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorized by law to passs.
33. Power of Magistrates to sentence to imprisonment in default of fine. (1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as is authorized by law in case of such default; Provided that:
Proviso as to certain cases.
(a) The term is not in excess of the Magistrate’s powers under this Code:
(b) In any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence the period of imprisonment awarded in default of payment of the fine shall not exceed one fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 32.
[34. Higher powers of certain District Magistrates. The Court of a Magistrate, specially empowered under section 30, may pass any sentence authorized by Saw, except a sentence of death or….. Imprisonment for a term exceeding seven years.]
34-A. (Sentences which Court and Magistrates may pass upon European British subjects]. Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (11 of 1950),Sch.
35. (1) Sentence in case of conviction of several offences at one trial. When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Pakistan Penal Code sentence him, for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments when consisting of imprisonment 34…… to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court; Provided as follows:
Maximum term of punishment.
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) if the case is tried by a Magistrate, as……. the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.
(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.
C. Ordinary and Additional Powers
36. Ordinary powers of Magistrates. All ^[Judicial and Executive Magistrates] have the powers hereinafter respectively conferred upon them and specified in the third schedule Such powers are called their ‘ordinary powers’.
37. 37[‘Additional powers conferrable on Magistrates. In addition to his ordinary powers, any Magistrate may be invested by the Provincial Government with any powers specified in the Fourth Schedule;
Provided that in the case of a Judicial Magistrate, such powers shall be conferred on the recommendation of the High Court;
Provided further that the Provincial Government may authorize a District Magistrate to invest any Magistrate subordinate to him with any of the powers specified in Part 11 of the Fourth Schedule.’]
38. Control of District Magistrates investing power. The powers conferred on the District Magistrate by section 37 shall be exercised subject to the control of the Provincial Government.
D. Conferment, Continuance and Cancellation of Powers
39. Mode of conferring powers. (1) In conferring powers under this Code the Provincial Government may by order, empower persons specially by name or in virtue of their office or classes of officials generally by their official title.
(2) Every such order shall take effect from the date on which it is communicated to the person so empowered.
40. Powers of officers appointed. Whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same Provincial Government, he shall, unless the Provincial Government otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed.
41. Powers may be cancelled. (1) The Provincial Government may withdraw all or any of the powers conferred under thisCode on any person by it or by any officer subordinate to it; (‘provided that, in the case of Judicial Magistrate, the withdrawal of such persons shall not be made except on the recommendation of the High Court.’]
(2) Any powers conferred by the District Magistrate may be withdrawn by the District Magistrate.
PART III – GENERAL PROVISIONS
CHAPTER IV
OF AID AND INFORMATION TO THE MAGISTRATES, THE POLICE AND PERSONS MAKING ARRESTS
42. Public when to assist Magistrate and police. Every person is bound to assist a Magistrate ”I, Justice of Peace] or police-officer reasonably demanding his aid:
(a) in the taking or preventing the escape of any other person whom such Magistrate or police-officer is authorized to arrest;
(b) in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property,
43. Aid to person, other than police-officer, executing warrant. When a warrant is directed to a person other than a police-officer, any other person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant.
[44. Public to give information of certain offences. (1) Every person aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Pakistan Penal Code, namely, 121, 121 A, 122, 123,123 124, 124A, 125, 126, 130, 143, 144, 145, 147, 148, 153A, 161, 162,163, 164.165. 168.170,231, 232, 255, 302, 303, 304, 304A, 364A, 382, 392, 393, 394, 395 396, 397, 398, 399. 402, 435,436 449, 450, 456, 457. 458, 459, 460 and 489A, shall, in the absence of reasonable excuse, the burden of proving shall lie upon the person so aware, forthwith give information to the nearest Magistrate [, Justice of the Peace,] or police-officer of such commission or intention; and]
(2) For the purposes of this section the term, ‘offence’ includes any act committed at any place out of Pakistan which would constitute an offence if committed in Pakistan.
45. Village-headmen, accountant, landholders and others bound to report certain matters. (1) Every village-headman, accountant, village-accountant, village watchman, village police-officer, owner or occupier of land, and the agent of any such owner or occupier in charge of the management of that land and every officer employed in the collection of revenue or rent of land on the part of the Government or the Court of Wards, shall forthwith communicate to the nearest Magistrate [or Justice of Peace] or the officer in charge of the nearest police-station whichever is the nearer, any information which he may possess respecting:
(a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in any village of which is headman, accountant, watchman or police-officer, or in which he owns or occupies land, or is agent, or collects revenue or rent;
(b) the resort to any place within, or the passage through, such village of any person whom he knows, or reasonably suspects to be a thug, robber, escaped convict or proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under sections 143, 144, 145, 147 or 148 of the Pakistan Penal Code;
(d) the occurrence in or near such village or any sudden or unnatural death or of any death under suspicious circumstances; or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person;
(e) the commission of, or intention to commit, at any place out of Pakistan near such village any act which, if committed in Pakistan would be an offence punishable under any of the following sections of the Pakistan Penal Code, namely, 231, 232, 233, 234, 235,236,237,238,302, 304,382,392,393, 394, 395, 396, 397. 398, 399, 402, 435, 436, 449, 450, 457, 458, 459, 460, 489A, 489B, 489C and 489D;
(f) any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the Provincial Government has directed him to communicate information.
(2) In this section:
(i) ‘village’ includes village-lands; and
(ii) the expression ‘proclaimed offender’ includes any person proclaimed as an offender by any Court or authority established or continued by the Central Government in any part of Pakistan, in respect of any act which if committed in Pakistan, would be punishable under any of the following sections of the Pakistan Penal Code, namely 302,304, 382, 392, 393,394.395,396, 397, 398, 399, 402,435,436, 449, 450, 457, 458, 459 and 460.
(3) Appointment of village-headmen by District Magistrate or Sub-Divisional Magistrate in certain cases for purposes of this section. Subject to rules in this behalf to be made by the Provincial Government the District Magistrate or Sub-Divisional Magistrate may from time to time appoint one or more persons with his or their consent to perform the duties of a village-headman under this section whether a village-headman has or has not been appointed for that village under any other law.
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CHAPTER V – OF ARREST, ESCAPE AND RETAKING
A Arrest generally
46. Arrest how made. (1) In making an arrest the police-officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
(2) Resisting endeavor to arrest. If such person forcibly resists the endeavor to arrest him or attempts to evade the arrest, such police-officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with [imprisonment for life.]
47. Search of place entered by person sought to be arrested. If any person acting under a warrant of arrest, or any police-officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being in charge of such place shall, on demand of such person acting as aforesaid or such police-officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
48. Procedure where’ ingress not obtainable. If ingress to such place cannot be obtained under section 47 it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police-officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance dully made, he cannot otherwise obtain admittance.
Breaking open zanana. Provided that if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public such person or police-officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.
49. Power to break open doors and windows for purposes of liberation. Any police-officer or other person authorized to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.
50. No unnecessary restraint. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
51. Search of arrested persons. Whenever a person is arrested by a police-officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and
whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail,
the officer making the arrest or, when the arrest is made by a private person, the police-officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him.
52. Mode of searching woman. Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman, with strict regard to decency.
53. Power to seize offensive weapons. The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested,
B. Arrest without warrant
54. When police may arrest without warrant. (1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest:
Firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;
Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking;
Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government;
Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
Fifthly, any person who obstructs a police-officer while in the execution of his duty or who has escaped, or attempts to escape from lawful custody;
Sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan [****];
Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan which, if committed in Pakistan, would have been punishable as an offence and, for which he is, under any law relating to extradition or [****] otherwise, liable to be apprehended or detained in custody in Pakistan.
Eightly, any released convict committing a breach of any rule made under section 565, sub-section (3);
Ninethly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
55. Arrest of vagabonds, habitual robbers, etc. (1) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested:
(a) any person found taking precautions to conceal his presence within the limits of such station, under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence; or
(b) any person within the limits of such station who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself; or
(c) any person who is by repute an habitual robber, house-breaker or thief, or an habitual receiver of stolen property knowing it to be stolen, or who by repute habitually commits extortion or in order to the committing of extortion habitually puts or attempts to put person in fear of injury.
56. Procedure when police-officer deputes subordinate to arrest without warrant (1) When any officer incharge of a police station or any police-officer making an investigation under Chapter XIV requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made. The officer so require shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.
57. Refusal to give name and residence. (1) When any person who in the presence of a police-officer has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate [having jurisdiction] if so required:
Provided that, if such person is not resident in Pakistan, the bond shall be secured by a surety or sureties resident in Pakistan.
(3) Should the true name and residence of such person be not ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to nearest Magistrate having Jurisdiction.
58. Pursuit of offenders into other jurisdictions. A police-officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest under this Chapter, pursue such person into any place in Pakistan.
Explanation. In this section ‘police officer includes a police officer acting under this Code as in Azad Jammu & Kashmir.]
59. Arrest by private persons and procedure on such arrest. (1) Any private person may arrest any person who in his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police-officer or, in the absence of a police-officer, take such person or causes him to be taken in custody to the nearest police-station.
(2) If there is reason to believe that such person comes under the provisions of section 54, a police-officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police-officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 57. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
60. Person arrested to be taken before Magistrate or officer in charge of police-station. A police-officer making an arrest without warrant shall, without, unnecessary delay and subject to the provisions herein contained as to bail, take and send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police-station.
61. Person arrested not be detained more than twenty four hours. No police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
62. Police to report apprehensions. Officers in charge of police station shall report, to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all person arrested without warrant, within the limits of their respective station, whether such persons have been admitted to bail or otherwise.
63. Discharge of person apprehended. No person who has been arrested by a police-officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.
64. Offence committed in Magistrate’s presence. When any offence is committed in the presence of a Magistrate within the local limits of his jurisdiction he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provision herein contained as to bail commit the offender to custody.
65. Arrest by or in presence of Magistrate. Any Magistrate may at any time arrest or direct the arrest, in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
66. Power, on escape, to pursue and retake. If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in Pakistan.
67. Provisions of escape, to sections 47, 48 and 49 to apply to arrest under section 66. The provisions of sections 47, 48 and 49 shall apply to arrest under section 66, although the person making any such arrest is not acting under a warrant and is not police-officer having authority to arrest.
PART III – GENERAL PROVISIONS –
CHAPTER VI – OF PROCESSES TO COMPEL APPEARANCE
A. Summons
68. Form of summons. (1) Every summons issued by a Court under this Code shall be in writing in duplicate, signed and sealed by the presiding officer of such Court, or by such other officer as the High Court may, from time by rule, direct.
(2) Summons by whom served. Such summons shall be served by a police-office subject to such rules as the Provincial Government may prescribe in this behalf by an office 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].
69. Summons how served. (1) The summons shall, if practicable be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
(2) Signature of receipts for summons. Every person on whom a summons is so served shall …. sign a receipt therefor on the back of the other duplicate.
(3) Service of a summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation or by registered post letter addressed to the chief officer of the corporation in Pakistan. In such case the service shall be deemed to have effected when the letter would arrive in ordinary course of post.
70. Service when person summoned cannot be found. Where the person summoned cannot by the exercise of due diligence be found, the summons may be served 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 therefor on the back of the other duplicate.
71. Procedure when service cannot be effected as before provided. If service in the manner mentioned in sections 69 and 70 cannot by the exercise of the 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 person summoned ordinarily resides; and thereupon the summons shall be deemed to have been duly served.
72. [Service on servants of State or, a statutory body or a company]. (1) Where the person summoned is in the active service of State or of s[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, and shall return it to the Court under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.
73. Service of summons outside local limits. When a Court desires that a summons issued by it shall be served at any place outside the local limits of its jurisdiction, it shall 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.
74. Proof of service in such cases and when serving e[person] not present. (1)When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the [person] who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by section 69 or section 70) by the person to whom it was delivered or tendered or with whom it was left shall be admissible in evidence, and the statement made therein shall be deemed to be correct unless and until the contrary is proved.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.
B. Warrant of Arrest
75. Form of warrant of arrest. (1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench; and shall bear the seal of the Court.
(2) Continuance of warrant of arrest. Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
76. Court may direct security to be taken. (1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until, otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.
(2) The endorsement shall state:
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued, are be respectively bound; and
(c) the time at which he is to attend before the Court.
Recognizance to be forwarded. (3) Whenever security is taken under this section the officer to whom the warrant is directed shall forward the bond to the Court.
77. (1) Warrants to whom directed. A warrant of arrest shall ordinarily be directed to one or more police-officers; but any Court issuing such a warrant may, if its immediate execution is necessary and no police-officer is immediately available, direct it to any other person or persons; and such person shall execute the same.
(2) Warrants to several person. When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more, of them.
78. Warrant may be directed to land-holders, etc. (1) A District Magistrate or Sub- Divisional Magistrate may direct a warrant to any landholder, farmer or manager of land within his district or sub-division for the arrest of any escaped convict, proclaimed offender or person who has been accused of a non-bailable offence, and who has eluded pursuit.
(2) Such landholder, farmer or manager shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, his land or farm, or the land under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police-officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 76.
79. Warrant directed to police-officer. A warrant directed to any police-officer may also be executed by any other police-officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
80. Notification of substance of warrant. The police-officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.
81. Person arrested to be brought before Court without delay. The police-officer or other person executing a warrant of arrest shall (subject to the provisions of section 76 as to the security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.
82. Where warrant may be executed. A warrant of arrest may be executed at any place in Pakistan.
[Explanation. In this Section, ‘warrant of arrest’ includes a warrant of arrest issued under this Code as enforced in Azad Jammu & Kashmir.]
83. Warrant forwarded for execution outside jurisdiction. (1) When a warrant is to be executed outside the local limits of the jurisdiction of the Court issuing the same, such Court may, instead of directing such warrant to a police-officer, forward the same by post or otherwise to any Magistrate or District Superintendent of Police within the local limits of whose jurisdiction it is to be executed.
(2) The Magistrate or District Superintendent to whom such warrant is so forwarded shall endorse his name thereon and, if practicable, cause it to be executed in manner hereinbefore provided within the local limits of his jurisdiction.
84. Warrant directed to police officer for execution outside jurisdiction. (1) When a warrant directed to a police-officer is to be executed beyond the local limits of the jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to a Magistrate or to a police-officer not below the rank of an officer in charge of a station, within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police-officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police-officer to whom the warrant is directed to executed the same within such limits, and the local police shall, if so required, assist such officer in executing such warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or public-officer within the local limits of whose jurisdiction the warrant Is to be executed, will prevent such execution, the police-officer to whom it is directed may execute the same without such endorsement in any place beyond the local limits of the jurisdiction of the Court which issued it.
85. Procedure on arrest of person against whom warrant issued. When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within twenty miles of the place of arrest or is nearer than the Magistrate or District Superintendent of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 76, be taken before such Magistrate or District Superintendent.
86. Procedure by Magistrate before whom person arrested is brought. (1) Such Magistrate or District Superintendent shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court:
Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or a direction has been endorsed under section 76 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent shall take such bail or security, as the case may be, and forward the bond to the Court which issued the warrant:
[Provided further that, if the offence is not bailable or no direction has been endorsed under section 76 on the warrant, the Sessions Judge of the Sessions division in which the person is arrested may, subject to the provisions of section 497 and for sufficient reasons release the person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the person to appear by a specified date before the Court which issued the warrant and forward the bond to that Court.]
(2) Nothing in this section shall be deemed to prevent a police-officer from taking security under section 76.
[86-A. Procedure for removal in custody to Tribal Area. Where a person arrested under section 85 is to be removed in custody to any place in the Tribal Areas, he shall be produce before a [Magistrate] within the local limits of whose jurisdiction the arrest was made, and such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, including the power to order the production of evidence, as if the person arrested were charged with an offence committed within the jurisdiction of such Magistrate: and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant.]
C. Proclamation and Attachment
87. Proclamation for person absconding. (1) If any Court [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 home stead in which such person ordinarily resides or to some conspicuous place of such town or village; and
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that ; requirements of this section have been complied with, and that the proclamation was published on such day.
88. Attachment of property of person absconding. (1) The Court issuing a proclamation under section 87 may at any time order the attachment of any property, movable or immovable or both, belonging to the proclaimed person.
(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made;
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the Provincial Government, be made through the Collector of the district in which the land is situate, and in all other case;-
(e) by taking possession; or
(f) by the appointment of a receiver; or
(g) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or
(h) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.
(6) Act V of 1908. The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under [Order XL of the Code of Civil Procedure, 1908].
(6A) If any claim is preferred to, or objection made to the attachment of, any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:
Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.
(6B) Claims or objections under sub-section (6A) may be preferred or made in the Court by which the order of attachment is issued or, if the claim or objection is in respect of property attached under an order endorsed by a District Magistrate in accordance with the provisions of sub-section (2), in the Court of such Magistrate.
(6C) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: (…….]
Provided that, if it is preferred or made in the Court of a District Magistrate such Magistrate may make it over for disposal to any Magistrate subordinate to him.
(6D) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (6A) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.
(6E) If the proclaimed person appears within the time specified in the proclamation the Court shall make an order releasing the property from the attachment.
(7) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the Provincial Government, but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under sub-section (6A) has been disposed of under that subsection, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit.
89. Restoration of attached property. If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the Provincial Government, under sub-section (7) of section 88, appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such’ Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, net proceeds of the sale, or, if part only thereof has been sold the net proceeds of the sale and the residue of the property, shall after satisfying thereout all costs incurred in consequence of the attachment, be delivered to him.
D. Other Rules regarding Processes
90. Issue of warrant in lieu of, or in addition to, summons. A Court may, in any case in which it is empowered by this Codeto issue a summons for the appearance of any person [……] issue after recording its reasons in writing, a warrant for his arrest:
(a) if, either before the issue of such summons or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
91. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summon or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court.
92. Arrest by breach of bond for appearance. When any person who is bound by any bond taken under this Code to appear before a Court, does not so appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him.
93. Provision of this Chapter generally applicable to summonses and warrants of arrest. The provision contained in this Chapter relating to a summons and warrants, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.
(E) [(Special Rules regarding processes issued for service or execution outside Pakistan and processes received from outside Pakistan for service or execution within Pakistan.)
93-A. Sending of summons for service outside Pakistan. (1) Where a Court in Pakistan desires that a summons issued by it to an accused person shall be served at any place outside Pakistan within the local limits of the jurisdiction of a Court established or continued by the authority of the Central Government in exercise of its foreign jurisdiction, it shall send such summons, in duplicate, by post or otherwise, to the presiding officer of that Court to be served.
(2) The provisions of section 74 shall apply in the case of a summons sent for service under this section as if the presiding officer of the Court to whom it was sent were a Magistrate in Pakistan.
93-B. Sending of warrant for execution outside Pakistan. Notwithstanding anything contained in section 82, where a Court in Pakistan desires that a warrant issued by it for the arrest of an accused person shall be executed at any place outside Pakistan within the local limits of the jurisdiction of a Court established or continued by the authority of the Central Government in exercise of its foreign jurisdiction, it may send such warrant, by post or otherwise, to the presiding officer of that Court to be executed.
93-C. Service and execution in Pakistan of processes received from outside Pakistan. (1) Where a Court has received for service or execution a summons to, or a warrant for the arrest of, an accused person issued by a Court established or continued by the authority of the Central Government in exercise of its foreign jurisdiction, outside Pakistan, it shall cause the same to be served or executed as if it were a summons or warrant received by it form a Court in Pakistan for service or execution within the local limits of its jurisdiction.
(2) Where any warrant of arrest has been so executed the person arrested shall so far as possible be dealt with in accordance with the procedure prescribed by sections 85 and 86.
CHAPTER VII –
OF PROCESS TO COMPEL THE PRODUCTION OF DOCUMENTS AND OTHER MOVABLE PROPERTY AND FOR THE DISCOVERY OF PERSONS WRONGFULLY CONFINED
A. Summons to produce
94. Summons to produce document or other thing. (1) Whenever any Court, or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officers a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order:
Provided that no such officer shall issue any such order requiring the production of any document or other thing which is in the custody of a bank or banker as defined in the Bankers’ Books Evidence Act, 1891 (XVIII of 1891) and relates, or might disclose any information which relates to the bank account of any person except.
Punjab Amendment: [Provided that no officer shall issue any such order requiring the production of any document or other thing which is in the custody of a bank or banker as defined in the Banker Books Evidence Act, 1891 (XVIII of 1891) and relates or might disclose any information which relates, to bank account of any person except with the prior permission In writing of the High Court or the Sessions Judge within whose jurisdiction such bank or banker, as the case may be, is situated or carries on business.]
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the Evidence Act, 1872, section 123 and 124, or to apply to a letter, postcard, telegram, or other document or any parcel or thing in the custody of the Postal or Telegraph authorities.
(a) for the purpose of investigating an offence under sections 403, 406, 408 and 409 and section 421 to 424 (both inclusive) and section 465 to 447-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and
(b) in other cases, with the prior permission in writing of the High Court.
95. Procedure as to letters and telegraphs. (1) If any document, parcel or thing in such custody is, in the opinion of any District Magistrate, High Court or Court of Sessions, wanted for the purpose of any investigation, inquiry trial or other proceeding under this Code, such Magistrate or Court may require the Postal or Telegraph authorities, as the case may be to deliver such document, parcel or thing to such person as such Magistrate or Court directs.
(2) If any such document, parcel or thing is, in the opinion of any other Magistrate, or District Superintendent of Police, wanted for any such purpose, he may require the Postal or Telegraph Department, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the orders of any such District Magistrate, or Court.
B. Search warrants
96. When search warrant may be issued. (1) Where any Court has reason to believe that a person to whom a summons or order under section 94 or a requisition under section 95, sub-section (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition.
or where such documents or thing is not known to the Court to be in the possession of any person, or where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection.
it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.
(2) Nothing herein contained shall authorize any Magistrate other than a District Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the Postal or Telegraph authorities.
