Академический Документы
Профессиональный Документы
Культура Документы
(1) You are here studying the subject of criminal procedure. But whatever the subject of a legal
study, the starting print must be the Constitution namely the Constitution of the Islamic
Republic of Pakistan, 1973 (the Constitution), that being the supreme law of the country. The
reasons are:
i) it is the source from which all governmental forums, including the executive forum to
prosecute, investigate etc. criminal offences, the legislative power to create offences,
to provide for their punishment, and to establish the procedure for their trial, and the
judicial power to try the criminal offences and furnish the offences, emanate;
ii) it provides, particularly by guaranteeing some of the important human fundamental
rights, a constitutional model of a fair criminal procedure – a mini-code of criminal
procedure.
(2) Relevant provisions of the U.S. Constitution, relating to criminal procedure, particularly:-
i) the Fourth Amendment, ensuring the right to privacy, including the right against
unreasonable searches and seizure of persons and things;
ii) the Fifth Amendment, guaranteeing:-
(4) i) Relevance of the U.S. Constitution, its Bill of Rights, the Constitutional Law
developed in America rooted in the Rights and the compounding Rights relating to
criminal procedure granted by the Constitution of Pakistan.
ii) Effect of, so to say, the internationalization of the criminal procedure and the cases
decided in different jurisdictions on the law of Pakistan.
1
(5) The significance of a written Constitution.
Reading Material:
i) Marbury v Martson – 5 US 1;
ii) Katz v US – 389 US 347;
iii) Johnson v US – 333 US 10;
iv) Illinois v Gates – 462 US 213;
v) US v Watson – 423 US 411;
vi) Welsh Case – 466 US 340;
vii) Terry v Ohio – 392 US;
viii) Chimel v California – 395 US 752;
ix) Wolf v Colorado – 338 US 25;
x) Mincey – 437 US 385;
xi) Schmerger v California – 384 US 757;
xii) Miranda v Arizona – 384 US 436;
xiii) Massiah v US – 377 US 201;
xiv) Powell v Albana – 287 US 45;
xv) Gideon v Wainwright – 372 US 335;
xvi) Escobedo v Illinois – 378 US 478;
xvii) Rhode Island v Innis – 446 US 291;
xviii) In Re-gault – 387 US 1, 21.
2
Reading Material:
i) Police
ii) Prosecutor
iii) Defense Counsel
iv) Courts
1. INVESTIGATION
3
Muhammad Bashir vs. SHO – PLD 2007 SC 539
Powers of Police Officers are great and caution is needed in their uses:
Culmination of Investigation;
4
Opinion of the police under Section 173 is not binding on Court;
Reading Material
1. The Code of Criminal Procedure, 1898, with special reference to the Sections
mentioned above
2. Norwest Holst (1978) 3 All ER 280
3. Brig Imtiaz Ahmed – 1994 SCMR 2142;
4. Miranda – 384 US 436;
5. Blackburn – 361 US 199;
6. Bazal Ahmed – PLD 1957 Lah. 388
7. Muhammad Siddiq – PLD 1992 Kar. 388
8. Nazir Ahmed – PLD 1978 SC 236
9. JC Shah – AIR 1969 SC 1014
10. Ghulam Sarwar – 1984 P.Cr. L.J 2588
11. Khan Asfand Yar Wali – PLD 2001 SC 601
12. Azmat Ali – PLD 1999 Pesh 39;
13. Bahadur – PLD 1985 SC 62;
5
14. Waqar-ul-Haq – PLD 1988 Lah. 336, 1988 SCMR 1428;
15. Ajaib Singh - AIR 1953 SC 10
16. Access to Justice in Pakistan by Justice (Retd) Fazal Karim, PP 176-189
17. Judicial Review of Public Actions by Justice (Retd) Fazal Karim, comments under
Article 9, 10, 13, 14 and 24 of the Constitution
2. Inquiry
Inquiry
a) Under Section 145 and orders under it are subject to decree or order of civil Court
b) Under Section 174 may result in inquest by Magistrate
c) Under Section 176 when a person dies while in the custody of police
Reading Material
3. Prosecution
The role of the prosecution and his relations with public and court;
Recent 2006 Provincial legislations establishing criminal prosecuting service in each
Province;
Defence Counsel: His duties to client and Court
Reading Material
6
4. TRIAL
Parties
The system of judicial procedure is, generally speaking, adversarial, Criminal law
is an aspect of public law, and the parties are the state, as the representative of
society, on the one side and the person accused, on the other.