97. Power to restrict warrant. The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.
98. Search of house suspected to contain stolen property, forged documents, etc. (1) If a District Magistrate, Sub-Divisional Magistrate, or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit or sale or manufacture of forged documents, false seals or counterfeit stamps, i5[bank notes, currency notes or coins, or instruments or materials for counterfeiting coins stamps, bank notes or currency notes] or for forging. or that any forged documents, false seals or counterfeit stamps [bank note currency notes or coins or instruments or materials used for counterfeiting coins, stamps, bank notes or currency notes] or for forging, are kept or deposited in any place. or for the deposit, sale, manufacture or production of any obscene object such as is referred to in section 292 of the Pakistan Penal Code or that any such obscene objects are kept or deposited in any place; he may by his warrant authorize any police-officer above the rank of a constable-
(a) to enter, with such assistance as may be required, such place, and
(b) to search the same in manner specified in the warrant, and
(c) to take possession of any property, documents, seals, stamps, 17(bank notes, currency notes] or coins therein found which he reasonably suspects to be stolen, unlawfully obtained, forged, false or counterfeit, and also of any such instruments and materials or of any such obscene objects as aforesaid, and
(d) to convey such property, documents, seals, stamps, [bank notes, currency notes], coins, instruments, or materials or such obscene objects before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety, and
(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or manufacture or keeping of any such property, documents seals, or stamps, (bank notes, currency] notes coins, instruments or materials [or such obscene objects] knowing of having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained, or the said documents, seals, stamps, bank notes, currency notes, coin, instruments or materials, to have been forged, falsified or counterfeited, or the said instruments or materials have been or to be intended to be used for counterfeiting coin, stamps, bank notes, or currency notes or for forging 2o[or the said obscene objects to have been or to be intended to be sold, let to hire, distributed, publicly exhibited, circulated, imported or exported].
(2) The provisions of this section with respect to:
(a) counterfeit coin,
(b) coin suspected to be counterfeit, and
(c) instruments or materials for counterfeiting coin. shall, so far as they can be made applicable, apply respectively to:
(a) pieces of metal made in contravention of the Metal Tokens Act, 1889, or brought into Pakistan in contravention of any notification for the time being in force under 21 [section 16 of the Customs Act, 1969].
(b) pieces or metal suspected to have been so made or to have been so brought into Pakistan or to be intended to be issued in contravention of the former, of those Acts, and
(c) instruments or materials for making pieces of metal in contravention of that Act.
99. Disposal of things found in search beyond jurisdiction. When, in the execution of a search-warrant at any place beyond the local limits of the jurisdiction of the Court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be Immediately taken before the Court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction therein than to such Court, in which case the list and things shall be immediately taken before such Magistrate; and, unless there be good cause to the contrary, such Magistrate shall make an order authorizing them to be taken to such Court.
99-A. Power to declare certain publications forfeited and to issue search-warrants for the same. (1) where:-
(a) any newspaper, or book as defined in the z2[West Pakistan Press and Publication Ordinance, 1963, or any other law relating to press and publications for the time being in force] or
(b) any document.
Wherever printed, appears to the Provincial Government to contain any treasonable a seditious matter or any matter which is prejudicial to national integration or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of Pakistan or which is deliberately and maliciously intended to outrage the religious feelings of such class by insulting the religion or the religious beliefs of theat class, [or any matter of the nature referred to in clause (ii) of subsection (i) of S. 24 of the W.P. Press and Publication Ordinance. 1963) that is to say, any matte the publication of which is punishable under section 123A or section 124A or section 154A or section 295A [or S. 298A or S. 298B or S. 298C] of the Pakistan Penal Code, the Provincial Government may, by notification in the Official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government and thereupon any police-officer may seize the same wherever found in Pakistan and any Magistrate may by warrant authorize any police-officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be reasonably suspected to be.
(2) In sub-section (1) ‘document’ includes also any painting, drawing or photograph, or other visible representation.
99-B. Application to High Court to set aside order of forfeiture. (1) Any person having any interest in any newspaper, book or other document, in respect of which an order of forfeiture has been made under section 99-A (or any other law for the time being in force] may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document, in respect of which the order was made, did not contain any treasonable or seditious or other matter of such a nature as is referred to in sub-section (1) of section 99A.
([2) Nothing is sub-section (1) shall apply to a case where the order of forfeiture has been made
(a) in respect of a newspaper, book or other document printed outside Pakistan; or
(b) in respect of a newspaper, book or other document, on the conviction, in respect of such newspaper, book or other document, of the author or editor thereof for any of the offences referred to in sub-section (1) of section 99A.]
99-C. [Omitted by Law Reforms Ordinance, 1972, item 39.]
99-D, Order of High Court setting aside forfeiture. (1) On receipt of the application, the [High Court] shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained (1) treasonable or seditious or other matter of such a nature as is referred to in sub-section (1) of section 99A, set aside the order of forfeiture.
(2) (Omitted by Law Reforms Ordinance, 1972, item 40.].
99-E. Evidence to prove nature or tendency of newspapers. On the hearing of any such application with reference to any. newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the order of forfeiture was made.
99-F, Procedure in High Court. Every High Court shall, as soon as conveniently may be, frame rules to regulate the procedure in the case of such applications, the amount of the costs thereof and the execution of orders passed thereon, and until such rules are framed, the practice of such Courts in proceedings other than suits and appeals shall apply so far as may be practicable, to such applications.
99-G. Jurisdiction barred. No order passed or action taken under section 99A shall be called in question in any Court otherwise than in accordance with the provisions of sections 99B.
C. Discovery of persons wrongfully confined
100. Search for persons wrongfully confined. If any Magistrate of the first class or Sub-Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined and such search shall be made In accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
D. General provisions relating to searches
101. Direction, etc. of search-warrants. The provisions of sections 43,75,77,79,82, 83 and 84 shall, so far as may be apply to all search, warrants issued under section 96, section 98, section 99A or section 100.
102. Persons incharge of closed place to allow search. (1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of such place shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities, for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in manner provided, by section 48.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. If such person is a woman, the directions, of section 52 shall be observed.
103. Search to be made in presence of witness. (1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who. without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code.
104. Power to impound document etc., produced. Any Court may, if it thinks fit, impound any document or thing produced before it under this Code.
105. Magistrate may direct search in his presence. Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant.
PART IV –
PREVENTION OF OFFENCES
CHAPTER VIII –
OF SECURITY KEEPING THE PEACE AND FOR GOOD BEHAVIOR
A. Security for keeping the peace on conviction
106. Security for keeping the peace on conviction. (1) Whenever any person accused of any offence punishable under Chapter VIII of the Pakistan Penal Code, other than an offence punishable under section 143. section 149, section 153A or section 154 thereof, or of assault or other offence involving a breach of the peace, or of abetting the same, or any person accused of committing criminal intimidation, is convicted of such offence before a High Court a Court of Sessions, or the Court of [a District Magistrate, Sub-Divisional Magistrate or] a Magistrate of the First class, and such Court is of opinion that it is necessary to require such person to execute a bond for keeping the peace, such Court may, at the time of passing sentence on such person, order him to execute a bond for a sum proportionate to his means, with or without sureties, for keeping the peace during such period, not exceeding three years, as it thinks fit to fix.
(2) If the conviction is set aside on appeal or otherwise, the bond so executed shall become void.
(3) An order under this section may also be made by an Appellate Court [or by a Court] when exercising its powers of revision.
B. Security for keeping the peace in other cases and security for good behavior.
107. Security for keeping the peace in other cases. (1) Whenever (a District Magistrate or Sub-Divisional Magistrate or an Executive Magistrate specially empowered in this behalf by the Provincial Government or the District Magistrate] of the first class is informed that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility, the Magistrate if in his opinion there is sufficient ground for proceeding may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties, for keeping the peace for such period not exceeding [three years] as the Magistrate thinks fit to fix.
(2) Proceedings shall not be taken under this section unless either the person Informed against or the place where the breach of the peace or disturbance is apprehended, is within the local limits of such Magistrate’s jurisdiction, and no proceedings shall be taken before any Magistrate other than a District Magistrate, unless both the persons informed against and the place where the breach of the peace or disturbance is apprehended, are within the local limits of the Magistrate’s jurisdiction.
(3) Procedure of Magistrate not empowered to act under sub-section (1). When any Magistrate not empowered to proceed under sub-section (1) has reason to believe that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility, and that such breach of the peace or disturbance cannot be prevented otherwise than by detaining such person in custody, such Magistrate may, after recording his reason, issue a warrant for his arrest (if he is not already in custody or before the Court), and may send him before a Magistrate empowered to deal with the case, together with a copy of his reasons.
(4) A Magistrate before whom a person is sent under sub-section (3) may in his discretion detain such person in custody pending further action by himself under this Chapter.
108. Security for good behavior from persons disseminating seditious matter. Whenever a District Magistrate [or a Sub-divisional Magistrate or an Executive Magistrate] specially empowered by the Provincial Government in this behalf, has information that there is within the limits of his jurisdiction any person who, within or without such limits either orally or in writing or in any other manner intentionally disseminates or attempts to disseminate, or in anywise abets the dissemination of:
(a) any seditious matter, that is to say, any matter the publication of which is punishable under section 123A or section 124A of the Pakistan Penal Code; or
(b) any matter the publication of which is punishable under section 153A of the Pakistan Penal Code; or
(c) any matter concerning a Judge which amounts to criminal intimidation or defamation under the Pakistan Penal Code. Such Magistrate, if in his opinion there is sufficient ground for proceeding may (in matter hereinafter provided) require such person to show cause why he should not be ordered to execute a bond; with or without sureties, for his good behavior for period, not exceeding one year, as the Magistrate thinks fit to fix. No proceedings shall be taken under this section against the editor, proprietor, or publisher of any publication registered under, [and edited, printed and published] in conformity with the [provisions of the West Pakistan Press and Publications Ordinance, 1963 or any other law relating to press and publications for the time being in force] with reference to any matters contained in such publication except by the order or under the authority of a Provincial Government or some officer empowered by the Provincial Government in this behalf.
109. Security for good behavior from vagrants and suspected persons. Whenever [a District Magistrate or Sub-Divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government in this behalf] receives information:
(a) that any person is taking precautions to conceal his presence within the local limits of such Magistrate’s jurisdiction, and that there is reason to believe that such person is taking such precautions with a view to committing any offence, or
(b) that there is within such limits a person who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself. Such Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behavior for such period, not exceeding 2(three years], as the Magistrate thinks fit to fix.
110. Security for good behavior from habitual offenders. Whenever a District Magistrate, or Sub-divisional Magistrate or a 3[Executive Magistrate] specially empowered in this behalf by the Provincial Government receives information that any person within the local limits of his jurisdiction;
(a) is by habit a robber, house-breaker, thief, or forger or
(b) is by habit a receiver of stolen property knowing the same to have been stolen, or
(c) habitually protects or harbors thieves or aids in the concealment or disposal of stolen property, or
(d) habitually commits or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Pakistan Penal Code, or under section 489A, section 489B, section 489C or section 489D of that Code, or
(e) habitually commits, or attempts to commit, or abets the commission of, offences involving a breach of the peace, or
(f) is so desperate and dangerous as to render his being at large without security hazardous to the community. Such Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behavior for such period, not exceeding three years, as the Magistrate thinks fit to fix.
111. [Proviso as to European vagrants] Rep. by the Criminal Law Amendment Act, 1923 (XIl of 1023) S. 8.
112. Order to be made. When a Magistrate acting under section 107, section 108 section 109 or section 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.
113. Procedure in respect of person present in Court. If the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.
114. Summons or warrant in case of person not so present. If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to bring him before the Court;
Provided that whenever it appears to such Magistrate, upon the report of a police-officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.
115. Copy of order under section 112 to accompany summons or warrant. Every summons of warrant issued under section 114 shall be accompanied by a copy of the order made under section 112, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under the same.
116. Power to dispense with personal attendance. The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace, and permit him to appear by a pleader.
117. Inquiry as to truth of information. (1) When an order under section 112 has been read or explained under section 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with. or in execution of a summons or warrant, issued under section 114. the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.
(2) Such Inquiry shall be made, as nearly as may be practicable, in the manner prescribed in Chapter XX for conducting trials and recording evidence, except that no charge need be framed.]
(3) Pending the completion of the inquiry under sub-section (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may for reasons to be recorded in writing, direct the person in respect of whom the order under section 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behavior until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded. Provided that:
(a) no person against whom proceedings are not being taken under section 108, section 109, or section 110, shall be directed to execute a bond for maintaining good behavior, and
(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 112.
(4) For the purpose of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise.
(5) Where two or more persons have been associated together in the matter under inquiry they may be dealt with in the same or separate inquiries as the Magistrate shall think just.
118. Order to give security. (1) If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behavior, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or with sureties, the Magistrate shall make an order accordingly; Provided:
Firstly, that no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 112:
Secondly, that the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive:
Thirdly, that when the person in respect of whom the inquiry is made is a minor, the bod shall be executed only by his sureties.
119. Discharge of person informed against. If, on an inquiry under section 117, its is not proved that it is necessary for keeping the peace or maintaining good behavior, as the case may be, thus the person in respect of whom the inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if a such person is in custody only for the purposes of the inquiry shall release him, or, if such person is not in custody, shall discharge him.
C. Proceedings in all cases subsequent to order to furnish Security
120. Commencement of period for which security is required. (1) If any person, in respect of whom an order requiring security is made under section 106 or section 118, is, at the time such order is made, sentenced to, or undergoing a sentence of imprisonment the period for which such security is required shall commence on the expiration of such sentence.
(2) In other case such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date.
121. Contents of bond. The bond to be executed by any such person shall bind him to keep the peace or to be of good behavior, as the case may be, and in the later case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond.
122. Power to reject sureties. (1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this Chapter on the ground that such surety is an unfit person for the purposes of the bond: Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety or cause such inquiry to be held , and a report to be made thereon by a Magistrate subordinate to him.
(2) Such Magistrate shall, before holding inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall in making the inquiry record the substance of the evidence adduced before him.
(3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before a Magistrate deputed under sub-section (1), and the report of such Magistrate (if any) that the surety is an unfit person for the purposes of the bond, he shall make an order refusing to accept or rejecting, as the case may be, such surety and recording his reasons for so doing.
Provided that, before making an order rejecting any surety who has previously been accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him,
123. Imprisonment in default of security. (1) If any person ordered to give security under section 106 or section 118 doe’s not give such security on or before the date on which, the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned be committed to prison, or if he is already in prison be detained in prison until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it.
(2) Proceedings when to be laid before High Court or Court of Sessions. When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge; [****] and the proceedings shall be laid, as soon as conveniently may be, before [such Judge.]
(3) The Sessions Judge, after examining such proceedings and requiring from the Magistrate any further information or evidence which he thinks necessary, may pass such order on the cases as he thinks fit:
Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years.
(3-A) If security has been required in the course of the same proceedings from two or more persons in respect of anyone of whom the proceedings are referred to the Sessions Judge under sub-section (2), such reference, shall also include the case of any other of such persons who has been ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event, apply to the case of such other person also, except that the period (if any) for which he may be imprisoned shall not exceed the period for which he was ordered to give security.
(3-B) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (3A) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings.
(4) If the security is tendered to the officer incharge of the jail, he shall forthwith refer the matter to the Court or Magistrate who made the order, and shall await the orders of such Court or Magistrate.
(5) Kind of imprisonment. Imprisonment for failure to give security for keeping the peace shall be simple.
(6) Imprisonment for failure to give security for good behavior shall, where the proceedings have been taken under section 108 be simple and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the Court or Magistrate in each case directs.
124. Power to release person imprisoned for failing to give security. (1) Whenever the District Magistrate is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged.
(2) Whenever any person has been imprisoned for failing to give security under this Chapter, the District Magistrate may (unless the order has been made by some Court superior to his own) make an order reducing the amount of the security or the number of sureties or the time for which security has been required.
(3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts.
Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired.
(4) The Provincial Government may prescribe the conditions upon which a conditional discharge may be made.
(5) If any condition upon which any such person has been discharged is in the opinion of the District Magistrate by whom the order of discharge was made or of his successor not fulfilled, he may cancel the same.
(6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police-officer without warrant, and shall thereupon be produced before the District Magistrate. Unless such person then gives security in accordance with the terms of the original order for the unexpired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), the District Magistrate may remand such person to prison to undergo such unexpired portion. A person remanded to prison under this sub-section shall, subject to the provisions of section 122, be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the Court or Magistrate by whom such order was made or to its or his successor.
125. Power of District Magistrate to cancel any bond for keeping the peace or good behavior. The District Magistrate may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behavior executed under this Chapter by order of any Court in his district not superior to his Court.
126. Discharge of sureties. (1) Any surety for the peaceable conduct or good behavior of another person may at any time apply to a District Magistrate [or Sub-Divisional Magistrate] to cancel any bond executed under this Chapter within the local limits of his jurisdiction.
(2) On such application being made, the Magistrate shall issue his summons or warrant, as he thinks fit, requiring the person for whom such surety is bound to appear or to be brought; before him.
126-A. Surety for unexpired period of bound. When a person for whose appearance a warrant or summons has been issued under the proviso to sub-section
(3) of section 122, or under section 126, sub-section (2), appears or if brought before him, the Magistrate shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond fresh security of the same description as the original security. Every such order shall, for the purposes of sections 121,122,123 and 124, be deemed to be an order made under section 106 or section 118, as the case may be.
CHAPTER IX –
UNLAWFUL ASSEMBLIES [AND MAINTENANCE OF PUBLIC PEACE AND SECURITY
127. Assembly to disperse on command of magistrate or police officer. (l) Any [Executive Magistrate] or officer incharge of a police-station may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.
(2) [Omitted by A.O., 1949]
128. Use of civil force to disperse. if, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any io[Executive Magistrate] or officer incharge of a police-station, may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer, soldier, sailor or airman in the armed forces of Pakistan ….. and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.
129. Use of military force. If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the [Executive Magistrate] of the highest rank who is present may cause it to be dispersed by military force.
130. Duty of officer commanding troops required by magistrate to disperse assembly. (1) When a Magistrate determines to disperse any such assembly by the armed forces, ….. he may require any officer thereof in command of any group of persons belonging to the armed forces to disperse such assembly with the help of the armed forces under his command and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.
131. Power to commissioned military officers to disperse assembly. When the public security is manifestly endangered by such assembly, and when no [Executive Magistrate] can be communicated with, any commissioned officer of the Pakistan Army may disperse such assembly by military force, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law; but if, while he is acting under this section it becomes practicable for him to communicate with [an Executive Magistrate], he shall do so, and shall thenceforward obey the instructions of the Magistrate as to whether he shall or shall not continue such action.
[131-A. Power to use military force for public security and maintenance of law and order. (1) If the Provincial Government is satisfied that, for the public security, protection of life and property, public peace and the maintenance of law and order, it is necessary to secure the assistance of the armed forces, the Provincial Government may require, with the prior approval of the Federal Government, or the Federal Government, on the request of the Provincial Government, direct, any officer of the armed forces to render such assistance with the help of the armed forces under his command, and such assistance shall include the exercise of powers specified in sections 46 to 49, 53. 54, 55(a) and (c), 58, 63 to 67,100,102,103 and 156: Provided that such powers shall not include the powers of a Magistrate.
(2) Every such officer shall obey such requisition or direction, as the case may be, and in doing so may use such force as the circumstances may require.
(3) In rendering assistance relating to exercise of powers specified in subsection (1), every officer shall, as far as may be, follow the restrictions and conditions laid down in the Code.’]
132. Protection against prosecution for acts done under this Chapter. No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the Provincial Government; and:
(a) no Magistrate or police officer acting under this Chapter in good faith.
(b) no officer acting under section 131 in good faith.
(c) no person doing any act in good faith, in compliance with a requisition under section 128 or section 130 [or S.131-A], and
(d) no inferior officer, or soldier, sailor or airman in the armed forces ….. doing any act in obedience to any order which he was bound to obey. shall be deemed to have thereby committed an offence: Provided that no such prosecution shall be instituted in any Criminal Court against any officer or soldier, sailor or airman in the armed forces except with the sanction of the Central Government. Scope-Section 132, Criminal P.C. is a protection against prosecution and has nothing to do with ingredients of any offence. In order to obtain benefit of S. 132 the accused has to prove that the acts complained of were done under circumstances mentioned in the section, He need not prove that he committed no offence. In other words he must place before the Judge materials and circumstances justifying an inference that there was an unlawful assembly and the acts complained of were purported to have been done while dispersing that assembly. AIR 1956 S.C. 44
132-A. Definitions. In this Chapter:-
(a) the expression ‘armed forces’ means the military, naval and air forces, operating as land forces and includes the force constituted under the Federal Security Force Act (XL of 1973), and any other armed forces of Pakistan so operating.
(aa) the expression ‘civil armed forces’ means the Pakistan Rangers, Frontier Corps, Frontier Constabulary, Baluchistan Constabulary, Pakistan Coast Guards or any other force as the Federal Government may notify.’
(b) ‘officer’, in relation to the armed forces, means a person Commissioned, gazette or in pay as an officer of the armed forces and includes a junior commissioned officer a warrant officer, a petty officer and a non-commissioned officer; and
(c) ‘soldier’ includes a member of the force constituted under the Act referred to in clause (b).
CHAPTER X –
PUBLIC NUISANCES
133. Conditional order for removal of nuisance. (1) Whenever a District Magistrate, a Sub-Divisional Magistrate or 2o[an Executive Magistrate] considers, on receiving a police report or other information and on taking such evidence (if any) as the thinks fit. that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public or from any public place, or that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated, or that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion, should be prevented or stopped, or that any building, tent or structure, or any tree is in such a condition that it is likely to fail and thereby cause injury to persons living or carrying on business in the neighborhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary, or that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public, or that any dangerous animal should be destroyed, confined or otherwise disposed of, such magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed In the order. or remove such obstruction or nuisance; or to desist from carrying on, or to remove or regulate the keeping thereof in such manner as may be directed; or
to remove such goods, or merchandise, or to regulate the keeping thereof in such manner as may be directed; or to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure; or to remove or support such tree; or to alter the disposal of such substance; or to fence such tank, well or excavation, as the case may be; or to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other 21 (Executive Magistrate], at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation. A ‘public place’ Includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
134. Service or notification of order. (1) The order shall, if practicable, be served on the person against whom it is made, in manner herein provided for service of a summons.
(2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the Provincial Government by rule direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.
135. Person to whom order is addressed to obey or show cause or claim jury. The person against whom such order is made shall;
(a) perform, within the time and in the manner specified in the order the act directed thereby; or
(b) appear in accordance with such order and either show cause against the same or apply to the Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper.
136. Consequence of his failing to do so. If such person does not perform such act or appear and show cause or apply for the appointment of a jury as required by section 135, he shall be liable to the penalty prescribed in that behalf in section 188 of the Pakistan Penal Code, and the order shall be made absolute.
137. Procedure where he appears to show cause. (1) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter 22[in the manner provided in Chapter XX].
(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case.
(3) If the Magistrate is not so satisfied, the order shall be made absolute.
138. Procedure where he claims jury. (1) On receiving an application under section 135 to appoint a jury, the Magistrate shall:
(a) forthwith appoint a jury consisting of an uneven number of persons not less than five, of whom the foreman and one half of the remaining members shall be nominated by such Magistrate, and the other members by the applicant.
(b) summon such foreman and members to attend at such place and time as the Magistrate thinks fit; and
(c) fix a time within which they are to return their verdict.
(2) The time so fixed may, for good cause shown, be extended by the Magistrate.
139. Procedure where jury finds Magistrate’s order to be reasonable. (1) If the jury or a majority of the jurors find that the order of the Magistrate is reasonable and proper as originally made, or subject to a modification which the Magistrate accepts, the Magistrate shall make the order absolute, subject to such modification (if any).
(2) In other cases no further proceedings shall be taken under this Chapter.
139-A. Procedure where existence of public right is denied. (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so the Magistrate shall, before proceeding under section 137 or section 138, inquire into the matter.
(2) If in such inquiry Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 137 or section 138, as the case may require.
(3) A person who has, on being questioned by the Magistrate under sub-section (1) failed to deny the existence of a public right of the nature therein referred to, or who having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial, nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under section 138.
140. Procedure on order being made absolute. (1) When an order has been made absolute under section 136, section 137 or section 139, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Pakistan Penal Code.
(2) Consequences of disobedience to order. If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without the local limits of such Magistrate’s jurisdiction. If such other property is without such limits, the order shall authorize its attachment and sale when endorsed by the Magistrate within the local limits of whose jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith under this section.
141. Procedure on failure to appoint jury or omission to return verdict. If the applicant, by neglect or otherwise, prevents the appointment of the jury, or if from any cause the jury appointed do not return their verdict within the time fixed or within such further time as the Magistrate may In his discretion allow, the Magistrate may pass such order as he thick fit, and such order shall be executed in the manner provided by section 140.
142. Injunctions pending inquiry. (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may, whether a jury is to be, or has been, appointed or not, issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.
(2) In default of such person forthwith obeying such injunctions, the Magistrate may himself use, or cause to be used, such means as he thick fit to obviate such danger to prevent such injury.
(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.
143. Magistrate may prohibit repetition or continuance of public nuisance. A District Magistrate or Sub-divisional Magistrate [or any other Executive Magistrate] empowered by the Provincial Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Pakistan Penal Code or any special or local law.
CHAPTER XI –
TEMPORARY ORDERS IN URGENT CASES OF NUISANCE OR APPREHENDED DANGER
144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger. in cases where, in the opinion of a District Magistrate, Sub-Divisional Magistrate, (or of any other Executive Magistrate] specially empowered by the Provincial Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction Is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.
(2) An order under this section may. in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, exparte.
(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
(4) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or by his predecessor in office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs.
CHAPTER XII –
DISPUTES AS TO IMMOVABLE PROPERTY
145. Procedure where dispute concerning land, etc., is likely to cause breach of peace. (1) Whenever a District Magistrate [or Sub-Divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government in this behalf] is satisfied from a police-report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section the expression ‘land or water’ includes buildings markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) Inquiry as to possession. The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) Party in possession to retain possession until legally evicted. If the Magistrate decides that one of the parties was or should under the first proviso to sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.
146. Power to attach subject of dispute. (1) If the Magistrate decides that none of the parties was then In such possession, or Is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach It until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof. Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court appoint a receiver thereof, who, subject to the control of the Magistrate, shall have ail the powers of a receiver appointed under the [Code of Civil Procedure, 1908]: Provided that in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged.
147. Disputes concerning rights of use of immovable property, etc. (1) Whenever any District Magistrate 27[or Sub-Divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government in this behalf] is satisfied, from a police-officer or other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water as explained in section 145. sub-section (2) (whether such rights be claimed as an easement or otherwise), within the local limits of his jurisdiction, he may make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court In person or by pleader within a time to be fixed by such Magistrate and to put in written statement of their respective claims and shall thereafter inquire into the matter in the manner provided in section 145, and the provisions of that section shall, as for as may be applicable in the case of such inquiry.
(2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right: Provided that no such order shall be made where the right is exercisable at all times of the years, unless such right has been exercised within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution.
(3) If it appears to such Magistrate that such right does not exist, he may make an order prohibiting any exercise of the alleged right.
(4) An order under this section shall be subject to any subsequent decision of a Civil Court of competent jurisdiction.
148. Local inquiry. (1) Whenever a local inquiry is necessary for the purpose of this Chapter, any District Magistrate or Sub-Divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.
(2) The report of the person so deputed may be read as evidence in the case.
Order as to costs.
(3) When any costs have been incurred by any party to a proceeding under this Chapter the Magistrate passing a decision under section 145, section 146 or section 147 may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion. Such costs may Include any expenses incurred in respect of witnesses, and of pleaders’ fees, which the Court may consider reasonable.
CHAPTER XIII –
PREVENTIVE ACTION OF THE POLICE
149. Police to prevent cognizable offences. Every police-officer may interpose for the purpose of preventing and shall, to the best of his ability prevent, the commission of any cognizable offence.
150. information of design to commit such offences. Every police-officer receiving information of a design to commit any cognizable offence, shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.
151. Arrest to prevent such offences. A police-officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
152. Prevention of injury to public property. A police-officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation.
153. Inspection of weights and measures. (1) Any officer 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.
PART V –
INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE
CHAPTER XIV
154. Information in cognizable cases. Every information relating to the commission of a cognizable offence If given orally to an officer incharge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer In such form as the Provincial Government may prescribe in this behalf.
155. Information in non-cognizable cases. (1) When information is given to an officer incharge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the [Magistrate].
(2) Investigation into non-cognizable cases. No police-officer shall investigate a non-cognizable case without the order of a Magistrate of first or second class having power to try such case [or send the same for trial to the Court of Session].
(3) Any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer incharge of a police station may exercise in a cognizable case.
156. Investigation into cognizable case. (1) Any officer incharge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an Investigation as above mentioned.
[(4) Notwithstanding anything contained in sub-sections (1) (2) or (3), no police-officer shall investigate an offence under section 497 or section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or, in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed.]
157. Procedure where cognizable offence suspected. (1) If, from information received or otherwise an officer incharge of a police-station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the sport, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender:
Provided as follows:
(a) Where local Investigation dispensed with. When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer Incharge of a police-station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) Where police officer incharge sees no sufficient ground for investigation, if it appears to the officer Incharge of a police-station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1). the officer incharge of the police-station shall state in his said report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b). such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Provincial Government, the fact that he will not investigate the case or cause it to be Investigated.
158. Report* under section 157 how submitted. (1) Every report sent to a Magistrate under section 157 shall, if the Provincial Government so directs, be submitted through such superior officer of police as the Provincial Government, by general or special order appoints in that behalf.
(2) Such superior officer may give such instructions to the officer incharge of the police-station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.
159. Power to hold investigation of preliminary inquiry. Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code.
160. Police-officer’s power to require attendance of witnesses. Any police-officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required.
161. Examination of witnesses by police. (1) Any police-officer making an investigation under this Chapter or any police-officer not below such rank as the Provincial Government may. by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police-officer may reduce Into writing any statement made to him in the course of an examination, under this section, and if he does so he shall make a separate record of the statement, of each such person whose statement he records.
162. Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether In a police-diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by ‘section 145 of the Evidence Act. 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
Provided, further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in public interests, it shall record such opinion (but not the reasons therefore) and shall exclude such part from the copy of the statement furnished to the accused.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1). of the Evidence Act, 1872 [or to affect the provisions of section 27 of that Act].
163. No inducement to be offered. (1) No police-officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in the Evidence Act, 1872, section 24.
(2) But no police-officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will.
164. Power to record statements and confessions. (1) Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a police-officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.
[(1A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement.]
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and statements of confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, questioning the person making, it, he has reasons to believe that it was made voluntarily: and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect: ‘I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and. I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed} A.B., Magistrate
Explanation. It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case.
165. Search by police-officer. (1) Whenever an officer incharge of a police-station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found In any place within the limits of the police-station of which he is Incharge, or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station.
[Provided that no such officer shall search, or cause search to be made, for anything which is In the custody of any bank or banker as defined in the Bankers Books Evidence Act, 1891 (XVIII of 1891), and relates or might disclose any information which relates, to the bank account of any person except:-
(a) for the purpose of investigating an offence under sections 403, 406 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and
(b) in other cases, with the prior permission in writing of the High Court.]
(2) A police-officer proceeding under sub-section (1) shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer sub-ordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing specifying the place to be searched, and, so far as possible, the thing for which search is to be made: and such subordinate officer may thereupon search for such things in such place.
(4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 102 and section 103 shall, so far as may be, apply to a search made under this section.
(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate:
Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.
Punjab Amendment. In section 165, for proviso to sub-section (1), the following proviso, shall be substituted namely: [‘Provided that no such officer shall search, or cause a search to be made, for anything which is in the custody of a bank or a banker as defined in the Bankers’ Books Evidence Act 1891 (XVIII of 1891) and relates, or might disclose any Information which relates, to the bank account of any person except with the prior permission in writing of the High Court or the Sessions Judge within whose jurisdiction such bank or banker, as the case may be, is situated or carries on business.’]
166. When officer incharge of police-station may require another to issue search warrant. (1) An officer incharge of a police-station or a police officer not being below the rank of sub-inspector making an investigation may require an officer incharge of another police-station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer incharge of another police-station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer incharge of a police-station or a police-officer making an investigation under this Chapter to search, or cause to be searched, any place in the limits of another police-station, in accordance with the provisions of section 165, as if such place were within the limits of his own station.
(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer incharge of the police-station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 103 and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred in section 165, sub-sections (1) and (3).
(5) The owner or occupier of the place searched shall, on application, be furnished with a copy of any record sent to the Magistrate under sub-section (4):
Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.
167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-tour hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer incharge of the police-station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the [nearest Magistrate] a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
[Explanation:– For this purpose of this section, in the cases triable by the Executive magistrates, the expression ‘nearest Magistrate’ means the Executive Magistrate and in all other cases, the Judicial Magistrate.]
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or [send] it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorize detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
[(4) The Magistrate giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge.]
[(5) Notwithstanding anything contained in sections 60 and 61 or hereinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except in the cases involving Qatl or dacoity supported by reasons to be recorded in writing, authorize the detention of the accused in police custody, and the police officer making in investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of jail and a female police officer.
(6) The officer incharge of the prison shall make appropriate arrangements for the admission of the investigating police officer into the prison for the purpose of interrogating the accused.
(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the officer incharge of the police station or the police officer making investigation not below the rank of Sub-Inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female police officer appointed by the Magistrate:
Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise.’]
168. Report of investigation by subordinate police-officer. When any subordinate police-officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer incharge of police-station.
169. Release of accused when evidence deficient. If, upon an investigation under this Chapter, it appears to the officer incharge of the police-station, or to the police-officer making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or 11 [send] him for trial.
170. Case to be sent to Magistrate when evidence is sufficient. (1) If, upon an investigation under this Chapter, it appears to the officer incharge of the police-station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the accused or [send] him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer incharge of police-station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
[(3) If the Court of District Magistrate or Sub-divisional Magistrate Is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the cases for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.]
(4) x x x x x x x
(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
171. Complainants and witnesses not to be required to accompany police-officer. No complainant or witness on his way to the Court of the Magistrate shall be required to accompany a police-officer. Complainants and witnesses not to be subject to restraint, or shall be subjected to , unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond: Recusant complainant or witnesses may be forwarded in custody. Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in section 170, the officer incharge of the police-station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed.
172. Diary of proceedings in investigation. (1) Every police-officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court, may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but if they are used by the police-officer who made them, to refresh his memory, if the Court uses them for the purpose of contradicting such police-officer the provisions of the Evidence Act, 1872 section 161 section 145 as the case may be, shall apply.
173. Report of police-officer. (1) Every investigation under this Chapter shall be completed, without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall, [through the public prosecutor]. is
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial:
‘(5) Where the officer incharge of a police-station forwards a report under sub-section (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other court on the date fixed for trial’.
Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
174. Police to inquire on suicide, etc. (1) The officer incharge of a police-station or some other police-officer specially empowered by the Provincial Government in that behalf, on receiving information that a person:
(a) has committed suicide, or
(b) has been killed by another, or by an animal, or by machinery, or by an accident, or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable Inhabitants of the neighborhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds fractures, bruises and other marks of Injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate.
(3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the Provincial Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) [Omitted by A.O. 1949].
(5) The following Magistrates are empowered to hold inquests, namely, any District Magistrate, Sub-divisional Magistrate [or any other Executive Magistrate] especially empowered in this behalf by the Provincial Government or the District Magistrate.
175. Power to summon person. (1) A Police-officer proceeding under section 174, may, by order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and any other person who appears to be acquainted with the facts of the case. Every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a criminal charge, or to a penalty or forfeiture.
(2) If the facts do not disclose a cognizable offence to which section 170 applies, such persons shall not be required by the police-officer to attend a Magistrate’s Court.
176. Inquiry by Magistrate into cause of death. (1) When any person dies when in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and, in any other case mentioned in section 174, clauses (a), (b) and (c) of sub-section (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case.
(2) Power to disinter corpses. Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.
PART VI –
PROCEEDINGS IN PROSECUTIONS
CHAPTER XV –
OF THE JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS
A. Place of Inquiry or Trial
177. Ordinary place of inquiry and trial. Every offence shall ordinary be inquired in and tried by a Court within the local limits of whose jurisdiction it was committed.
178. Power to order cases to be tried in different sessions divisions. Notwithstanding anything contained in section 177, the Provincial Government may direct that any cases or class of cases [in any district sent for trial to a Court of sessions] may be tried in any sessions division:
[Provided that such direction is not repugnant to any direction previously issued by the High Court under section 526 of theCode or any other law for the time being in force]
179. Accused triable in district where act is done or where consequence ensues. When a person is accused of the commission of any offence by reason of anything which had been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the limits of whose jurisdiction any such thing has been done or any such consequence has ensued.
Illustrations
(a) A is wounded within the local limits of the jurisdiction of Court X, and dies within the local limits of the jurisdiction of Court Z, The offence of the culpable homicide of A may be inquired into or tried by X or Z.
(b) A is wounded within the local limits of the jurisdiction of Court X, and is, during ten days within the local limits of the jurisdiction of Court Y, and during ten days more within the local limits of the jurisdiction of Court Z unable in the local limits of the jurisdiction of either Court Y, or court Z, to follow his ordinary pursuits. The offence of causing grievous hurt to A may be inquired into or tried by X, Y or Z.
(c) A is put in fear of injury within local limits of jurisdiction of Court X, and is thereby induced, within the local limits of the jurisdiction of Court. Y, to deliver property to the person who put him in fear. The offence of extortion committed on A may be inquired into or tried either by X or Y.
(d) A is wounded in the State of Junagadh, and dies of his wounds in Karachi. The offence of causing A’s death may be inquired into and tried in Karachi.
180. Place of trial where act is offence by reason of relation to other offence. When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be Inquired into or tried by a Court within the local limits of whose jurisdiction either act was done.
Illustrations
(a) A charge of abetment may be inquired into or tried either by the Court within the local limits of whose jurisdiction the abetment was committed, or by the Court within the local limits of whose jurisdiction the offence abetted was committed.
(b) A charge of receiving or retaining stolen goods may be inquired into or tried either by the Court within the local limits of whose jurisdiction the goods were at any time dishonestly received or retained.
(c) A charge of wrongfully concealing a person known to have been kidnapped may be inquired into or tried by the Court within the local limits of whose jurisdiction the wrongful concealing, or by the Court within the local limits of whose jurisdiction the kidnapping, took place.
181. Being a thug or belonging to a gang of dacoits, escape from custody, etc. (1) The offence of being a thug, of being a thug and committing murder, of dacoity, of dacoity with murder, of having belonged to gang of dacoits, or of having escaped from custody, may be inquired into or tried by a Court within the local limits of whose jurisdiction the person charged is.
(2) Criminal misappropriation and criminal breach of trust. The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused person, or the offence was committed.
(3) Theft. The offence of theft, or any offence which includes theft or the possession of stolen property, may be inquired into or tried by a Court within the local limits of whose jurisdiction such offence was committed or the property stolen was possessed by thief or by any person who received or retained the same knowing or having reason to believe it to be stolen.
(4) Kidnapping and abduction. The offence of kidnapping or abduction may be inquired into or tried by a Court within the local limits of whose jurisdiction the person kidnapped or abducted was kidnapped or abducted or was conveyed or concealed or detained.
182. Place of inquiry or trial where scene of offence is uncertain or not in one district only or where offence is continuing or consists of several acts. When it is uncertain in which or several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than, one, or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
183. Offence committed on a journey. An offence committed whilst the offender in the course of performing a journey or voyage may be inquired into or tried by a Court through or into the local limits of whose jurisdiction the offender, or the person against whom or the thing in respect of which, the offence was committed, passed in the course of that journey or voyage.
184. Offences against Railway, Telegraph, Post Office and Arms Acts. [Rep. by the Federal Laws (Revision and Declaration) Act, 1951 (XXVI) of 1951), S. 3 and Second Schedule.)
185. High Court to decide, in case of doubt, district where inquiry or trial shall take place. (1) Whenever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court.
(2) Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct the trial of such offender to be held in any Court subordinate to it, and if it so decides all other proceedings against such person in respect of such offence shall be discontinued. If such High court, upon the matter having been brought to Its notice, does not so decide any other High Court, within the local limits of whose appellate criminal jurisdiction such proceedings are pending may give a like direction, and upon its so doing all other such proceedings shall be discontinued.
186. Power to issue summons or warrant for offence committed beyond local jurisdiction. (1) When a [District Magistrate, a Sub-Divisional Magistrate, or, if he is specially empowered in this behalf by the Provincial Government, a Magistrate of the first class], sees reason to believe that any person within the local limits of his jurisdiction has committed without such limits (whether within or without Pakistan) an offence which cannot, under the provisions of section 177 to 184 (both inclusive), or any other law for the time being in force be inquired into or tried within such local limits, but is under some law for the time being in force triable in Pakistan such Magistrate may inquire into the offence as if it had been committed within such local limits and compel such person in manner hereinbefore provided to appear before him, and send such person to Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is bailable, take a bond with or without sureties for his appearance before such Magistrate.
(2) When there are more Magistrates than one having such jurisdiction and Magistrate acting under the section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case, shall be reported for the orders of the High Court.
187. Procedure where warrant issued by subordinate Magistrate. (1) If the person has been arrested under a warrant issued under section 186 [the Magistrate issuing the warrant shall send the arrested person to the Sessions Judge] to whom he is subordinate, unless the Magistrate having jurisdiction to inquire into or try such offence issues his warrant for the arrest of such person, in which case the person arrested shall be delivered to the police-officer executing such warrant or shall be sent to the Magistrate by whom such warrant was issued,
(2) If the offence with which the person arrested is alleged or suspected to have committed is one which may be inquired into or tried by any Criminal Court in the same district other than that of the Magistrate acting under section 186, such Magistrate shall send such person to such Court.
188. Liability for offences committed outside Pakistan. When a citizen of Pakistan commits an offence at any place without and beyond the limits of Pakistan, or when a servant of the State (whether a citizen of Pakistan or not commits an offence in [a tribal area,] when any person commits an offence on any ship or aircraft registered in Pakistan wherever it may be, he may be dealt with in respect of such offence as if it had been committed at any place within Pakistan at which he may be found:
Political Agents to certify fitness of inquiry into charge. Provided that notwithstanding anything in any of the preceding sections of this Chapter no charge as to any such offence shall be inquired into in Pakistan unless the Political Agent, if there is one, for the territory in which the offence is alleged to have been committed, certifies that, in his opinion, the charge, ought to be inquired into in Pakistan; and, where there is no Political Agent, the sanction of Federal Government shall be required.
Provided, also that any proceedings taken against any person under this section which would be a bar to subsequent proceedings against such person for the same offence if such offence had been committed in Pakistan shall be a bar to further proceedings against him under the [Extradition Act, 1972,] in respect of the same offence in any territory beyond the limits of Pakistan.
189. Power to direct copies of depositions and exhibits to be received in evidence. Whenever any such offence as is referred to in section 188 is being inquired into or tried, the Provincial Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before the Political Agent or a judicial officer in or for the territory in which such office is alleged to have been committed shall be received as evidence by the Court holding such inquiry or trial in any case in which such Courts might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.
B. Conditions requisite for initiation of proceedings.
190. Cognizance of offences by Magistrates. (1) Except as hereinafter provided, [any District Magistrate or a Sub-Divisional Magistrate or any other Magistrate specially empowered in this behalf] by the Provincial Government on the recommendation of High Court may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police-officer;
(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion that such offence has been committed.
[(2) The Provincial Government may empower any Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Session for trial:
Provided that in case of Judicial Magistrate, the Provincial Government shall exercise this power on the recommendations of the High Court.]
[(3) A Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial.]
[191. Transfer on application of accused. When a Magistrate takes cognizance of an offence under subsection (1), clause (c) of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and, if the accused or any of the accused if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be [sent] to the [in the case of Judicial Magistrate to the Session Judge and in the case of Executive Magistrate to the District Magistrate] for transfer to another Magistrate.]