The Islamization of the laws has assigned some role to private parties in some
cases.
- Gul Hassan – PLD 1989 SC 633
- Matlub Hussain – PLD 1951 FC 115
Trial
Its meaning;
Its object
What is fairness
Summary Trials
Regular Trial
7
b) Cognizance of offence - Cr.P.C Chapter XV, sub chapter B, Sections 190-199B;
c) Procuring the attendance of accused – Section 204, 205 read with Section 90
Cr.P.C
d) Other matters;
i. Supplying copes of statements etc. to accused
- Pulukuri – 74 IA 65
- Faiz Ahmed – PLD 1960 SC 8
- Taj Muhammad – PLD 1976 SC 234
e) Right to Counsel
It is part of fairness
f) Procedure where there is a Challan and a private complaint for the same offence:
8
Commencement of Trial
Adjournment is discretionary
Adjournment for an indefinite period
Charge
What is a charge, form and language etc. of charge – Sections 221 to 240
Cr.P.C
Illegality and irregularity – in charge; effect, Sections 225,, 535, 537 Cr.P.C
When the charge is admitted – Section 243 and 265 Cr.P.C plea of double jeopardy
goes to jurisdiction and charge is the stage to raise it – Article 13 of the Constitution;
Section 403 Cr.P.C and Section 26 of the General Clauses Act
Trials before High Court and Court of Session – Chapter XXII-A Cr.P.C – General
provision as to trials inquiries – Chapter XXIV Cr.P.C
9
Compounding Offences:
Its use:
By Culprit:
- If it contains confession of guilt against the culprit himself
- Muhammad Saleh – PLD 1965 SC 366
- A. Nagesia – AIR 1966 SC 119
- Against others – Ghandal – PLD 1960 SC 137; Salman Shah PLD 1971 SC 751
10
- One made under Section 161 Cr.P.C can be used for contradicting witness,
Section 162 Cr.P.C
- Police diaries cannot be used as evidence at all; but can be used by the Court,
Section 172, Cr.P.C
- Section 164 Cr.P.C read with Section 244-A and 265 J Cr.P.C
It is evidence and can form basis of conviction – Reg V Osman (1881) 15 Cox CC 1,
3:
Zarif – PLD 1977 SC 612, 617
Its reliability:
11
Under Section 342 Cr.P.C Section 5 Oaths Act, 1873;
At any stage
After prosecution evidence is closed;
The accused “shall” give evidence on Oath – Section 340 (2) Cr.P.C to be read with
Article 13 of the Constitution
Defence Evidence
The accused has a right to have witnesses and documents summoned in his defense e.g.
Section 265F, and Section 540 Cr.P.C
12
Arguments
Final Order/Judgment
i) Section 247 Cr.P.C – when the complainant does not appear on the date of
hearing;
ii) Section 248 Cr.P.C when the complainant withdraws the case;
iii) Section 249-A, 2650K Cr.P.C when the Court consider that the charge is
groundless or no probability of conviction
iv) Section 345 Cr.P.C when an offence mentioned in that section has been
compounded
The judgment is a written judgment with reasons, Section 366 to 369 Cr.P.C
Judgment of acquittal
Judgment of conviction;
13
Sentencing
On sentence generally
Appeals
An appeal
i) must be expressly provided; Section 404 Cr.P.C
ii) is a continuation of the original proceeding where a cause is re-heard
Appeals
By the public prosecutor, Section 417 (1) and Section 411-A Cr.P.C
By the complainant, Section 417 (2) Cr.P.C
By any person aggrieved, Section 417 (2A) Cr.P.C
14
ii) When not so dismissed, record to be summoned and notices be issued – Section
423 (1) and 428
iii) No power to dismiss an admitted appeal for non – appearance;
iv) May suspend operation of order, Section 426 Cr.P.C
v) May dismiss the appeal; Section 423 Cr.P.C
vi) Reverse etc. the order under appeal, Section 423 Cr.P.C
Death of accused, its effect is that appeal abates, Section 431, Cr.P.C
Revision
Bail
15
Pre-Arrest Bail
It is an extraordinary power-
Habeas Corpus
16
Under Section 552 Cr.P.C power of the Session Judge;
Under Section 491 Cr.P.C power of the High Court;
To be read with Article 199 (1) (b) (i) of the Constitution.
Double Jeopardy
The principle – no one shall be twice put in jeopardy for the same offence-
Reading Material
By
17