[192. Transfer of cases by Magistrate. (1) Any District Magistrate, or Sub-Divisional Magistrate may transfer any case of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him;
[Provided that if the offence is triable by a Judicial Magistrate the case shall be sent to the Court of Session for transfer to such Magistrate.]
[‘(2) Any District Magistrate may empower any Executive Magistrate subordinate to him, who has taken cognizance of any case, to transfer such case for inquiry or trial to any other Executive Magistrate in his district who is competent under this Code to try the accused; and such Magistrate may dispose of the case accordingly’; and
‘(3) A Sessions Judge may empower any Judicial Magistrate who has taken cognizance of any case, to transfer such case for trial to any other Judicial Magistrate in his district and such Magistrate may dispose of the case accordingly.’]
193. Cognizance of offences by Courts of Sessions. (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction [unless the case has been sent to it under section 190 sub-section (3).
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.
194. Cognizance of offences by High Court. (1) The High Court may take cognizance of any offence […..] in manner hereinafter provided. Nothing herein contained shall be deemed to affect the provisions of any Letters Patent or Order by which a High Court is constituted or continued, or any other provision of this Code. [*****]
195. Prosecution for contempt of lawful authority of public servants; Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence. (1) No Court shall take cognizance:
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.
(b) of any offence punishable under any of the following sections of the same Code namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or
(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding i.e. any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) In clause (b) and (c) of the sub-section (1), the term ‘Court’ includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the [Registration Act, 1908].
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decree no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate: Provided that:
(a) where appeals lie to more than one Court, the appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceedings in connection with which the offence is alleged to have been committed.
(4) The provisions of sub-section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offence, and attempts to commit them.
(5) Where a complaint has been made under sub-section (1), clause(a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and if it does so. it shall forward a copy or such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.
196. Prosecution for offences against the State. No Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Pakistan Penal Code (except section 127), or punishable under section 108A, or section 153A, or section 294A, or section 295A or section 505 of the same Code, unless upon complaint made by order of, or under authority from, the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments.
196-A. Prosecution for certain classes of criminal conspiracy. No Court shall take cognizance of the offence of criminalconspiracy punishable under section 120B of the Pakistan Penal Code.
(1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means or an offence to which the provisions of section 196 apply, unless upon complaint made by order or under authority from the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments, or
(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence, or a cognizable offence not punishable with death or [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, unless the Provincial Government, or a District Magistrate empowered in this behalf by the Provincial Governments, has by order in writing, consented to the initiation of the proceedings:
Provided that where the criminal conspiracy is one to which the provisions of sub-section (4) of section 195 apply no such consent shall be necessary.
196-B. Preliminary inquiry in certain cases. In the case of any offence in respect of which the provisions of section 196 or section 196A apply, a District Magistrate may, notwithstanding anything contained in those sections or in any other part of thisCode, order a preliminary investigation by a police-officer not being below the rank of Inspector, in which case such police-officer shall have the powers referred to in section 155, sub-section (3).
197. Prosecution of Judges and public servants. (1) When any person who is a Judge within the meaning of section 19 of the Pakistan Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Central Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction:
(a) in the case of a person employed in connection with the affairs of the Centre, of the President; and
(b) in the case of a person employed in connection with the affairs of a Province, of Governor of that Province.
(2) Power of President or Governor as to prosecution. The President or Governor, as the case may be, may determine the person by whom, the manner in which, the offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
198. Prosecution for breach of contract, defamation and offences against marriage. No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence:
Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf;
Provided further that where the husband aggrieved by an offence under section 494 of the said Code is serving in any of the Armed Forces of Pakistan under conditions which are certified by the Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of sub-section (1) of section 199B may, with the leave of the Court, make a complaint on his behalf.
N.W.F.P. Amendment. In Section 198 of the Code, omit the words ‘or under sections 493 to 496 (both inclusive) of the sameCode‘; and the second proviso to this section.
[198-A. Prosecution for defamation against public servants in respect of their conduct in the discharge of public functions. (1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Pakistan Penal Code (Act XLV of 1860) is alleged to have been committed against the President, the Prime Minister a Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister or any public servant employed in connection with the affairs of the Federation or of a Province, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
(2) Every such complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
(3) No complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous sanction.
(a) in the case of the President or the Prime Minister or a Governor, or any Secretary to the Government authorized by him in this behalf.
(b) in the case of a Federal Minister or Minister of State, Chief Minister or Provincial Minister, of any Secretary to the Government authorized in this behalf by the Government concerned.
(c) in the case of any public servant employed in connection with the affairs of the Federation or of a province, of the Government concerned.
(4) No Court of Sessions shall take cognizance of an offence under sub-section (1) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(5) When the Court of Session takes cognizance of an offence under sub-section
(1), then, notwithstanding anything contained in the Code, the Court of Sessions shall try the case without the aid of a jury or assessors and in trying the case shall follow the procedure prescribed for the trial by Magistrate of warrant cases instituted otherwise than on a police report.
(6) The provisions of this section shall be in addition to, and not in derogation of those of section 198].
199. Prosecution for adultery or enticing a married woman. [No Court shall take cognizance of an offence under section 497 or section 498 of the Pakistan Pena! Code, except:
(a) upon a report in writing made by a police-officer on the complaint of the husband of the woman, or in this absence, by some person who had care of such woman on his behalf at the time when such offence was committed; or
(b) upon a complaint made by the husband of the woman or, in his absence, made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed:]
Provided that where such husband is under the age of eighteen years or is an idiot or is from sickness or infirmity unable to make complaint, some other person may with the leave of the Court make a complaint on his behalf:
Provided further that where such husband is serving in any of the Armed Forces of Pakistan under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, and where for any reason no complaint has been made by a person having care of the woman as aforesaid, some other person authorized by the husband in accordance with the provisions of sub-section (1) of section 199B may, with the leave of the Court make a complaint on his behalf.
(N.W.F.P. Amendment-Delete Section 199].
199-A. Objection by lawful guardian to complaint by person other than person aggrieved. When in any case falling under section 198 or. section 199, the person on whose behalf the complaint is sought to be made is under the age of eighteen years or is a lunatic, and the person applying for leave has not been appointed or declared by competent authority to be the guardian of the person of the said minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, notice shall be given to such guardian and the Court shall, before granting the application, give him a reasonable opportunity of objecting to the granting thereof.
199-B. Form of authorization under second proviso to section 198 or 199. (1) The authorization of a husband given to another person to make a complaint on his behalf under the second proviso to section 198 or the second proviso to section 199 shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegation upon which the complaint is to be founded, shall be countersigned by the Officer referred to in the said provisos, and shall be accompanied by a certificate signed by the Officer, to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the
husband.
(2) Any document purporting to be such an authorization and complying with the provisions of sub-section (1), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine, and shall be received in evidence.
N.W.F.P. Amendment-[In section 199-A of the Code; omit the words ‘or section 199’ and delete section 199-B].
CHAPTER XVI –
OF COMPLAINTS TO MAGISTRATE
200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate:
Provided as follows:
(a) when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complaint before transferring the case under section 192 [or sending it to the Court of Sessions].
(aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complainant has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties:
(b) * * * * *
(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
201. Procedure by Magistrate not competent to take cognizance of the case. (1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that effect.
(2) If the complaint has not beep made in writing such Magistrate shall direct the complainant to the proper Court.
[202. Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3), or transferred to it under Section 191 or Section 192, may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by [any Justice of the Peace or by] a police-officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.
Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.
(2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3) If any inquiry or investigation under this section is made by a person not being a Magistrate [or Justice of the Peace] or a police-officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police-station, except that he shall not have power to arrest without warrant.
(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath.]
203. Dismissal of complaint. [The Court] before whom a complaint is made or to whom it has been transferred or [sent] may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.
CHAPTER XVII –
OF THE COMMENCEMENT OF PROCEEDING BEFORE [COURTS]
204. Issue of process. (1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which, according to the fourth column of the second schedule a summons should issue in the first instance, [it] shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, [it] may issue a warrant, or, if, [it] thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Court or (if [it] has not jurisdiction [itself]) some other Court having jurisdiction.
(2) Nothing in this section-shall be deemed to affect the provision of section 90.
(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the [Court] may dismiss the complaint.
205. Magistrate may dispense with personal attendance of accused. (1) Whenever a magistrate issue a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader.
(2) But the Magistrate inquiring or trying the case may, in his discretion, at any stage of the proceedings direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided.
CHAPTER XVIII –
OF INQUIRY INTO CASES TRIABLE BY THE COURT OF SESSION OR HIGH COURT
206-220. [Chapter XVIII consisting of sections 206-220 omitted by Law Reforms Ordinance, 1972. item 82. Enforced in the Province of Punjab w.e.f. 26.12.1975.]
CHAPTER XIX –
OF THE CHARGE FORM OF CHARGES
221. Charge to state offence. (1) Every charge under this Code shall state the offence with which the accused is charged.
(2) Specific name of offence; sufficient description. If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) How stated where offence has no specific name. If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he Is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) What implied In charge. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particulars case.
(6) Language of charge. The charge shall be written either in English or in the language of the Court.
(7) Previous conviction when to be set out. If the accused having been previously convicted of any offence, is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it any time before sentence is passed.
Illustrations
(a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of murder given in section 299 and 300 of the Pakistan Penal Code; that it did not fall within any of the general exceptions of the same Code; and that it did not fall within any of the five exceptions to sections 300 or that, if it did fall within Exception 1, one or other of the three provisos to that exception apply to it.
(b) A is charged, under section 326 of the Pakistan Penal Code, with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the Pakistan Penal Code, and that the general exceptions did not apply to it
(c) A is accused of murder cheating, theft, extortion, adultery or criminal intimidation or using a false property-mark. The charge may state that A committed murder, cheating, or theft, or extortion, or adultery or criminal intimidation, or that he used a false property-mark, without reference to the definitions of those crimes contained in the Pakistan Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the charge.
(d) A is charged, under section 184 of the Pakistan Penal Code, with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.
222. Particulars as to time, place and person. (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234;
Provided that the time included between the first and last of such dates shall not exceed one year.
223. When manner of committing offence must be stated. When the nature of the case is such that the particulars mentioned in section 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.
Illustrations
(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which theft was effected.
(b) A is accused of cheating B at a given time and place. The charge must set out the manner In which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place. The charge must set out the manner in which A obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save B from punishment. The charge must set out the disobedience charged and the law infringed.
224. Words in charge taken in sense of law under which offence is punishable. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.
225. Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
Illustrations
(a) A is charged under section 242 of the Pakistan Penal Code, with ‘having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit’, the word ‘fraudulently’ being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, call witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in the case a material error.
(d) A is charged with the murder of Khoda Bakhsh on the 21st January 1882. In fact the murdered person’s name was Haider Bakhsh, and the date of the murder was the 20th January 1882. A was never charged with any murder but one, and had heard the [trial], which referred exclusively to the case of Haider Bakhsh. The Court may infer from these facts that A was not misled and that the error in the charge was immaterial.
(e) A was charged with murdering Haider Bakhsh on the 21st January 1882. When charged for the murder of Haider Bakhsh, he was tried for the murder of Khoda Bakhsh. The witnesses present in his defence were witnesses in the case of Haider Bakhsh. The Court may infer from this that A was misled, and that the error was material.
226. [Omitted by Law Reforms Ordinance 1972, item 84].
227. Court may alter charge. (1) Any Court may later or add to any charge at any time before judgement is pronounced [……].
(2) Every such alteration or addition shall be read and explained to the accused.
228. When trial may proceed immediately after alteration. If the charge framed or alteration or addition made under [….} section 227 is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case. the Court may, in its discretion, after such charge or alteration has been framed or made, proceed with the trial as if the new or altered charge had been the original charge.
229. When new trial may be directed, or trial suspended. If the new or altered or added charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
230. Stay of proceedings if prosecution of offence in altered charge requires previous sanction. If the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained for a prosecution on the same facts as those on which the new or altered charge is founded.
231. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material.
232. Effect of material error. (1) If any Appellate Court, or the [Court of Session] in the exercise of revision or of its powers under Chapter XVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge by any error in the charge, It shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit.
(2) If the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
Illustration
A is convicted of an offence, under section 196 of the Pakistan Penal Code, upon a charge which omits to state that he knew the evidence, which he corruptly used or attempted to use as true or genuine, was false or fabricated. If the Court thinks it probable that A had such knowledge, and that he was misled in his defence by the omission from the charge; but, if it appears probable from the proceedings that A had no such knowledge, it shall quash the conviction.
233. Separate charges for distinct offences. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234.235, 236 and 239.
Illustration
A is accused of a theft on one occasion, and causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.
234. Three offences of same kind within one year may be charged together. (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, and number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local low:
Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the Pakistan Penal Code or of any special or local law shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
235. Trial for more than one offence. (1) If, in one series of facts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) Offence falling within two definitions. If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, Section 71.
Illustrations
To sub-section (1):
(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was, A may be charged with, and convicted of, offences under section 225 and 333 of the Pakistan Penal Code.
(b) A commits house-breaking by day with intent to commit adultery, and commits in the house so entered adultery with B’s wife. A may be separately charged with, and convicted of, offences under section 454 and 497 of the Pakistan Penal Code.
(c) A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with, and convicted of, offences under sections 498 and 497 of the Pakistan Penal Code.
(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several forgeries punishable under section 466 of the Pakistan Penal Code. A may be separately charged with, and convicted of, the possession of each seal under section 473 of the Pakistan Penal Code.
(e) With intent to cause injury to B, A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such proceeding: and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charges. A may be separately charged with, and convicted of, two offences under sections 211 of the Pakistan Penal Code.
(f) A, with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that there is no just or lawful ground for such charge. On the trial A gives false evidence against B, intending thereby to cause B to be convicted of a capital offence. A may be separately charged with, and convicted of. offences under sections 211 and 194 of the Pakistan PenalCode.
(g) A, with six others, commits the offences of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under section 147, 325 and 152 of the Pakistan Penal Code.
(h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged with, and convicted of, each of three offences under section 506 of the Pakistan Penal Code. The separate charges referred to in Illustrations (a) to (h) respectively may be tried at the same time: To sub-section (2):
(i) A wrongfully strikes B with a cane. A may be separately charged with, and convicted of, offences under section 352 and 323 of the Pakistan Penal Code.
(j) Several stolen sacks of corn are made over to A and B who know they are stolen property, for the purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain pit. A and B may be separately charged with, and convicted of offences under sections 411 and 414 of the Pakistan Penal Code.
(k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with, and convicted of, offences under sections 317 and 304 of the Pakistan PenalCode.
(I) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant, of an offence under section 167 of the Pakistan Penal Code. A may be separately charged with, and convicted of, offences under sections 471 read with 466 and 196 of the same Code. To sub-section (3):
(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged with, and convicted of, offences under sections 323, 392 and 394 of the Pakistan Penal Code.
236. When it is doubtful what offence has been committed. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
Illustrations
(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.
(b) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false.
237. When a person is charged with one offence, he can be convicted of another. (1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.
Illustration
A is charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence.
238. When offence proved included in offence charged. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(2-A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.]
(3) Nothing in this section shall be deemed to authorizes conviction of any offence referred to in section 198 or section 199 when no complaint has been made as required by that section.
Illustrations
(a) A is charged, under section 407 of the Pakistan Penal Code, with criminal breach of trust in respect of property entrusted to him as a carrier.
It appears that he did commit criminal breach of trust under section 406 in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under section 406.
(b) A is charged, under section 325 of the Pakistan Penal Code, with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.
239. What persons may be charged jointly. The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the courses of the same transaction;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence.
(c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction
(e) persons accused of an offence which includes theft, extortion or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence;
(f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and
(g) persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.
240. Withdrawal of remaining charges on conviction on one of several charges. When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry, into, or trial of such charge or charges. Such withdraw shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into or trial of the charge or charges so withdrawn.
CHAPTER XX –
OF THE TRIAL OF CASES BY MAGISTRATE
241. Procedure in trial of cases. The following procedure shall be observed by Magistrate in the trial of cases.
241-A. Supply of statements and documents to the accused. (1) In all cases instituted upon police report, except those tried summarily or punishable with fine or imprisonment not exceeding six months, copies of statements of ail witnesses recorded under sections 161 and 164 and of the inspection note recorded by an investigation officer on his first visit to the place of occurrence, shall be supplied free of cost to the accused not less than seven days before the commencement of the trial;
Provided that if any part of a statement recorded under section 161 is such that its disclosure to the accused would be inexpedient in the public interest such part of the statement shall be excluded from copy of the statement furnished to the accused.
(2) in ail eases instituted upon a complaint in writing, the complainant shall;
(a) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and
(b) within three days of the order of the Court under section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the compliant and any other document which it has filed with his complaint as the number of the accused;
Provided that the provisions of this sub-section shall not apply in any case in which the complaint has been made by a Court or by a public servant acting or purporting lo act in the discharge of his official duties.]
[242. Charge to be framed. 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 admits that he has committed the offence with which he is charged.]
243. Conviction on admission of truth of accusation. If the accused admits that he has committed the offence [with which he is charged] his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.
244. Procedure when no such admission is made. (1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
Provided that the Magistrate shall not be bound to hear any person as a complainant in any case in which the complaint has been made by a Court.
(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.]
(3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court:
[Provided that it shall not be necessary for the accused to deposit any such expenses in Court in case where he is charged with an offence punishable with imprisonment exceeding six months.]
[244-A. Statement made under section 164. The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of Evidence Act, 1872.]
245. Acquittal. (1) If the Magistrate upon taking the evidence referred to in section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks tit) examining the accused, finds the accused not guilty, he shall record an order of acquittal.
[245-A. Procedure in case of previous convictions. In a case where a previous conviction is charged under the provisions of section 221, subsection (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the accused under section 243, or under section 245, subsection (2), take evidence in respect of the alleged previous conviction, and, if he does so, shall record a finding thereon.]
246. [Omitted by Law Reforms Ordinance, XII of 1972, item 95].
247. Non-appearance of complainant. If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:
Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case:
[Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable.]
248. Withdrawal of complaint. If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.
249. Power to stop proceedings when no complainant. In any case instituted otherwise than upon complaint a Magistrate of the first class, or with the previous sanction of the [Sessions Judge, in the case of Judicial Magistrate and District Magistrate in the case of Executive Magistrate,] may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused.
[249-A. Power of Magistrate to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.]
FRIVOLOUS ACCUSATIONS IN [CASES TRIED BY MAGISTRATES].
250. False frivolous or vexatious accusations. (1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate, by whom the case is heard [….] acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may by his order of [….] acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or if such person is not present direct the issue of a summons to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious, may, for reasons to be recorded, direct that compensation to such amount not exceeding [twenty five thousand rupees] or if the Magistrate is a Magistrate of the third class not exceeding [two thousand and five hundred] rupees, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.
(2A) The compensation payable under sub-section (2) shall be recoverable as an arrear of land revenue.]
(2B) When any person is imprisoned under sub-section (2A), the provisions of section 68 and 69 of the Pakistan Penal Codeshall, so far as may be. apply.]
(2C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:
Provided that any amount paid to an accused person under this section shall be taken into account, in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(3) A complainant or informant who has been ordered under subsection (2) by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees may appeal form the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.
(4) When an order for payment of compensation to an accused person is made, in case which is subject to appeal under sub-section (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order.
[250-A. Special summons in case of petty offences.~(l) Any Magistrate of the first class specially empowered in this behalf by the Provincial Government taking cognizance of any offence punishable only with fine shall, except for reasons to be recorded in writing, issue summons to the accused requiring him either to appear before him on a specified date in person or by an advocate or, if he desires to plead guilty to the charge, without appearing before the Magistrate; to transmit to the before the specified date, by registered post or through a messenger, the said plea in writing and the amount of fine specified in the summons or, if he desires to appear by an advocate and to plead guilty to the charge, to authorize, in writing, such advocate to plead guilty to the charge, on his behalf and to pay the fine:
Provided that the amount of the fine specified in such summons shall not be less than twenty-five per cent nor more than fifty per cent of the maximum fine provided for such offence.
(2) Sub-section (1) shall not apply to an offence punishable under the Motor Vehicles Ordinance, 1965 (W.P. Ordinance XIX of 1965), or under any other law which provides (or the accused person being convicted in his absence on a plea of guilty.]
CHAPTER XXI –
OF THE TRIAL OF WARRANT-CASES BY MAGISTRATES
251-259. [Omitted by Law Reforms Ordinance, 1972, item 99].
CHAPTER XXII – OF SUMMARY TRIALS
260. Power to try summarily. (1) Notwithstanding anything contained in this Code:
(a) x x x x x x
(b) any Magistrate of the first class specially empowered in this behalf by the Provincial Government, and
(c) any Bench of Magistrate invested with the powers of a Magistrate of the first class and especially empowered in this behalf by the Provincial Government. may, if he or they think fit, try in a summary way all or any of the following offence:
(a) offences not punishable with death, transportation or imprisonment for term exceeding six months;
(b) offences relating to weights and measures under sections 264, 265 and 266 of the Pakistan Penal Code;
(c) hurt, under section 323 of the same Code;
(d) theft under sections 379, 380 or 381 of the same Code, where the value of the property stolen does not exceed [two thousand five hundred rupees]
(e) dishonest misappropriation of property under section 403 of the same Code, where the value of the property misappropriated does not exceed [two thousand five hundred rupees]
(f) receiving or retaining stolen property under section 411 of the same Code, where the value of such property does not exceed [two thousand five hundred rupees]
(g) assisting in the concealment or disposal of stolen property under S. 414 of the same code, where the value of such property does not exceed [two thousand and five hundred rupees]
(h) mischief, under section 427, of the same Code;
(i) house-trespass, under section 448, and offences under sections 451, 453, 454, 456 and 457 of the same Code.
(j) insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation, under section 506, of the same Code:
(jj) offence of personating at an election under section 171 F of the same Code;
(k) abetment of any of the forgoing offences;
(l) an attempt to commit any of the foregoing offences, when such attempt is an offence;
(m) offences under section 20 of the Cattle-trespass Act 1871:
[ x x x x x ]
(2) When in the course of a summary trial it appears to the Magistrate or Bench that the case is one which is of a character which renders it undesirable that ft should be tried summarily, the Magistrate or Bench shall recall any witnesses who may have been examined and proceed to-near the case in manner provided by this Code.
261. Power to invest Bench of Magistrates invested with less power. The Provincial Government may [on the recommendation of the High Court] confer on any Bench of Magistrate invested with the powers of a Magistrate of the second or third class power to try summarily all or any of the following offences:
(a) offences against the Pakistan Penal Code, sections 277, 278, 279, 285, 286, 289, 290, 292, 293, 294, 323, 330, 336,341, 352, 426. 447, and 504;
(b) offences against Municipal Acts, and the conservancy clauses of Police Acts which are punishable only with fine or with imprisonment for a term not exceeding one month with or without fine:
(c) abetment of any of the foregoing offences:
(d) an attempt to commit any of the foregoing offences, when such attempt is an offence.
262. Procedure [prescribed in Chapter XX] applicable. [(1) In trials under this Chapter, the procedure prescribed in Chapter XX shall be followed except as hereinafter mentioned.]
(2) Limit of imprisonment. No sentence of Imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
263. Record in cases where there is no appeal. In cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge; but he or they shall enter in such form as the Provincial Government may direct the following particulars:
(a) the serial number,
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of the complainant (if any);
(e) the name. parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (d), clause (e) clause (f) or clause (g) of sub-section (1) of section 260 the value of the property in respect of which the offence has been committed.
(g) the plea of the accused an his examination (if any),
(h) the finding, and, in the case of a conviction, a brief statement of the reason therefore,
(i) the sentence or other final order, and
(j) the date on which the proceedings terminated.
[264. Record in appealable cases. In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall record the substance of the evidence and also the particulars mentioned in section 263 and shall, before passing any sentence, record a judgment in the case.]
265. Language of record and judgment. (1) Record made under section 263 and judgments recorded under section 264 shall be written by the presiding officer, either in English or in the language of the Court, or, if the Court to which such presiding officer is immediately subordinate so directs, in such officer’s mother-tongue.
(2) Bench may be authorized to employ clerk. The Provincial Government may authorize any Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record or judgment by means of an officer appointed in this behalf by the Court to which such Bench is immediately subordinate, and the record or judgment so prepared shall be signed by each member of such Bench present taking part in the proceedings.
(3) If no such authorization be given, the record prepared by a member of the Bench and signed as aforesaid shall be the proper record.
(4) If the Bench differ in opinion, any dissentient member may write a separate judgment.
CHAPTER XXII-A – TRIALS BEFORE HIGH COURTS AND COURTS OF SESSION
[265-A. Trial before Court of Session to be conducted by Public Prosecutor. In every trial before a Court of Session, initiated upon a police report, the prosecution shall be conducted by Public Prosecutor.
265-B. Procedure in cases triable by High Courts and Courts of Session. The following procedure shall be observed by the High Courts and the Courts of Session in the trial of cases triable by the said Courts.
265-C. Supply of statements and documents to accused. (1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under sections 161 and 164, and
(d) the inspection note recorded by an investigating officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any:
Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.
(2) In all cases instituted upon a complaint in writing:
(a) the complainant shall;
(i) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of evidence which he is likely to adduce at the trial, and
(ii) within three days of the orders of the Court under Section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused; and
(b) copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial.
265-D. When charge is to be framed. If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.
265-E. Plea. (1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty the Court shall record the plea, and may in its discretion convict him thereon.
265-F. Evidence for prosecution.(l) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution:
Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be, form the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with the record.
(6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.
(7) If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.
265-G. Summing up by prosecutor and defence. (1) In case where the accused, or any one of several accused, does not adduce evidence in his defence, the Court shall on the close of the prosecution case and examination (if any) of the accused call upon the prosecutor to sum up his case whereafter the accused shall make a reply.
(2) In cases where the accused, or any one of the several accused examines evidence in his defence, the Court shall, on the close of the defence case, call upon the accused to sum up the case whereafter the prosecutor shall make a reply.
265-H. Acquittal or conviction. (1) If in any case under this Chapter in which a charge has been framed the Courts finds the accused not guilty, it shall record an order of acquittal.
(2) If in any case under this Chapter the Court finds the accused guilty the Court shall, subject to the provisions of Section 265-I. pass a sentence upon him according to law.
265-I. Procedure in case of previous conviction. (1) In a case where, by reason of a previous conviction the accused has been charged under Section 221, sub-section (7) the Court, after finding the accused guilty of the offence charged and recording a conviction shall record the plea of the accused in relation to such part of the charge.
(2) If the accused admits that he has been previously convicted as alleged in the charge, the Court may pass a sentence upon him according to law, and if the accused does not admit that he has been previously convicted as alleged in the charge the court may take evidence in respect of the alleged previous conviction, and shall record a finding thereon and then pass sentence upon him according to law.
265-J. Statement under section 164 admissible. The statement of a witness duly recorded under Section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (II of 1872).
265-K. Power of Court to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence.
265-L Power of Advocate-General to stay prosecution. At any stage of any trial before a High Court under this Code, before the sentences is passed, the Advocate-General may, if the thinks fit, inform the Court on behalf of Government that he will not prosecute the accused upon the charge, and thereupon all proceedings against the accused shall be stayed, and he shall be discharged of and from the same. But such discharge shall not amount to an acquittal unless the presiding judge otherwise directs.
265-M. Time of holding sittings. For the exercise of its original criminal jurisdiction, every High Court shall hold sittings on such days and at such convenient intervals as the Chief Justice of such Court from time to time appoints.
265-N. Place of holding sittings. (1) The High Court shall hold its sittings at the place at which it held them immediately before the commencement of the Law Reforms Ordinance, 1972, or at such other place (if any) as the Provincial Government may direct.
(2) But the High Court may, from time to time, with the consent of the Provincial Government, hold sittings at such other places within the local limits of its appellate jurisdiction as the High Court appoints.
(3) Such officer as the Chief Justice directs shall give prior notice in the Official Gazette of all sittings intended to be held for the exercise of the original criminal jurisdiction of the High Court].
CHAPTER XXIII – OF TRAILS BEFORE HIGH COURTS AND COURTS OF SESSIONS
266-336. ***** [Omitted by Law Reforms Ordinance, 1972. item 105].
CHAPTER XXIV – GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS
337. Tender of pardon to accomplice. (1) In the case of any offence triable exclusively by the High Court or Court of Sessions, or any offence punishable with the imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal Code, namely, sections 216A, 369, 401, 435 and 477A, (the District Magistrate or a Sub-divisional Magistrate] may, at any stage of the investigation or inquiry into, or the trail of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether, as principal or abettor, in the commission thereof:
[ x xx x xx ]
[Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victim or, as the case may be, of the heirs of the victim.]
(1A) Every Magistrate who tenders a pardon under subsection (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record:
Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.
[(2) Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any.]
(2A) In every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Sessions or High Court, as the case may be.
(3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial.
[338. Power to grant or tender of pardon. At any time before the judgment is passed, the High Court or the Court of Sessions trying the case may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the District Magistrate to tender, a pardon on the same condition to such person.]
[Provided that no person shall be tendered pardon who Is involved in an offence relating to hurt or qatl without permission of the victim or, as the case may be, of the heirs of the victim.]
339. Trial of person to whom pardon has been tendered. (1) Where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter:
Provided that such person shall not be tried jointly with any of the other accused, and that he shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made; in which case it shall be for the prosecution to prove that such conditions have not been complied with.
(2) The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial.
(3) No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court,
[339-A. Procedure in trial of person under section. 339. (1) The Court trying under section 339 a person who has accepted a tender of pardon shall, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of the pardon was made.
(2) If the accused does so plead, the Court shall record the plea and proceed with the trial, and shall, before judgment is passed in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it is found that he has so complied, the Court shall, notwithstanding anything contained in this Code, pass judgment of acquittal.]
340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness. (1) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.
[(2) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial:
Provided that he shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is being tried, or is of bad character, unless
(i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried ; or
(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character or has given evidence of his good character; or
(iii) he has given evidence against any other person charged with or tried for the same offence.’]
341. Procedure where accused does not understand proceedings. If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the [….} trial; and, in the case of a Court other than a High Court, [….] if such trial results In a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit.
342. Power to examine the accused. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Court [….] may draw such inference from such refusal or answer as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
[(4) Except as provided by subsection (2) of S. 340 no oath shall be administered to the accused.]
343. No influence to be used to induce disclosures. Except as provided in sections 337 and 338, no influence, by means of any promise or threat or otherwise shall be used to an accused person to induce him to disclose or with-hold any matter within his knowledge.
344. Power to postpone or adjourn proceedings. (1) If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody :
Remand. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate.
Explanation. Reasonable cause for remand. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
345. Compounding offences. (1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:
(3) Where any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.
(4) When the person who would otherwise be competent to compound an offence under this section is [under the age of eighteen years or is] as idiot a lunatic, any person competent to contract on his behalf may [with the permission of the Court] compound such offence.
[(5) When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard.]
[(5A)A High Court acting in the exercise of its powers of revision under section 439 [and a Court of Session so acting under section 439-A], may allow any person to compound any offence which he is competent to compound under this section.]
(6) The composition of an offence under this section shall have the effect of an acquittal of the accused [with whom the offence has been compounded].
(7) No offence shall be compounded except as provided by this section.
[346. Procedure of Magistrate in cases which he cannot dispose of. (1) If, in the course of an inquiry or trial before a Magistrate in any district, the evidence appears to him to warrant a presumption that the case is one which should be tried, or sent for trial to the Court of Session or the High Court, by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to the Sessions Judge or to such other Magistrate, having jurisdiction, as the Sessions Judge directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself or send the case for trial to the Court of Sessions or the High Court.]
[347. Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court. If in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tired by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial.}
348. Trial of persons previously convicted of offences against coinage, stamp law or property. (1) Whoever, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Pakistan Penal Code with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those Chapter with imprisonment for a term of three years or upwards, shall, if the Magistrate before whom the case is pending is satisfied that there are sufficient grounds [for the trial of the accused by the Court of Session or High Court, as the case may be send the accused for trial to such Court] unless the Magistrate is competent to try the case and is of opinion, that he can himself pass an adequate sentence if the accused is convicted:
Proviso [ x x x x ]
[(2) When any person is sent for trial to the Court of Session or High Court under sub-section 1), any other person accused jointly with him in the trial shall be similarly sent for trial.]
349. Procedure when Magistrate cannot pass sentence sufficiently severe. (1) Whenever a Magistrate of the second or third class, having jurisdiction, is of opinion after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or that he ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to [a Magistrate of the first class specially empowered in this behalf by the Provincial Government].
(1-A) When more accused than one are being tried together and the Magistrate considers it necessary to proceed under sub section (1) in regard to any of such accused, he shall forward all the accused who are in his opinion guilty to the [Magistrate empowered under sub-section (1)].
(2) The Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit and as is according to law:
Provided that he shall not inflict a punishment more severe than he is empowered to inflict under section 32 and 33.
[350. Conviction a….. on evidence partly recorded by one presiding officer and partly by another. (1) Whenever any Sessions Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate, so succeeding, may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself or he may re-examine the witnesses and recommence the inquiry or trial:
Provided that-
(a) where the conviction was held before a Sessions Judge, the High Court, and
(b) where the conviction was held before a Magistrate, the High Court or the Court of Session. may, whether there be an appeal or not, set aside any conviction passed on evidence, not wholly recorded by the Sessions Judge or Magistrate before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial’] .
(2) Nothing in this section applies to cases in which proceedings have been stayed under section 346 or in which proceedings have been submitted to a [Magistrate specially empowered] under section 349.
(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub section (1).
350-A. Changes in constitution of Benches. No order or judgment of a Bench of Magistrates shall be invalid by reason only of a change having occurred in the constitution of the Bench in any case in which the Bench by which such order or judgment is passed is dully constituted under sections 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.
351. Detention of offenders attending Court. (1) Any person attending a Criminal Court although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which Court can take cognizance and which, from the evidence may appear to have been arrested or summoned.
(2) When the detention takes place [….] after a trial has been begun the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.
352. Courts to be open. The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person shall not have access to, or be or remain in the room or building used by the Court.++++++++++++++++++
CHAPTER XXV – OF THE MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
353. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXIIA] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.
354. Manner of recording evidence. In inquires and trials (other than summary trials) under this Code by or before a Magistrate or Sessions Judge, the evidence of the witnesses shall be recorded in the following manner.
355. [Record in trial of certain cases by first an second class Magistrates.] [(1) In cases tried under Chapter XX or Chapter XXII] Magistrate of the first or second class and in all proceedings under section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds.
(2) Such memorandum shall be written and signed by the Magistrate with his own hand, and shall form part of the record.
(3) If the Magistrate is prevented from making a memorandum as above required, he shall record the reason of his Inability to do so and shall cause memorandum to be made in writing from his dictation in open Court, and shall sign the same, and such memorandum shall form part of the record.
356. Record in other cases. [(1) In trials before Courts of Session and in inquiries under Chapter XII] the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge.
(2) Evidence given in English. When the evidence of such witness is given in English the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form pan of the record.
(2-A) When the evidence of such witness Is given In any other language, not being English, than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence In the language of the Court or in English shall form part of the record.
(3) Memorandum when evidence not taken down by the Magistrate or Judge himself. In cases in which the evidence Is not taken down in writing by the Magistrate or Sessions Judge he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record.
(4) If the Magistrate or Sessions Judge is prevented from making memorandum as above required he shall record the reason of his inability to make it.
357. Language of record of evidence. (1) The Provincial Government may direct that in any district or part of a district, or in proceedings before any Court of Session or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in section 356, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother-tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his Inability to do so and shall cause the evidence to be taken down in writing form his dictation in open Court.
(2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate and form part of the record:
Provided that the Provincial Government may direct the Sessions Judge or Magistrate to take down the evidence in the English language or in the language of the Court, although such language is not his mother-tongue.
358. Option to Magistrate in cases under section 335. In cases of the kind mentioned in section 355, the Magistrate may, if he thinks fit, take down the evidence of any witness in the manner provided in section 356, or, if within the local limits of the jurisdiction of such Magistrate the Provincial Government has made the order referred to in section 357, in the manner provided in the same section.
359. Mode of recording evidence under section 356 or section 357. (1) Evidence taken under section 356 or section 357 shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative.
(2) The Magistrate or Sessions Judge may, in his discretion take down, or cause to be taken down, any particular question and answer.
360. Procedure in regard to such evidence when completed. (1) As the evidence of each witness taken under section 356 or section 357 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary.
(3) If the evidence is taken in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so taken down shall be Interpreted to him in the language in which it was given, or in a language which he understands.
361. Interpretation of evidence to accused or his pleader. (1) Whenever any evidence is given in a language not understood by the accused, and he is present in person it shall be interpreted to him in open Court in a language understood by him.
(2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.
(3) When documents are put in for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.
362. [Record of evidence in Presidency Magistrate’s Court.} Omitted by A. 0., 1949, Sch.
363. Remarks respecting demeanour of witness. When a Sessions Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.
364. Examination of accused how recorded. (1) Whenever the accused is examined by any Magistrate or by any Court other than a High Court the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3) In a case in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound as the examination proceeds, to make memorandum thereof in the language of the Court or in English, if he is sufficiently acquainted with latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand and shall be annexed to the record. If the Magistrate or Judge Is unable to-make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under section 263.
365. Record of evidence in High Court. Every High Court shall from time to time, by general rule, prescribe the manner in which evidence shall be taken down in cases coming before the Court and the evidence shall be taken down in accordance with such rule.
CHAPTER XXVI – OF THE JUDGMENT
366. Mode of delivering judgment. (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced or the substance of such judgment
(a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders, and
(b) in the language of the Court, or in some other language which the accused or his pleader understands:
Provided that the whole judgment shall be read out by the presiding judge, if he is requested so to do either by the prosecution or the defence.
(2) The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of the fine only or he is acquitted, in either of which cases it may be delivered in the presence of his pleader.
(3) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.
(4) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 537.
367. Language of judgment: Contents of judgment. (1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, or in English; and shall contain the points for determination, the decision thereon and the reasons for the decision; shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and with his own hand, every page of such judgment shall be signed by him.
(2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which the accused is convicted, and the punishment to which he Is sentenced.
(3) Judgment in alternative. When the conviction is-under the Pakistan Penal Code and it is doubtful under which of two sections, or under which or two parts of the same section of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.
Proviso [x x x x x x x x] Omitted by Law Reforms Ordi. 1972, item 122. Enforced in the Province of Punjab w.e.f. 26.12.1975.
(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed.
(6) For the purposes of this section, an order under section 118 or section 123, sub-section (3), shall be deemed to be a judgment.
368. Sentence of death. (1) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
(2) [Omitted by Act XXV of 1974, item 123. Enforced in the Province of Punjab w.e.f. 26.12.1975].
369. Court not to alter judgment. Save as otherwise provided by this Code or by any other law for the time being in force or, in case of a High Court by the Letters Patent of such High Court no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error.
370. [Presidency Magistrate judgment] Omitted by A.0.1949.
371. Copy of judgment, etc. to be given to accused .…. [(l) In every case where the accused is convicted of an offence, a copy of the judgment shall be given to him at the time of pronouncing the judgment, or when the accused so desires, a translation of the judgment in his own language. If practicable, or in the language of the Court, shall be given to him without delay. Such copy or translation shall be given free of cost.
Provided that this sub-section shall not apply to cases tried summarily or where the accused is convicted of an offence under any law other than the Pakistan Penal Code]
(2) [Omitted by Law Reforms Ordinance, 1972, item No. 124 (ii)].
(3) When the accused is sentenced to death by a Sessions Judge, such Judge shall further inform him of the period within which, if he wishes to appeal, his appeal should be preferred.
372. Judgment when to be translated. The original judgment shall be filled with the record of proceedings, and, where the original is recorded In a different language from that of the Court and the accused so requires, a translation thereof into the language of the Court shall be added to such record.
373. Court of Session to send copy of finding and sentence to District Magistrate. In cases tried by the Court of Session, the Court shall forward a copy of its finding and sentence (if any) to the District Magistrate within the local limits of whose jurisdiction the trial was held.
CHAPTER XXVII – OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION
374. Sentence of death to be submitted by Court of Session. When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court.
375. Power to direct further inquiry to be made or additional evidence to be taken. (1) If when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry to take such evidence itself, or direct it to be made or taken by the Court of Session.
[(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence Is taken.]
(3) When the Inquiry and the evidence (if any) are not made and taken by the High Court, the result of such inquiry and the evidence shall be certified to such Court.
376. Power of High Court to confirm sentences or annul conviction. In any case submitted under section 374, [….] the High Court:
(a) may confirm the sentence, or pass any other sentence warranted by law; or
(b) may annul the conviction and convict the accused of any offence of which the Sessions Court might have convicted him or order a new trial on the same or an amended charge; or
(c) may acquit the accused person ;
Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.
377. Confirmation of new sentence to be signed by two Judges. In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall when such Court consists of two or more judges, be made, passed and signed by at least two of them.
378. Procedure in case of difference of opinion. When any such case is heard before a Bench of Judges and such Judges are equally divided, in opinion, the case, with their opinions thereon, shall be laid before another Judge, and such Judge, after such hearing as he thinks fit, shall deliver his opinion and the judgment or order shall follow such opinion.
379. Procedure in cases submitted to High Court for confirmation. In cases submitted by the Court of Session to the High Court for the confirmation of sentence of death, the proper officer of the High Court shall without delay, after the order of confirmation or other order has been made by the High Court, send a copy of the order under the seal of the High Court and attested with his official signature, to the Court of Session.
380. [Rep. by Probation of Offenders Ordinance. LXV of 1960].
CHAPTER XXVIII – OF EXECUTION
381. Execution of order passed under section 376. When a sentence of death passed by a Court of Sessions is submitted to the High Court for confirmation, such Court of Session shall, on receiving the order of confirmation or other order of the High Court thereon, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.
[‘Provided that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into a compromise with him even at the last moment before execution of the sentence. ‘]
382. Postponement of capital sentence on pregnant woman. If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to [imprisonment] for life.
[382-A. Postponement of execution of sentence of imprisonment under section 476 or for a period of less than one year. Notwithstanding anything contained in section 383 or 391, where the accused:
(a) is awarded any sentence of imprisonment under section 476, or
(b) is sentenced in cases other then those provided for in Section 381, to imprisonment whether with or without fine or whipping for a period of less than one year. the sentence shall not, if the accused furnishes bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct, be executed., until the expiry of the period prescribed for making an appeal against such sentence, or, if an appeal is made within that time, until the sentence of imprisonment is confirmed by the appellate Court, but the sentence shall be executed as soon as practicable after the expiry of the period prescribed for making an appeal, or, in case of an appeal as soon as practicable after the receipt of order of the appellate Court confirming the sentence.
[382-B. Reduction of period of sentence of imprisonment. The length of any sentence of imprisonment imposed upon an accused person in respect of any offence shall be treated as reduced by any period during which he was detained in custody for such offence]
N.W.F.P Amendment. In S. 382-B for the word ‘may’ the word ‘shall’ substituted by Cr.P.C. (Amndt.) Regn., 1997, w.e.f. on the 23rd September, 1997. PLD 1999 N.W.F.P. St. p.36.
[382-C. Scandalous or false and frivolous pleas to be considered in passing sentence. In passing a sentence on an accused for any offence, a Court may take Into consideration any scandalous or false and frivolous plea taken in defence by him or on his behalf.]
383. Execution of sentence of [imprisonment] in other cases. Where the accused is sentenced to (imprisonment] for life or imprisonment in cases other than those provided for by section 381 [and section 382-A] the Court passing the sentence shall forthwith forward a warrant to the jail in which he is, or is to he confined, and, unless the accused is already confined in such jail, shall forward him to such jail, with the warrant.
384. Direction of warrant for execution. Every warrant for the execution of sentence of imprisonment shall be directed to the officer incharge of the jail or other place in which the prisoner is or is to be, confined.
385. Warrant with whom to be lodged. When the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor.
386. Warrant for levy of fine. (1) Wherever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may:
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the District authorizing him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter;
Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole, of such imprisonment in default, no Court shall issue such warrant [……].
(2) The Provincial Government may make rules regulating the manner in which warrants under sub-section (1), clause (a) are to be executed, and for the summary determination of any claim made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under sub-section (1) clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be. deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly;
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
387. Effect of such warrant. A warrant issued under section 386, sub-section (1), clause (a), by any Court may be executed within the local limits of the jurisdiction of such Court, and it shall authorize the attachment and sale of any such property without such limits, when endorsed by the District Magistrate within the local limits of whose jurisdiction such property is found.
388. Suspension of execution of sentence of imprisonment. (1) When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine, and the fine is not paid forthwith, the Court may:
(a) order that the fine shall be payable either in full on or before a date not more (than thirty days from the date of the order, or in two or three instalments, of which the first shall be payable on or before a date not more than thirty days form the date of the order and the other or others at an interval, or at intervals, as the case may be, of not more than thirty days, and
(b) suspend the execution of the sentence of imprisonment and release the offender, on the execution by the offender of a bond, with or without sureties, as the Court thinks fit, conditioned for his appearance before the Court on the date or dates on or before which payment of the fine or the instalments thereof, as the case may be, is to be mada; and if the amount of the fine or of any instalment, as the case may be, is not realized on or before the latest date on which it is payable under the order, the Court may direct the sentence of imprisonment to be carried into execution at once.
(2) The provisions of sub-section (1) shall be applicable also in any case in which an order for the payment of money has been made on non-recovery of which imprisonment may be awarded and the money is not paid forthwith; and, the person against whom the order has been made, on being required to enter into a bond such as. is referred to in that sub-section, fails to do so, the Court may at once pass sentence of imprisonment.
389. Who may issue warrant. Every warrant for the execution of any sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor-in-office.
390. Execution of sentence of whipping only. When the accused is sentenced to whipping only, the sentence shall subject to the provisions of section 391 be executed at such place and time as the Court may direct.
391. Execution of sentence of whipping, in addition to imprisonment. (1) When the accused:
(a) is sentenced to whipping only and furnishes bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct, or
(b) is sentenced to whipping in addition to imprisonment. The whipping shall not be inflicted until fifteen days from the date of the sentence, or, if an appeal is made within that time, until the sentence is confirmed by the Appellate Court, but the whipping shall be inflicted as soon as practicable after the expiry of the fifteen days or in case of an appeal, as soon as practicable after the receipt of the order of the Appellate Court confirming the sentence.
(2) The whipping shall be inflicted in the presence of the officer in charge of the jail, unless the Judge or Magistrate orders it to be inflicted in his own presence.
(3) No accused person shall be sentenced to whipping in addition to imprisonment when the term of imprisonment to which he is sentenced is less than three months.
392. Mode of inflicting punishment. (1) In the case of a person of or over sixteen years of age whipping shall be inflicted with a light rattan not less than half an inch in diameter, in such mode and on such part of the person, as the Provincial Government directs; and, in the case of a person under sixteen years of age, it shall be inflicted in such mode, and on such part of the person, and with such instruments, as the Provincial Government directs.
(2) Limit of number of stripes. In no case shall such punishment exceed thirty stripes and, in the case of a person under sixteen years of age, it shall not exceed fifteen stripes.
393. Not to be executed by instalments. Exemptions. No sentence of whipping shall be executed by instalments and none of the following persons shall be punishable with whipping, namely:
(a) females;
(b) males sentenced to death or to [imprisonment for life] or to imprisonment for more than five years;
(c) males whom the Court considers to be more than forty-five years of age.
394. Whipping not to be inflicted if offender not in fit state of health. (1) The punishment of whipping shall not be inflicted unless a medical officer, if present, certifies or if there is not a medical officer present, unless it appears to the Magistrate or officer present that the offender is in a fit state of health to undergo such punishment.
(2) Stay of execution, if during the execution of a sentence of whipping, a medical officer certifies, or it appears to the Magistrate or officer present, that the offender is not in a fit state of health to undergo the sentence, the whipping shall be finally stopped.
395. Procedure if punishment cannot be inflicted under section 394. (1) In any case in which, under section 394, a sentence of whipping is, wholly or partially, prevented from being executed, the offender shall be kept in custody till the Court which passed the sentence can revise it, and the said Court may, at its discretion either remit such sentence or sentence the offender in lieu of whipping or in lieu of so much of the sentence of whipping as was not executed, to imprisonment for any term not exceeding twelve months, or to a fine not exceeding five hundred rupees, which may be in addition to any other punishment to which he may have been sentenced for the same offence.
(2) Nothing in this section shall be deemed to authorize any Court to inflict imprisonment for a term or a fine or an amount exceeding that to which the accused is liable by law, or that which the said Court is competent to inflict.
396. Execution of sentence on escaped convicts. (1) When sentence is passed under this Code on an escaped convict, such sentence, if of death fine or whipping shall, subject to the provisions hereinbefore contained, take effect immediately, and, if of imprisonment, or [imprisonment for life] shall take effect according to the following rules, that is to say:
(2) if the new sentence is severer in its kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately.
(3) When the new sentence is not severer in its kind than the sentence the convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence.
Explanation. For the purposes of this section:
(a) x x x x x
(b) a sentence of imprisonment with solitary confinement shall be deemed severer than a sentence of the same description of imprisonment without solitary confinement; and
(c) a sentence of rigorous imprisonment shall be deemed severer than a sentence of simple imprisonment with or without solitary confinement.
[397. Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprisonment or imprisonment for life is sentenced to imprisonment, or imprisonment for life, such imprisonment, or imprisonment for life shall commence at the expiration of the imprisonment, or imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.]
398. Saving as to section 396 and 397. (1) Nothing in section 396 or section 397 shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction.
(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment or to a sentence of [imprisonment for life], and the person undergoing the sentences is after its execution to undergo a further substantive sentence, or further substantive sentences, of imprisonment, or [imprisonment for life] effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences.
399. Confinement of youthful offenders in reformatories. (1) When any person under the age of fifteen years is sentenced by any Criminal Court to imprisonment for any offence, the Court may direct that such person, instead of being imprisoned in acriminal jail, shall be confined in any reformatory established by the Provincial Government as a fit place for confinement, in which there are means of suitable discipline and of training in some branch of useful industry or which is kept by a person willing to obey such rules as the Provincial Government prescribes with regard to the discipline and training of persons confined therein.
(2) All persons confined under this section shall be subject to the rules so prescribed,
(3) This section shall not apply to any place in which the Reformatory Schools Act, 1897, is for the time being in force.
400. Return of warrant on execution of sentences. When a sentence has been fully executed, the officer executing it shall return the warrant to the Court from which it issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.
CHAPTER XXIX – OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF SENTENCES
401. Power to suspend or remit sentences. (1) When any person has been sentenced to punishment for an offence, the Provincial Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an applications is made to the Provincial Government for the suspension or remission of a sentence Ihe Provincial Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reason for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the Provincial Government, not fulfilled the Provincial Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police-officer without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(4-A) The provisions, of the above sub-section shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.
(5) Nothing herein contained shall be deemed to interfere with the right of the President or of the Central Government when such right is delegated to it to grant pardons, reprieves, respites or remissions of punishment.
(5-A) Where a conditional pardon is granted by the President or, in virtue of any powers delegated to it, by the Central Government, any condition thereby imposed, of whatever nature, shall be deemed to have been imposed by a sentence of a competent Court under this Code and shall be enforceable accordingly.
(6) The Provincial Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petition should be presented and dealt with.
402. Power to commute punishment. (1) The Provincial Government may, without the consent of the persons sentenced, commute any one of the following sentences for any other mentioned after it: Death, [imprisonment for life], rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine.
(2) Nothing in this section shall affect the provisions of section 54 or section 55 of the Pakistan Penal Code.
402-A. Sentence of death. The powers conferred by section 401 or 402 upon the Provincial Government may, in the case of sentences of death, also be exercised by the President.
[402-B. Certain restrictions on the exercise of powers by Provincial Government. Notwithstanding anything contained in section 401 or section 402, the Provincial Government shall not, except with the previous approval of the President, exercise the powers conferred thereby in a case where the President has passed any orders in exercise of his powers under the Constitution to grant pardons, reprieves and respites or to remit, suspend or commute any sentence or of his powers under section. 402-A.]
(“402-C. Remission or commutation of certain sentences not to be without consent. Notwithstanding anything contained in section 401, section 402, section 402A or section 402B, the Provincial Government, the Federal Government or the President shall not, without the consent of the victim or, as the case may be, of his heirs, suspend remit or commute any sentence passed under any of the section in Chapter XVI of the Pakistan Penal Code.’)
CHAPTER XXX – OF PREVIOUS ACQUITTALS OR CONVICTIONS
403. Persons once convicted or acquitted not to be tried for the same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, or for which he might have been convicted under section 237.
(2) A person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under sections 235, subsection (1).
(3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequence had not happened, or were not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provision of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
Explanation. The dismissal of a complaint, the stopping of proceedings under section 249 [or the discharge of the accused] is not acquittal for the purposes of this section.
Illustrations
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as servant, or, upon the same facts, with theft simply or with criminal breach of trust.
(b) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the facts that A committed robbery at the time when the murder was committed; he may afterwards be charged with, and tried for robbery.
(c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.
(d) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
(e) A Is charged by a Magistrate of the first class with, and convicted by hint of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within paragraph 3 of the section.
(f) A is charged by a Magistrate of the second class with, and convicted by him, of, theft of property from the person of B. A may be subsequently charged with, and tried for, robbery on the same facts.
(g) A, B and C are charged by a Magistrate of the first class, with, and convicted by him of robbing D. A, B and C may afterwards be charged with, and tried for dacoity on the same facts.
PART VII – OF APPEAL, REFERENCE AND REVISION – CHAPTER XXXI – OF APPEALS
404. Unless otherwise provided, no appeal to lie. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this or by any other law for the time bring in force.
405. Appeal from order rejecting application for restoration of attached property. An person whose application under section 89 for the delivery of property or the proceeds of the sale thereof has been rejected by any Court may appeal to the Court to which appeals ordinarily lie from the sentences of the former Court.
406. Appeal from order requiring security for keeping the peace or for good behavior. Any person who has been ordered by a Magistrate under section 118 to give security for keeping the peace or for good behavior may appeal against such order: to the Court of Session:
[Provided that the Provincial Government may, by notification in the official Gazette, direct that in any district specified in the notification appeals from such orders made by a Magistrate other than the District Magistrate shall lie to the District Magistrate and not the Court of Session:
Provided, further, that nothing in this section shall apply to person the proceedings against whom are laid before a Sessions Judge in accordance with the provisions of subsection (2) or sub-section (3A) of section 123.]
[406-A. Appeal from order refusing to accept or rejecting a surety. Any person aggrieved by an order refusing to accept or rejecting a surety under section 122 may appeal against such order to the Court of Session].
[407. Appeal from sentence of Magistrate of the second or third class. (1) Any person convicted on a trial held by any Magistrate of the second or third class, or any person sentenced under section 349 …. may appeal to the District Magistrate.
(2) Transfer of appeals to first class Magistrate. The District Magistrate may direct that any appeal under this section, or any class of such appeals, shall be heard by any Magistrate of the first class subordinate to him and empowered by the Provincial Government to hear such appeals, and thereupon such appeal or class of appeals may be presented to such subordinate Magistrate or If already presented to the District Magistrate, may be transferred to such subordinate Magistrate. The District Magistrate may withdraw from such Magistrate any appeal or class of appeals so presented or transferred.]
408. Appeal from sentence of Assistant Sessions Judge or [Judicial Magistrate]. Any person convicted on a trial held by an Assistant Sessions Judge, [or any Judicial Magistrate] or any person sentenced under section 349 [….] may appeal to the Court of Session:
Provided as follows:
[(a) Clause (a) Rep. by Act 12 of 1923. S. 23.]
(b) when in any case an Assistant Sessions Judge [….] passes any sentence of imprisonment for a term exceeding four years, [….] the appeal of all or any of the accused convicted at such trial shall lie to the High Court:
(c) when any person is convicted by a Magistrate of an offence under section 124-A of the Pakistan Penal Code, the appeal shall lie to the High Court.
[409. Appeal to Court of Session how heard. Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions Judge;
Provided that an Additional Sessions Judge shall heard only such appeals as the Provincial Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him.
Provided further that no such appeal shall hear by an Assistant Sessions Judge unless the appeal is of a person convicted on a trial held by a Magistrate of the second class or third class.]
410. Appeal from sentence of Court of Session. Any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court.
411. [Appeal from sentence of Presidency Magistrate}. Omitted by A.O., 1949, Sch.
411-A. Appeal from sentence of High Court. (1) Except in cases in which an appeal lies to the Supreme Court under Article 185 of the Constitution any person convicted on a trial held by a High Court .in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in section 418 or section 423, sub-section (2), or in the Letters Patent of any High Court, appeal to the High Court:
(a) against the conviction on any ground of appeal which involves a matter of law only:
(b) with the leave of the Appellate Court, or upon the certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground o\ appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be a sufficient ground o) appeal; and
(c) with the leave of Appellate Court, against the sentence passed unless the sentence is one fixed by law.
(2) Notwithstanding anything contained in section 417, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal Jurisdiction, and such appeal may, notwithstanding anything contained in section 418, or section 423, sub-section (2) or in the Letters Patent of any High Court, but subject to the restrictions imposed by clause (b) and clause (c) of sub-section (1) of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law.
(3) Notwithstanding anything elsewhere contained in any Act or Regulation, an appeal under this section shall be heard by a Division Court of the High Court composed of not less than two judges, being judges other than the judge or judge by whom the original trial was held and if the constitution of such a Division Court is impracticable, the High Court shall take action with a view to the transfer of the appeal under section 527 to another High Court.
(4) Subject to such rules as may from time to time be made by the Supreme Court in this behalf, and to such conditions as the High Court may establish or require, an appeal shall lie to the Supreme Court from any order made on appeal under sub-section (1) by a Divisional Court of the High Court in respect of which order the High Court declares that the matter is a fit one for such appeal.
412. No appeal in certain cases when accused pleads guilty. Notwithstanding anything hereinbefore contained where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Session or Magistrate of the first class on such plea, there shall be no appeal except as to the extent or legality of the sentence.
413. No appeal in petty cases. Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a High Court passes a sentence of imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only or in which a Court of Session passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session or [a] Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only.
Explanation. There is no appeal from a sentence of imprisonment passed by such Court or Magistrate in default of payment of fine when no substantive sentence or imprisonment has also been passed.
414. No appeal from certain summary convictions. Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act under section 260 passes a sentence of fine not exceeding two hundred rupees only.
415. Proviso to sections 413 and 414. An appeal may be brought against any sentence referred to in section 413 or section 414 by which any punishment therein mentioned is combined with any other punishment, but not sentence which would not otherwise be liable to appeal shall be appealable merely on the ground that the person convicted is ordered to find security to keep the peace.
Explanation. A sentence of imprisonment in default of payment of fine is not a sentence by which two or more punishment are combined within the meaning of this section.
415-A. Special right of appeal in certain cases. Notwithstanding anything contained in this Chapter, when more person than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any such person, all or any of the persons convicted at such trial shall have a right of appeal.
416. [Saving of sentence on European British subjects}. Rep. by the Criminal Law Amendment Act, 1923 (XII of 1923) S. 25.
[417. Appeal in case of acquittal. (1) Subject to the provision of sub-section (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.’
(3) No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
(4) If, in any case, the application under sub-section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1).
418. Appeal on what matters admissible. (1) An appeal may lie on a matter of fact as well as matter of law [….].
(2) [….]
Explanation. The alleged severity of a sentence shall, for the purposes of this section, be deemed to be a matter of law.
419. Petition of appeal. Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against […. ].
420. Procedure when appellant in jail. If the appellant is in jail, he may present his petition of appeal and the copies companying the same to the officer incharge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court.
421. Summary dismissal of appeal. (1) On receiving the petition and copy under section 419 or section 420, the Appellate Court shall pursue the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.
(2) Before dismissing an appeal under this section, the Court may cal for the record of the case but shall not be bound to do so.
422. Notice of appeal. If the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the Provincial Government may appoint in this behalf, of the time and place on which such appeal will be heard, and shall on the application of such officer, furnish him with a copy of the grounds of appeal. and, in cases of appeals under section 411 A, sub-section (2) or section 417 the Appellate Court shall cause a like notice to be given to the accused.
423. Powers of Appellate Court in disposing of appeal. (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 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 retried 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 altering the finding reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of the section 106, sub-section (3) not so as to enhance the same;
(c) in 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.
(2) [Omitted by Law Reforms Ordinance, 1972 Item 147 Cr. P.O.]
424. Judgment of subordinate Appellate Courts. The rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply so far as may be practicable, to the judgment of any Appellate Court other than a High Court;
Provided that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered.
425. Order by High Court on appeal to be certified to lower Court. (1) Whenever a case is decided on appeal by the High Court under this Chapter, it shall certify its judgment or order to the Court by which the finding, sentence order appealed against was recorded or passed. If the finding, sentence or order was recorded or passed by a Magistrate other than District Magistrate, the certificate shall be sent through the District Magistrate.
(2) The Court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court; and, if necessary, the record shall be amended in accordance therewith.
426. Suspension of sentence pending appeal: Release of appellant on bail: (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail or on his own bond.
(1-A) An Appellate Court shall, unless for reasons to be recorded in writing if otherwise directs, order a convicted person to be released on bail who has been sentenced.
(a) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction;
(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided with a period of one year of his conviction;
(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction].
(2) The power conferred by this section on an appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.
(2-A) [Subject to the provisions of section 382-A] when any person other than a person accused of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(2-B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal by the Supreme Court against any sentence which it has imposed or maintained, it may if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if said person is in confinement, that he be released on bail.
(3) When the appellant is ultimately sentenced to imprisonment, or [imprisonment for life], time during which he is so released shall be excluded in computing the term for which he is so sentenced.
427. Arrest of accused in appeal from acquittal. When an appeal is presented under section 411A, sub-section (2), or section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.
428. Appellate Court may take further evidence or direct to be taken. (1) In dealing with any appeal under this Chapter, the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate or, when the Appellate Court is a High Court, by a Court of Session or an Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court and such Court shall thereupon proceed to dispose of the appeal;
(3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence Is taken ……
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV as if it were an inquiry.
429. Procedure where Judge of Court of Appeal are equally divided. When the Judge composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.
430. Finality of orders on appeal. Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter XXXII.
431. Abatement of Appeals. Every appeal under section 411 A sub-section (2), or section 417 shall! finally abate on the death of the accused, any every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.
CHAPTER XXXII – OF REFERENCE AND REVISION
432 and 433. [Reference by Presidency Magistrate to High Court. Disposal of case according to decision of High Court and direction as to costs]. Omitted by A.O., 1949, Schedule.
434. [Power to reserve questions arising in original jurisdiction of High Court and procedure when question reserved].Omitted by the Criminal Procedure (Amendment) Act, 1943 XXVI of 1943). S. 6.
435. Power to call for records of inferior Courts. (1) The High Court or any Sessions Judge [….], may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending examination of the record.
[Explanation. All Magistrates, shall be deemed to be inferior to the Session Judge for the purposes of this sub-section.]
(2) If any Sub-divisional Magistrate acting under sub-section (1) considers that any such finding, sentence or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate.
(3) [* * * * *]
(4) If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them.
[436. Power to order further inquiry. On examining any record under section 435 or otherwise-
(a) the High Court may direct the Sessions Judge to require a District Magistrate subordinate to him to make, and the Sessions Judge himself may direct any Judicial Magistrate subordinate to him to make, further inquiry into any complaint which has been dismissed under section 203 or sub-section (3) of section 204 [.-}.
(b) The High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Executive Magistrates subordinate to him to make further inquiry into any proceeding in which order of discharge or release has been made under section 119.]
Proviso.– [Proviso omitted by Act XXI of 1976]
437. [Omitted by Act XXI of 1976.]
[438. Report to High Court. (1) The [….] District Magistrate may, if he thinks fit, on examining under section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence be reversed or altered, may order that the execution of such sentence be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond.
(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Session
Judge. ]
439. High Court’s powers of revision. (1) In the case of any proceeding the record of which has been called for by itself, [….] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by Magistrate [….], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the first class.
(4) Nothing in this section shall be deemed to authorize a High Court:
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A.]
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.
439-A. Sessions Judge’s powers of revision. (1) In the case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439.
(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Session Judge].
440. Optional with Court to hear parties. No party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision.
Provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect section 439, sub-section (2).
441. [Statement by Presidency Magistrate of grounds of his decision to be considered by High Court}. Omitted by A.O., 1949 Schedule.
442. High Court’s-order to be certified to lower Court or Magistrate. When a case is revised under this Chapter by the High Court, it shall, in manner hereinbefore provided by section 425, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed, and the Court or Magistrate to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified; and, if necessary, the record shall be amended in accordance therewith.
PART VIII –
SPECIAL PROCEEDINGS – CHAPTER XXXIII – [SPECIAL PROVISIONS RELATING TO CASES IN WHICH EUROPEAN AND PAKISTAN BRITISH SUBJECTS ARE CONCERNED]
443-463. [Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (II of 1950), Schedule].
CHAPTER XXXIV – LUNATICS
464. Procedure in case of accused being lunatic. (1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the Provincial Government directs and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing.
(1A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466.
(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence he shall record a finding to that effect and shall postpone further proceedings in the case.
[465. Procedure in case of person [sent for trial] before Court of Session or High Court being lunatic. (1) If any person before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently Incapable of making his defence, the Court shall, In the first instance, try the fact of such unsoundness and Incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.]
(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.]
466. Release of lunatic pending investigation or trial. (1) Whenever an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or Court, as the case may be, whether the case is one in which bail may be taken or not, may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the Magistrate or Court or such officer as the Magistrate or Court appoints in this behalf.
(2) Custody of lunatic. If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit and shall report the action taken to the Provincial Government:
Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the Provincial Government may have made under the Lunacy Act, 1912.
467. Resumption of inquiry or trial. (1) Whenever an inquiry or a trial is postponed under section 464 or section 465, the Magistrate or Court, as the case may be, may at any time resume the inquiry or trial, and require the accused to appear or be brought before such Magistrate or Court.
(2) When the accused has been released under section 466, and the sureties for his appearance produce him to the officer whom the Magistrate or Court appoints in this behalf, the certificate of such officer that the accused is capable of making his defence shall be receivable in evidence.
468. Procedure on accused appearing before Magistrate or Court. When the accused appears or is again brought before the Magistrate or the Court, as the case may be, the Magistrate or Court considers him capable of making his defence, the inquiry or trial shall proceed.
(2) If the Magistrate or Court considers the accused to be still incapable of making his defence, the Magistrate or Court shall again act according to the provisions of section 464 or section 465, as the case may be, and if the accused is found to be of unsound mind and incapable of making his defence, shall deal with such accused in accordance with the provisions of section 466.
[469. When accused appears to have been insane. When the accused appears to be of sound mind at the time of Inquiry or trial and the Magistrate or Court Is satisfied from the evidence given before him or it that there is reason to believe that the accused committed an act which, if he had been of sound mind, would have been an offence, and that he was at the time when the act was committed, by reason of unsoundness of mind incapable of knowing the nature of the fact or that it was wrong or contrary to law, the Magistrate or Court shall proceed with the case.]
470. Judgment of acquittal on ground of lunacy. Whenever any persons Is acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not.
471. Person acquitted on such ground to be detained in safe, custody. (1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall if such act would, but for the incapacity found, have constituted an offence, order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action taken to the Provincial Government:
Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the Provincial Government may have made under the Lunacy Act, 1912.
(2) Powers of Provincial Government to relieve Inspector-General of certain functions. The Provincial Government may empower the officer in charge of the jail in which a person is confined under the provisions of section 466 or this section, to discharge all or any of the functions of the Inspector-General of Prisons under section 473 or section 474.
472. [Lunatic prisoners to be visited by Inspector General]. Rep. by the Lunacy Act, 1912, Ss. 101 and Schedule II.
473. Procedure where lunatic prisoner is reported capable of making his defence. If such person is detained under the provisions of section 466 and in the case of a person detained in a jail, the Inspector General of Prisons, or, in the case of a person detained in a lunatic asylum, the visitors of such asylum or any two of them shall certify that, in his or their opinion such person is capable of making his defence, he shall be taken before the Magistrate or Court, as the case may be, at such time as the Magistrate or Court appoints, and the Magistrate or Court shall deal with such person under the provisions of section 468; and the certificate of such Inspector General or visitors as aforesaid shall be receivable as evidence.
474. Procedure where lunatic detained under section 466 or 471 is declared fit to be released. (1) If such person is detained under the provisions sections 466 or section 471, and such Inspector General or visitors shall certify that, in his or their judgment, he may be released or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum; and in case it orders him to be transferred to an asylum, may appoint .a Commission, consisting of a Judicial and two medical officers.
(2) Such Commission shall make formal inquiry into the state of mind of such person, taking such evidence as is necessary, and shall report to the Provincial Government which may order his release or detention as it thinks fit.
475. Delivery of lunatic to care of relative or friend. (1) Whenever any relative or friend of any person detained under the provisions of section 466 or section 471 desires that he shall be delivered to his care and custody, the Provincial Government may, upon the application of such relative or friend and on his giving security to the satisfaction of such Provincial Government that the person delivered shall:
(a) be property taken care of and prevented from doing injury to himself or to any other person, and
(b) be produced for the inspection of such officer, and at such times and places, as the Provincial Government may direct, and
(c) in the case of a person detained under section 466, be produced when required before such Magistrate or Court, order such person to be delivered to such relative or friend.
(2) If the person so delivered is accused of any offence the trial of which has been postponed by reason of his being of unsound mind and incapable of making his defence and the Inspecting officer referred to in sub-section (1), clause (b), certifies at any time to the Magistrate or Court that such person is capable of making his defence, such Magistrate or Court shall call upon the relative or friend to whom such accused was delivered to produce him before the Magistrate or Court; and, upon such production, the Magistrate or Court shall proceed in accordance with the provisions of section 468, and the certificate of the inspecting officer shall be receivable as evidence.
CHAPTER XXXV –
PROCEEDINGS IN CASE OF CERTAIN OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE
[476. Procedure in cases mentioned in section 195. (1) When any offences referred to in section 195, sub-section (1) clause (b) or clause (c), has been committed in, or in relation to a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII.
(2) When in any case tried under sub-section (1) the Court finds the offender guilty, it may, notwithstanding anything contained in sub-section (2) of section 262:
(a) pass any sentence on the offender authorized by law for such offence, except a sentence of death, or, imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, a Court of Session, a District Court or any Court exercising the power of a Court of Session or a District Court;
(b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not exceeding [one thousand rupees) or both, if such Court be a Court of Magistrate of the first class, a Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court or Revenue Court not inferior to the Court of Collector;
(c) sentence the offender to simple imprisonment for a term not exceeding one month, or to pay a fine not exceeding fifty rupees or both, If such Court be a Criminal Court or Revenue Court other than a Court referred to in clause (a) or clause (b).
(3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in sub-section (1) and alleged to have been committed in relation to any proceeding in such Court to which such former Court is subordinate within the meaning of sub-section (3) of S. 195.
(4) Any person sentenced by any Court, under this section may, notwithstanding anything hereinbefore contained, appeal;
(a) in the case of a sentence by the High Court, to the Supreme Court;
(b) in case of a sentence by a Court of Session or District Court, or a Court exercising the powers of a Court of Session or a District Court, to the High Court, and
(c) in any other case, to the Session Judge.
(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeal under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against].
[476-A. Forwarding of cases for trial by Courts having jurisdiction. (1) If the Court in any case considers that the person accused of any of the offence referred to in section 476, sub-section (1), and committed in, or in relation to, any proceedings before it, should not be tried under that section, such Court may, after recording the facts constituting the offence and the statement of the accused person, as hereinbefore provided, forward the case to a Court having jurisdiction to try the case, and may require security to be given for the appearance of such accused person before such Court, or, if sufficient security is not given, shall forward such person in custody to such Court.
(2) The Court to which a case is forwarded under this section shall proceed to hear the complaint against the accused person in the manner hereinbefore provided.]
476-B. Omitted by Law Reforms Ordinance. 1972 Item 158.
477. Repealed by Amendment Act XVIII of 1923. S. 129.
478. Omitted by Law Reforms Ordinance, 1972, item 158.
479. Omitted by Law Reforms Ordinance, 1972, item 158.
480. Procedure in certain cases of contempt. (1) When any such offences as is described in section 175, section 178, section 179, section 180 or section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil, Criminalor Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine, not exceeding two hundred rupees, and, in default of payment, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid.
481. Record in such cases. (1) In every such case the Court shall record the facts constituting the offence, with statement (if any) made by the offender, as well as finding and sentence.
(2) If the offence is under section 228 of the Pakistan Pena! Code, the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult.
482. Procedure where Court considers that case should not be dealt with under section 480. (1) If the Court in any case considers that a person accused of any of the offences referred to in section 480 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other reason of opinion that the case should not be disposed of under section 480, such Court after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same and may require security to be given for the appearance of such accused person before such Magistrate or if sufficient security is not given, shall forward such person in custody to such Magistrate.
(2) The Magistrate, to whom any case is forwarded under this section, shall proceed to hear the complaint against the accused person in manner hereinbefore provided
483. When Registrar or Sub-Registrar to be deemed a Civil Court with section 480 and 482. When the Provincial Government so directs, any Registrar or any Sub-Registrar appointed under the [Registration Act, 1908] shall be deemed to be a Civil Court within the meaning of sections 480 and 482.
484. Discharge of offender on submission of apology. When any Court has under section 480 or section 482 adjudged an offender to punishment or forwarded him to a Magistrate for trial for refusing or omitting to do anything which he was lawfully required to do or for any intentional insult or interruption, the Court may, in its discretion, discharge the offender or remit the punishment on his submission to the order or requisition of such Court, or on apology being made to its satisfaction.
485. Imprisonment or committal of person refusing to answer or produce document. If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or produce any document or thing in his possession or power which the Court requires him to produce, and does not offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime such person consents to be examined and to answer, or to produce the document or thing. In the event of his persisting in his refusal, he may be dealt with according to the provisions of section 480 or section 482, and, in the case of a High Court, shall be deemed guilty of a contempt.
486. Appeal from convictions in contempt cases. (1) Any person sentenced by any Court under section 480 may, notwithstanding anything hereinbefore contained, appeal to the Court to which decrees or orders made in such Court are ordinarily appealable.
(2) The provisions of Chapter XXXI shall so far as they are applicable, apply to appeals under this section, and the Appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed against.
(3) An appeal from such conviction by a Court of Small Causes shall lie to the Court of Sessions for the sessions division within which such Court is situate.
(4) An appeal from such conviction by any officer as Registrar or Sub-Registrar appointed as aforesaid may, when such officer is also Judge of a Civil Court, be made to the Court to which it would, under the preceding portion of this section, be made if such conviction were a decree by such officer in his capacity as such Judge, and in other cases may be made to the District Judge.
487. Certain Judges and Magistrates not to try offences referred to in section 195 when committed before themselves.(1) Except as provided in section 8(476], 480 and 485, no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court shall try any person for any offence referred to in section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.
(2) [Omitted by Law Reforms Ordinance, 1972, item 160(ii).]
CHAPTER XXXVI –
OF THE MAINTENANCE OF WIVES AND CHILDREN
488. Order for maintenance of wives and children. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable maintain itself, [….} a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding four hundred rupees in the whole, as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs.
(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.
(3) Enforcement or order. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of such month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Provided further that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reasons she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
(6) All evidence under this Chapter shall be taken in the presence of husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and -shall be recorded in the manner prescribed in the case of summons-cases;
Provided that if the Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend the Court the Magistrate may proceed to hear and determine the case ex-parte. Any orders so made may be set aside for good cause shown on application made within three months form the date thereof.
(7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.
(8) Proceedings under this section may be taken against any person in any district where he resides or is, where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.
489. Alteration in allowance. (1) On proof of a change in the circumstance of any person receiving under section 488 a monthly allowance, or ordered under the same section to pay monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit provided that if he increases the allowance the monthly rate of four hundred rupees in the whole be not exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
490. Enforcement of order of maintenance. A copy of order of maintenance shall be given without payment to the person in whose favour it is made or to his guardian, if any, or to whom the allowance is to be paid; and such order may be enforced by any Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due].
CHAPTER XXXVII – DIRECTIONS OF THE NATURE OF A HABEAS CORPUS
491. Power to issue directions of the nature of a Habeas Corpus. Any High Court may, whenever it thinks fit, direct:
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law:
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively.
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of defendant within such limits be brought in on the Sheriff’s return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in the cases under this section.
(3) Nothing in this section applies to persons detained under [any other law providing for preventive detention.]
491 A. [Powers of High Court outside the limits of appellate jurisdiction} Omitted by the Criminal Law (Extinction of Discriminatory Privileges Act, 1940 (II of 1950), Schedule.
PART IX –
SUPPLEMENTARY PROVISIONS – CHAPTER XXXVIII – OF THE PUBLIC PROSECUTOR
492. Power to appoint Public Prosecutors. (1) The Provincial Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.
(2) The District Magistrate, or subject to the control of the District Magistrate, the Sub-Divisional Magistrate, may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below such rank as the Provincial Government may prescribe in his behalf to be Public Prosecutor for the purposes of any case.
493. Public Prosecutor may plead in all Courts in cases under his charge; Pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution and the pleader so instructed shall act therein, under his directions.
494. Effect of withdrawal from prosecution. Any Public Prosecutor may, with the [….] consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, and upon such withdrawal:
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences;
495. Permission to conduct prosecution. (1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below the tank to be prescribed by the Provincial Government in this behalf but no person other than the Advocate-General, Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the Provincial Government in this behalf, shall be entitled to do so without such permission.
(2) Any such officer shall have the like power of withdrawing from the prosecution as is provided by section 494 and the provisions of that section shall apply to any withdrawal by such officer.
(3) Any person conducting the prosecution may do so personally or by a pleader.
(4) An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted.
CHAPTER XXXIX –
OF BAIL
496. In what cases bail to be taken. When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer incharge of a police-station or appears or is brought before a Court, and is prepared at any lime while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer of Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of section 107, sub-section (4), or section 117, sub-section (3).
497. When bail may be taken in cases of non-bailable offence. (1) When any person accused of non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or [imprisonment for life or imprisonment for ten years].
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:
Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released.
[Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail–
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded.
Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism.]
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) Ah officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court Is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.
498. Power to direct admission to bail or reduction of bail. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not direct that any person be admitted to bail, or that the bail required by a police-officer or Magistrate be reduced.
[498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered etc. Nothing in section 497 or section 498 shall be deemed to require or authorise a Court to release on bail, or to direct to be admitted to bail any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or direction that a person be admitted to bail shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.]
499. Bond of accused and sureties. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
500. Discharge from custody. (1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released ; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him.
(2) Nothing in this section, section 496 or section 497 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.
501. Power to order sufficient bail when that first taken is insufficient. If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do, may commit him to jail.
502. Discharge of sureties. (1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.
(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the persons so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and if he fails to do so, may commit him to custody.
CHAPTER XL –
OF COMMISSIONS FOR THE EXAMINATION OF WITNESSES
503. When attendance of witness may be dispensed with. (1) Whenever, in the course of an inquiry, a trial or any other proceeding under this Code it appears to a District Magistrate, a Court of Sessions or the High Court that the examination of a witness is necessary for the ends of justice and the attendance of such a witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, such Magistrate or Court may dispense with such attendance and may issue a commission to any District Magistrate or Magistrate of the first class, within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness.
[(2) * * * * *]
[(2-A) When the witness resides in an area in or in relation to which the President has Extra-Provincial jurisdiction within the meaning of the Extra-Provincial Jurisdiction Order, 1949, (G.G.O. No. 5 of 1949) the commission may be issued to such Court or Officer, in the area as may be recognized by the President, by notification in the official Gazette as a Court or officer to which or to whom commission may be issued under this sub-section and within the local limits of whose jurisdiction the witness resides.]
(2-B) When the witness resides in the United Kingdom or any other country of the Commonwealth [….}, or in the Union of Burma, or any other country in which reciprocal arrangement in this behalf exists, the commission may be issued to such Court or Judge having authority in this behalf in that country as may be specified by the Central Government by notification in the Official Gazette.
(3) The Magistrate or officer to whom the commission is issued, [x x x] shall proceed to the place where the witness is or shall summon the witness before him, and take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of [….] cases under this Code.
[(4) Where the commission is issued to an officer as is mentioned in sub-section
(2A) he may in lieu of proceeding in the manner provided In sub-section (3), delegate his powers and duties under the commission to any officer subordinate to him whose powers are not less than those of a Magistrate of the first class in Pakistan.]
504. [Commission in case of witness being within Presidency town.] Omitted by A.O., 1949, Schedule.
505. Parties may examine witnesses. (1) The parties to any proceeding under this Code in which a commission is issued, may respectively forward any interrogatories in writing which the Magistrate or Court directing the commission may think relevant to the issue and when the commission is directed to a Magistrate or officer mentioned in section 503, such Magistrate or the Officer to whom the duty of executing such commission has been delegated shall examine the witness upon such interrogatories.
(2) Any such party may appear before such Magistrate or officer by pleader, or if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the said witness.
506. Power of [….] Magistrate to apply for issue of commission. Whenever, in the course of an inquiry or a trial or any other proceeding under this Code before any Magistrate other than a District Magistrate, it appears that a commission ought to be issued for the examination of a witness whose evidence is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, [such Magistrate if he is a judicial Magistrate, shall apply to the Sessions Judge and if he is an Executive Magistrate] shall apply to the District Magistrate, stating the reasons for the application; [and the Sessions Judge or the District Magistrate as the case may be], may either issue a commission in the manner herein before provided or reject the application.
507. Return of commission. (1) After any commission issued under section 503 or section 506 has been duly executed it shall be returned, together with the exposition of the witness examined thereunder, to the Court out of which it issued; and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.
(2) Any deposition so taken, if it satisfies the conditions prescribed by section 33 of the Evidence Act, 1872 may also be received in evidence at any subsequent stage of the case before another Court.
508. Adjournment of inquiry or trial. In every case in which a commission is issued under section 503 or section 506, the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.
508-A. Application of this Chapter to commission issued in Burma. The provisions of sub-section (3) of section 503, and so much of sections 505 and 507 as relates to the execution of a commission and its return by the Magistrate or officer to whom the commission is directed shall apply in respect of commissions issued by any Court or Judge having authority in this behalf in the United Kingdom or in any other country of the Commonwealth ….. or in the Union of Burma or any other country in which reciprocal arrangement in this behalf exists under the law in force in that country relating to commissions for the examination of witnesses as they apply commissions issued under section 503 or section 506.
CHAPTER XLI – SPECIAL RULES OF EVIDENCE
509. Deposition of medical witness. (1) The deposition of a Civil Surgeon or other medical witness taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness.
(2) Power to summon medical! witness. The Court may, if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition.
510. Report of Chemical Examiner, Serologist etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government [or of the Chief Chemist of Pakistan Security Printing Corporation, Limited] or any Serologist, finger print expert or fire-arm expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code:
Provided that the Court may [if it considers necessary in the interest of justice] summon and examine the person by whom such report has been made.]
511. Previous conviction or acquittal how proved. In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force.
(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was had to be a copy of the sentence or order; or
(b) in case of conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered: together with, in each of such cases evidence as to the identity of the accused person with the person so convicted or acquitted.
512. Record of evidence in absence of accused. (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or [send for trial to the Court of Session or High Court] such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, of trial for the offence with which he is charged, if the dependant is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) Record of evidence when offender unknown. If it appears that an offence punishable with death or 21 [imprisonment for life] has been committed by some person unknown, the High Court may direct that any Magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence. Any deposition so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan.
CHAPTER XLII – PROVISIONS AS TO BONDS
513. Deposit instead of recognizance. When any person is required by any Court or officer to execute a bond, with or without sureties such Court or officer may, except in. the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix, in lieu of executing such bond.
514. Procedure on forfeiture of bond. (1) Whenever it is proved to the satisfaction of the Court by which a bond under thisCode has been taken, or of the Court of a Magistrate of the first class, or when the bond is for appearance before a Court, to the satisfaction of such Court,that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead.
(3) Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorize the attachment and sale of any movable property belonging to such person without such limits, when endorsed by the District Magistrate within the local limits of whose jurisdiction such property is found.
(4) If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the Court which Issued the warrant, to imprisonment in the civil jail for a term which may extend to six months.
(5) The Court may at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.
(6) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(7) When any person who has furnished security under section 107 or section 118 ….. is convicted of an offence the commission of which constitutes a breach of the conditions of this bond, or of a bond executed in lieu of his bond under section 514B, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety, or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
514-A. Procedure in case of insolvency or death of surety or when a bond is forfeited. When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of section 514, the Court by whose order such bond was taken or a Magistrate of the first class, may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order, and, if such security is not furnished, such Court of Magistrate may proceed as if there had been a default in complying with such original order.
514-B. Bond required from a minor. When the person required by any Court or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.
[515. Appeal from, and revision of, orders under section 514. All order passed under section 514 by a District Magistrate or a Judicial Magistrate, shall be appealable to Sessions Judge and all such orders passed by an Executive Magistrate other than a District Magistrate, shall be appealable to the District Magistrate, or, if no appeal is made against any such order, may be revised, in the case of an order passed by a District Magistrate or a Judicial Magistrate, by the Sessions Judge, and in the case of an order passed by an Executive Magistrate other than a District Magistrate, by the District Magistrate.]
516. Power to direct levy of amount due on certain recognizances. The High Court or Court of Session may direct any Magistrate to levy the amount due on a bond to appear and attend at such High Court or Court of Session.
CHAPTER XLIII – OF THE DISPOSAL OF PROPERTY
516-A. Order tor custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as It thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
‘[Provided that, if the property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances]’
(Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf:
Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or Court.]
517. Order for disposal of property regarding which offence committed. (1) When an Inquiry or a trial in any CriminalCourt is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) When a High Court or a Court of Session makes such order and cannot through its own officers conveniently deliver the property to the person entitled thereto, such Court may direct that the order be carried effect by the District Magistrate.
(3) When an order is made under this section such order shall not, except, where the property is livestock or subject to speedy and natural decay, and save as provided by subsection (4), be carried out for one month, or, when an appeal is presented, until such appeal has been disposed of.
(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under the provisions of sub-section (1) to any person claiming to be entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under this section is modified or set aside on appeal.
Explanation. In this section the term ‘property’ includes in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
518. Order may take form of reference to District or Sub-Divisional Magistrate. In lieu of itself passing an order under section 517 the Court may direct the property to be delivered to the district Magistrate or to a Sub Divisional Magistrate who shall in such case deal with it as if it had been seized by the police and the seizure had been reported to him in the manner hereinafter mentioned.
519. Payment to innocent purchaser of money found on accused. When any person is convicted of any offence which includes, or amounts to, theft or receiving stolen property, and, it is proved that any other person has bought the stolen property from him without knowing, or having reason to believe, that the same was stolen, and that any money has on his arrest been taken out of the possession of the convicted person, the Court may, on the application of such purchaser and on the restitution of the stolen property to the person entitled to the possession thereof, order that out of such money a sum not exceeding the price paid by such purchaser be delivered to him.
520. Stay of order under sections 517, 518, or 519. Any Court of appeal, confirmation, reference or revision may direct any order under section 517, section 518 or section 519 passed by a Court, subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just
521. Destruction of libelous and other matter. (1) On a conviction under the Pakistan Penal Code, section 292 section 293, section 501 or section 502, the Court may order the destruction of all the copies of the thing in respect of which the conviction was had, and which are in the custody of the Court or remain in the possession or power of the person convicted.
(2) The Court may, in like manner on a conviction under the Pakistan Penal Code, section 272, section 273, section 274, section 275, order the food, drink, drug or medical preparation in respect of which the conviction was had to be destroyed.
522. Power to restore possession of immovable property. (1) Whenever a person is convicted of an offence [of cheating forgery or of an offence] attended by criminal force or show of force or by criminal intimidation and it appears to Court that by such [cheating forgery force] or show of force or criminal intimidation any person has been dispossessed of any immovable property, the Court may if it thinks fit, when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same [whether such property is in the possession or under the control of the person convicted or of any other person to whom it may have been transferred for any consideration or otherwise’.]
(2) No such order shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.
(3) An order under this section may be made by any Court of appeal, confirmation, reference or revision.
[522-A. Power to restore possession of movable property.-(l) Whenever a person is convicted of an offence of criminalmis-appropriation of property or criminal breach of trust or cheating or forgery and it appears to the Court that, by such mis-appropriation, breach of trust, cheating or forgery, any person has been dispossessed or otherwise deprived of any movable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction, order the person dispossessed or deprived of the property, where such property can be identified, to be restored to the possession of such property, whether such property is in the possession or under the control of the person convicted or of any other person to whom it may have been transferred for any consideration or otherwise.
(2) Where the property referred to in sub-section (1) cannot be identified or has been disposed of by the accused so that it may not be identified, the Court may order such compensation to be paid to the person dispossessed or deprived of such property as it may determine in the circumstances of the case.
(3) No order referred to in sub-section (1) or sub-section (2) shall prejudice any right or interest in any movable property which any person may be able to establish in a civil suit’.]
523. Procedure by police upon seizure of property taken under section 51 or stolen. (1) The seizure by any police-officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property.
(2) Procedure where owner of property seized unknown. If the person so entitled is known, the Magistrate may order the property to be delivered to him on such condition (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
524. Procedure where no claimant appears within six months. (1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found, is unable to show that it was legally acquired by him, such property shall be at the disposal of the Provincial Government and may be sold under the orders of the District Magistrate or Sub-divisional Magistrate or of [any other Executive Magistrate] empowered by the Provincial Government in this behalf.
(2) In the case of every order passed under this section an appeal shall lie to the Court to which appeal against sentences of the Court passing such order would lie.
525. Power to sell perishable property. If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that the value of such property is less than ten rupees the Magistrate may at any time direct it to be sold; and the provisions of sections 523 and 524 shall, as nearly as may be practicable, apply to the net proceeds of such sale.
CHAPTER XLIV – OF THE TRANSFER OF CRIMINAL CASES
526. High Court may transfer case or itself try it. (1) Whenever it is made to appear to the High Court:-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or
(d) that an order under this section will tend to the general convenience of the parties or witnesses, or
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order:
(i) that any offence be inquired into or tried by any Court not empowered under sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence.
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case or appeal be transferred to and tried before itself; or
(iv) that an accused person be sent for trial to itself or to a Court of Session.
(2) When the High Court withdraws for trial before itself any case from any Court [….] it shall observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn.
(3) The High Court may act either on the report of the lower Court, or the application of a party interested, or on its own initiative.
(4) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Advocate-General, be supported by affidavit or affirmation.
(5) When an accused person makes an application under this section the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if so ordered, pay any amount which the High Court may under this section award by way of compensation to the person opposing the application.
(6) Notice to Public Prosecutor of application under this section. Every accused person making any such application shall give to the Public Prosecutor notice in writing of application, together with a copy of the grounds on which it is made; and no order shall be mode on the merits of the application unless at least twenty four hours have elapsed between the giving of such notice and the hearing of the application.
(6A) When any application for the exercise of the power conferred by this section is dismissed, the High Court may if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding [five hundred rupees] as it may consider proper in the circumstances of the case.
(7) Nothing in this section shall be deemed to affect any order made under section 197.
[(8) In an inquiry under Chapter VIII or any trial, the fact that any party intimates to the Court at any stage that he intends to make an application under this section shall not require the Court to adjourn the case; but the Court shall not pronounce its final judgment or order until the application has been finally disposed of by the High Court and if the application is accepted by the High Court, the proceedings taken by the Court subsequent to the intimation made to it shall, at the option of the accused, be held afresh]
(9) x x x x x
(10) If, before the argument (if any) for the admission of an appeal begins, or, in the case of an appeal admitted, before the argument for the appellant begins, any party interested intimates to the Court that he intends to make an application under this section, the Court shall, upon such party executing, if so required, a bond without sureties of an amount not exceeding (five hundred rupees] that he will make such application within a reasonable time to be fixed by the Court, postpone the appeal for such a period as will afford sufficient time for the application to be made and an order to be obtained thereon.
526-A. High Court to transfer for trial to itself in certain cases. [Omitted by Ordinance XX of 1969]. S. 2.
527. Power of Provincial Government to transfer cases and appeal. (1) The Provincial Government may, by notification in the official Gazette direct the transfer of any particular case or appeal from one High Court to another High Court or from anyCriminal Court subordinate to one to another High Court, or from any Criminal Court subordinate to one High Court, to any other Criminal Court, of equal or superior jurisdiction subordinate to another High Court, whenever it appears to it that such transfer will promote the ends of justice, or tend to the general convenience of parties or witnesses.
Provided that no case or appeal shall be transferred to a High Court or other Court in another Province without the consent of the Provincial Government of that Province.
(2) The Court to which such case or appeal is transferred shall deal with the same as if it had been originally instituted in, or presented to, such Court.
528. Sessions Judge may withdraw cases from Assistant Sessions Judge. (1) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Assistant Sessions Judge subordinate to him.
(1A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
(1B) Where a Sessions Judge withdraws or recalls a case under sub-section (1) or recalls a case or appeal under sub section (1A), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.
(1C) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.
Explanation. Omitted by Law Reforms Act 1997 (Act No. XXIII of 1997.
(2)&(3) [Omitted by Act XXI of 1976. ]
(4) Any Magistrate may recall any case made over by him under section 192, sub-section (2), to any other Magistrate and may inquire into or try such case himself.
(5) A Magistrate making an order under [preceding sub-section] shall record in writing his reasons for making the same.
[528-A. Powers of District Magistrate for transfer of cases, etc. (1) A District Magistrate may withdraw or recall any case which he has made over to a Magistrate subordinate to him.
(2) Where a District Magistrate withdraws or recalls a case under sub-section (1), he may either try the case himself or make it over in accordance with the provisions of this Code for trial to any other Magistrate subordinate to him.’]
CHAPTER XLV – OF IRREGULAR PROCEEDINGS
529. Irregularities which do not vitiate proceedings. If any Magistrate not empowered by law to do any of the following things, namely:-
(a) to issue a search-warrant under section 98;
(b) to order, under section 155, the police to investigate an offence:
(c) to hold an inquest under section 176:
(d) to issue process under section 186, for the apprehension of a person within the local limits of his jurisdiction who has committed an offence outside such limits;
(e) to take cognizance of an offence under section 190, sub-section (1), clause (a) or clause (b);
(f) to transfer a case under section 192;
(g) to tender a pardon under section 337 or section 338;
(h) to sell property under section 524 or section 525; or
(i) to withdraw a case and try it himself under section 528; erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.
530. Irregularities which vitiate proceedings. If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:-
(a) attaches and sells property under section 88;
(b) issues a search-warrant for a letter, parcel or other thing in the Post Office, or a telegram in the Telegraph Department.
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour:
(f) cancels a bond to keep the peace;
(g) makes an order under section 133, as to a local nuisance;
(h) prohibits under section 143, the repetition or continuance of a public nuisance;
(i) issue an order under section 144;
(j) makes an order under Chapter XXII;
(k) takes cognizance under section 190, sub-section (1) clause (c), of an offence;
(I) passes a sentence, under section 349, on proceeding recorded by another Magistrate:
(m) calls under section 435, for proceedings.
(n) [ x x x x x ]
(o) revises, under section 515, an order passed under section 514:
(p) tries an offender;
(q) tries an offender summarily; or
(r) decides an appeal; his proceedings shall be void:
531. Proceedings in wrong place. No finding sentence or order of any criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions divisions, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
532. [Omitted be Law Reforms Ordinance, 1972, item 174 w.e.f 26.12.1975].
533. Non-compliance with provisions of section 164 or 364. (1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and notwithstanding anything contained in the Evidence Act, 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.
(2) The provisions of this section apply to Courts of Appeal, Reference and Revision.
534. [Omission to give information under section 447] Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (II of 1950), Schedule.
535. Effect of omission to prepare charge. (1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.
(2) If the court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge.
536. [Omitted by Law Reforms Ordinance, 1972, item 174 w.e.f 26.12.1975].
[537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings. Subject to the provisions hereinbefore contained, no finding, sentence order passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account’
(a) of any error, omission or irregularity in the complaint, report by police-officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges unless such error omission or irregularity has in fact occasioned a failure of justice.
Explanation. In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.]
538. Attachment not illegal, person making same not trespasser for defect or want of form in proceedings. No attachment made under this Code shall be deemed unlawful, nor shall any person making the same be deemed a trespasser, on account of any defect or want of form in the summons, conviction, writ of attachment or other proceedings relating thereto.
CHAPTER XLVI – MISCELLANEOUS
539. Courts and persons before whom affidavits may be sworn. Affidavits and affirmations to be used before any High court or any officer of such Court may be sworn and affirmed before such Court [….] or any Commissioner or other person appointed by such court for that purpose, or any Judge, or any Commissioner for taking affidavits in any Court of Record in Pakistan.
539-A. Affidavits in proof of conduct of public servant. (1) When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the applications by affidavit, and Court may, if it thinks fit, order that evidence relating to such facts be so given.
An affidavit to be used before any Court other than a High court under this section may be sworn or affirmed in the manner prescribed in section 539, or before any Magistrate.
Affidavits under this section shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such as he has reasonable grounds to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief.
(2) The Court may order any scandalous and irrelevant matter in a affidavit to be struck out or amended.
539-B. Local inspection. (1) Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of property appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case. If the Public Prosecutor complainant or accused so desires , a copy of the memorandum shall be furnished to him free of cost.
540. Power to summon material witness or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.
540-A. Provision for inquiries an trial being held in the absence of accused in certain cases. (1) At any stage of an inquiry or trial under this Code, where two or more accused are before the court, if the Judge or Magistrate is satisfied for reason to be recorded, that any one or more of such accused is or incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.
541. Power to appoint place of imprisonment. (1) Unless when other-wise provided by any law for the time being in force, the Provincial Government may direct in what place any person liable to be imprisoned or committed to custody under this Codeshall be confined.
(2) Removal to criminal pi! of accused or convicted person who are in confinement in civil jail, and their return to the civil jail. If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail, the Court or Magistrate ordering the imprisonment or committal may direct that the person be removed to a criminal jail.
(3) When a person is removed to a criminal jai! under sub-section (2) he shall, on being released therefrom, be sent back to the civil jail, unless either:
(a) three years have elapsed since he was removed to the criminal jail in which case he shall be deemed to have been discharged from the civil jail under (section 58 of the Code of Civil Procedure 1908]; or
(b) the Court which ordered his imprisonment in the civil jail has certified to the officer in charge of the criminal jail that he is entitled to be discharged under [section 58 of the Code of Civil Procedure 1908].
542. [Power of Presidency Magistrate to order prisoner in jail to be brought up for examination]: Rep, by (he Federal Laws (Revision and Declaration Act. 1951), S. 3 and II Schedule.
543. Interpreter to be bound to Interpret truthfully. When the services of an Interpreter are required by any Criminal Court for She interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or statement.
544. Expenses of complainants and witness. Subject to any rules made by the Provincial Government any criminal! Court may, if it thinks fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial, or other proceeding before such Court under this Code.
[544-A. Compensation to the heirs of the person killed, etc. [(1) Whenever a person is convicted of an offence in the commission whereof the death of or hurt, injury, or mental anguish or psychological damage to, any person is caused or damage to or loss or destruction of any property is caused, the court shall when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the court may determine having regard to the circumstances of the case’;] and
(2) The compensation payable under sub-section (1) shall be recoverable as [an arrear of land revenue] and the court may further order that, in default of payment or of recovery as aforesaid the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceeding thirty days.
(3) The compensation payable under sub-section (1) shall be in addition to any sentence which she court may impose for the offence of which the person directed to pay compensation has been convicted.
(4) The provisions of sub-sections (28), (2C), (3), and (4) of section 250, shall, as far as may be, apply to payment of compensation under this section.
(5) An order under this section may also be made by an appellate Court or by a Court when exercising its powers of revision.
545. Power of Court to pay expenses, compensation out of fine. (1) Whenever under any law in force for the time being aCriminal Court imposes a fine or confirms in appeal, revision or otherwise a sentence of fine, or a sentence of which fine forms a part, the court may, when passing judgment, order the whole or any part of the fine recovered to be applied:
(a) in-defraying expenses properly incurred in the prosecution;
(b) in the payment of any person of compensation for any loss, [injury or mental anguish or psychological damage] caused by the offence, when substantial compensation is, in the opinion of the court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence which includes theft, criminal misappropriation, breach of trust, or cheating or of having dishonestly received or retained or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser, of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed or, if an appeal be presented, before the decision of the appeal.
546. Payments to be taken into account in subsequent suit. At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under section [544-A or section] 545.
546-A. Order of payment of certain fees paid by complainant in non-cognizable cases.
(1) Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant:
(a) the fee (if any) paid on the petition of complaint or the examination of the complainant, and
(b) any fees paid by the complainant for serving processes on his witnesses or on the accused, and may further order that, in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days.
(2) An order under this section may also be made by an Appellate Court, or by the High Court, when exercising its powers of revision.
547. Money ordered to be paid recoverable as fines. Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for shall be recoverable as if it were a fine.
548. Copies of proceeding. If any person affected by a judgment or order passed by a Criminal Court desires to have a copy of ….. any order or deposition or other part of the record he shall, on applying for such copy, be furnished therewith:
Provided that he pays for the same unless the Court, for some special reason, thinks fit to furnish it free of cost.
549. Delivery to military authorities of persons liable to be tried by Court martial. (1)The Central Government may make rules consistent with this Code and the [Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Air Force Act, 1953 (VI of 1953, and the Pakistan Navy Ordinance, 1961 (XXXV of 1961] and any similar law for the time being in force as to the cases in which person subject to military naval or air force law shall be tried by a Court to which this Code applies, or by Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules and shall in proper cases deliver him together with a statement of the offence of which he is accused to the commanding officer of the regiment, corps, ship or detachment to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court-martial.
(2) Apprehension of such persons. Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavour to apprehend and secure any person accused of such offence.
(3) Notwithstanding anything contained in this Code, if the person arrested by the Police is a person subject to the Pakistan Army Act, 1952 (XXXIX of 1952) and the offence for which he is accused is triable by a Court-martial, the custody of such person and the investigation of the offence of which he is accused may be taken over by the Commending Officer of such person under the said Act.]
550. Powers to Police to seize property suspected to be stolen. Any police-officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such police-officer, if subordinate to the officer in charge of a police-station, shall forthwith report the seizure to that officer.
551. Powers of superior officers of police. Police officers superior in rank to an officer in charge of a police-station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.
552. Power to compel restoration of abducted females. Upon complaint made to a District Magistrate on oath of the abduction or unlawful detention of a woman, or of a female child under the age of sixteen years, for any unlawful purpose, he may make an order for the immediate restoration of such woman to her liberty or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.
553. [Compensation to persons groundlessly given in charge in presidency-town]. Rep. by the Federal Laws (Revision and Declaration Act, 1954 (XXVI of 1951) S. and II Schedule.
554. Power of (x x) High courts to make rules for Inspection of records of subordinate courts. (1) With the previous sanction of the Provincial Government, any High Court may from time to time, make rules for the inspection of the records of subordinate Courts.
(2) Power of other High Courts to make rules for other purposes. Every High Court may, from time to time, and with the previous sanction of Provincial Government:
(a) make rules for keeping all books, entries and accounts to be kept in all Criminal Courts subordinate to it and for the preparation and transmission of any returns or statements to be prepared and submitted by such Courts:
(b) frame forms for every proceeding in the said Courts for which it thinks that a form should be provided:
(c) make rules for regulating its own practice and proceedings and the practice and proceedings of all Criminal Courts subordinate to it; and
(d) make rules for regulating the execution of warrants issued under this Code for the levy of fines:
Provided that the rules and forms made and framed under this section shall not be inconsistent with this Code or any other law in force for the time being.
(3) All rules made under this section shall be published in the official Gazette.
555. Forms. Subject to the power conferred by section 554 and by [Articles 202 and 203] of the Constitution, the forms set forth in the Fifth Schedule, with such variation as the circumstances of each require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.
556. Case in which Judge or Magistrate is personally interested. No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try ….. any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from an judgment or order passed or made by himself.
Explanation. A Judge or Magistrate shall not be deemed a party, or personally interested, within the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case.
Illustration
A., as Collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise Laws A is disqualified for trying this case as a Magistrate.
557. Practicing pleader not to sit as Magistrate in certain Courts. No pleader who practises in the Court of any Magistrate in a district, shall sit as a Magistrate in such Court or in any Court within the jurisdiction of such Court,
558. Power to decide language of Courts. The Provincial Government may determine what for the purposes of this Code, shall be deemed to be the language of each Court within the territories administered by such Government, other than the High Courts.
559. Provision for powers of Judges and Magistrate being exercised by their successors in office. (1) Subject to the other provisions o( the Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office.
(2) When there is any doubt as to who is the successor in office of any Magistrate, [the Sessions Judge in the case of Judicial Magistrate, and the District Magistrate in the case of Executive Magistrate] shall determine by order in writing the Magistrate who shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor in office of such Magistrate.
(3) When there is any doubt as to who is the successor in office of any Additional or Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the Judge who shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor in office of such Additional or Assistant Sessions Judge.
560. Officers concerned in sales not to purchase or bid for property. A public servant having any duty to perform in connection with the sale of any property under this Code shall not purchase or bid for the property.
561. [xxxxxxx]
561-A. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power 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.
First Offenders
562. Powers of Court to release certain convicted offenders on probation of god conduct instead of sentencing to punishment. When any person not under twenty one years of age is convicted of an offence punishable with imprisonment for not more than seven years, or when any person under twenty one years of age or any woman is convicted of an offence not punishable with death or [imprisonment] for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be good behaviour:
Provided that, where any first offender is convicted by a Magistrate of the third class, or a Magistrate of the second class not specially empowered by the Provincial Government in this behalf and the Magistrate is of opinion that the powers conferred by this section should be exercised he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class [ x x x] forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in manner provided by section 380.
(1A) Conviction and release with admonition. In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Pakistan Penal Code punishable with not more than two years imprisonment and no previous conviction is proved against him, the Court before whom he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(2) An order under this section may be made by any Appellate Court or by the High Court where exercising its power of revision.
(3) When an order has been made under this section in respect of any offender, the Court may, on appeal when there is a right of appeal to such Court, or when exercising its power of revision, set aside such order and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court which the offender was convicted.
(4) The provisions of sections 122, 126-A and 406A shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.
563. Provision in case of offender failing to observe conditions of his recognizance. (1) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance it, may issue a warrant for his apprehension.
(2) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court Issuing the warrant, and such Court may either remand him in custody until the case is heard or admit to bail with a sufficient surety conditions on his appearing for sentences. Such Court may, after hearing the case, pass sentence.
564. Conditions as to abode of offender. (1) The Court before directing the release of an offender under section 562, sub section (1), shall be satisfied that the offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(2) Nothing in this section or in sections 562 and 563 shall effect the provisions of section 31 of the Reformatory School Act, 1897. Previously convicted offender
565. Order for notifying address of previously convicted offender. (1) When any person having been convicted:
(a) by a Court in Pakistan of an offence punishable under section 215, section 489A, section 489B, section 489C, or section 489D of the Pakistan Penal Code, or of any offence punishable under Chapter XII or Chapter XVII of the Code, with imprisonment of either description for a term of three years or upward; or
(b) X X X X is again convicted of any offence punishable under any of those sections or Chapters with imprisonment for a term of three years or upwards by a High Court, Court of Sessions, [District Magistrate, Sub-Divisional Magistrate] or Magistrate of the first class, such Court or Magistrate may, if it or he thinks fit, at the time of passing sentence of [….] imprisonment on such person, also order that his residence and any change of or change of or absence from such residence after release be notified as hereinafter provided for a term not exceeding five years from the date of the expiration of such sentence.
(2) If such conviction is set aside on appeal or otherwise, such order shall become void.
(3) The Provincial Government may make rules to carry out the provisions of this section relating to the notification of residence or change of or absence from residence by released convicts.
(4) Any person charged with a breach of any such rule may be tried by a Magistrate of competent jurisdiction in the district in which the place last notified by him as his place of residence is situated.
SCHEDULE 1
[Enactments repealed]. Rep. by the Repealing and Amending Act, 1914 (X of 1914), S. 3 and Sch. II.
QUANTUM OF PUNISHMENT-The learned counsel for the accused No. 5 was at pains to persuade us that the said accused is now about 70/75 years of age and at this distance of time, it may not be appropriate to send him back to jail. Taking overall view of the matter, we are not impressed by this submission. Even in case of offence under Section 326, IPC, which commended to the High Court, the same was punishable with imprisonment for life or with imprisonment of either description which may extend to ten years and also liable to fine. Had it been a conviction under Section 326, as aforesaid, the sentence of only about five months in the facts of the present case, by no stretch of imagination, was adequate.
Whether the decree passed on a compromise can be challenged by the stranger to the proceedings in a separate suit?
The appellant could file a suit for protection of his right, title or interest devolved on the basis of the stated sale deed dated 6th January, 1984, allegedly executed by one of the party (Sampatiya) to the proceedings in the partition suit, which could be examined independently by the Court on its own merits in accordance with law.
The common parlance test”, “marketability test”, “popular meaning test” are all tools for interpretation to arrive at a decision on proper classification of a tariff entry. These tests, however, would be required to be applied if a particular tariff entry is capable of being classified in more than one heads.
