Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara

Pausa 24, 1931, at 07:11:56 PM

Course Contents:

1. The Criminal Procedure Code, 1898 (Act V of 1898) as amended upto date.

Books Recommended:

1. The Code of Criminal Procedure, 1898 by Muhammad Mahmood-ul-Hassan.

2. The Code of Criminal Procedure with commentary by Muhammad Mazhar Hassan Nizami.

Crime or offence is an illegal act or omission prohibited by and punishable at law; and for
which a special procedure is provided at law to punish the offender.

Mens rea and actus reus are the essential elements which constitute crime. Under the provisions
of Constitution any law which is in conflict to Islam is null & void. No law can be passed which
contravene to Islam. Fundamental Rights are also protected under Constitution. No one can be
deprived from his Fundamental Rights of movement.

Arrest: To arrest a person is to deprive him of his liberty by some lawful authority for the
purpose of compelling his appearance to answer a criminal charge, or as a method of execution.
Arrest is restrain of movement or liberty.

Offences are classified under law. Some are compound-able & non-compound-able, cognizable
& non-cognizable, bail-able & non-bail-able etc. There are certain exemptions in such
classifications. Some are exempt from arrest or detention.

Cognizable offences: Cognizable offences are those in which police can take action without
having warrant from Magistrate keeping in view of the gravity of the offence committed or likely
to commit. Only serious crimes such as murder or injury or such like offences come under
cognizable offences. Schedule 2 of Code of Criminal Procedure determines whether which
offence comes under cognizable. Bail is not granted in cognizable offences. Private person can
also arrest the offender. He may either take offender to Police Station or informs Police Officer
regarding his apprehension.

This section provides powers to police to apprehend the offenders even than offence is not
committed but merely it is designed to commit. Where there is apprehension of the commission
of the crimes, police may take action to prevent the commission of crime. Law does not wait the
commission of crime. It is killed before its birth. The only caution, which the Police Officer has
to take, is that he is to be satisfied that the commission of the offence could not be otherwise
prevented. Object of this action is to prevent commission of cognizable offence by arresting
person before hand who intends to commit such an offence. Police Officer arresting such a
person must have knowledge that he had designed to commit a cognizable offence.
The law on preventive detention only authorizes a Police Officer of the requisite rank to arrest a
person whom he reasonably suspects of having done or of doing or of being about to do a
prejudicial act. Whether the suspicion is reasonable or not, is a justice-able question. The
arresting officer therefore has to satisfy the Court that he entertained his suspicion against the
detention on reasonable grounds.

A mere apprehension of breach of peace does not entitle Police Officer to arrest a person u/s 151
of Code of Criminal Procedure. There must be some material before the police that the case was
one of emergency and that without arrest the commission of offence could not be prevented.

Arrest without warrant u/ss 54 & 65: Police can arrest a person without obtaining warrants
from the Court under following circumstances:

1. Cognizable offence:

2. Vagabonds (wanderer):

3. Habitual robber:

4. Preventive detention:

5. Offences committed before Magistrate:

6. Suspect of offence:

7. Injury to public property:

8. Reasonable suspicion of crime:

9. House breaking:

10. Proclaimed offender:

11. Having stolen property:

12. Causing obstruction in police duty:

13. Escaped person:

14. Attempt to escape from lawful custody:

15. Life beyond reasonable sources:

16. Private arrest:

Non-cognizable offences: Offences, which are not cognizable, are non-cognizable. Police
requires prior warrant to apprehend the offender. Private person cannot arrest the offender who is
committing the offence. Private person may inform police authorities about the commission of
offence but he himself cannot take actions. In sum, non-cognizable offences are vice versa of the
cognizable offences. Serious crimes do not come under non-cognizable offences.

U/s 155 of Code of Criminal Procedure it not obligatory for police to register First Information
Report in first instance. However information is recorded in diary kept in Police Station. It is
also called Rozenamcha. Information of the offence committed is referred to concerned
Magistrate. Investigation is made after the approval of Magistrate in the manner prescribed for
cognizable offences. However police cannot arrest the offender without having arrest warrants.
Police is liable to make investigations upon the supply of information of the commission of non-
cognizable offence. These investigations may take time in its completion. Police register the case
as First Information Report upon the completion of investigation and found it liable to register.
Time consumed in investigation does not effect the genuineness of the case. Detention of the
offender without permission of Magistrate is illegal thus prohibited. Police is liable to pay cost
when acts without jurisdiction.

Bail: An accused person is admitted to bail when he is released from the custody of officers of
the law and is entrusted to the custody of person known as his sureties, who are bound to
produce him to answer, at a specified time and place, the charge against him, and who, in default
of so doing, are liable to forfeit such sum as is specified when bail is granted.

Bails are sureties for the accused, who enter into recognizance for his appearance, he also
entering into a similar recognizance.

Bail therefore means the contract whereby the accused is released to his sureties, and also the
sureties themselves. A contract, whether by a person bailed or by a third party, to indemnify a
surety is void as being against public policy and is a misdemeanor. It is release or handing over
of the accused from the custody of law.

Petty offences are subject of bail as the petty ailment allows mixing with others till severity of
ailment.

Person who does not care of law and becomes beast requires to behind the bars. His offence does
not come under the bail-able offences. Good place for the animals is cage.

There are certain provisions of law, which provide grounds for the bail against serious crimes,
e.g., during the pendency or revision of case till two years case comes under bail-able offence.

If the accused is not responded till two years in a case punishment of which is ten years, bail can
be prayed.

No Court shall grant bail in serious crimes such as death unless there is reasonable ground to
grant bail. Offences punishment of which is life imprisonment are also treated in the same
manner.

There are some crimes compound-able (to agree to accept a composition) and some are non
compound-able. To ensure constitutional guarantees no one can be deprived from his vested right
in due course of law. No offence should be committed against body and property. If the offences
are committed then state is responsible to compensate by state created law-enforcing agencies.
Police is watchdog of the people. They have to protect people in streets and roads. They perform
their duties in streets, roads, on cycle, on foot but practically crimes are committed under the
garb of law. Where there is police there is crime. If crimes are committed the accused is tried and
witnesses are provided by state. Government also ensures evidence. Victim has not to pay
anything. Commission of crime is negligence of police. Efficient performance reduces the
magnitude of offences. If vigilance is observed then amount of offences can be reduced.

There are certain satisfactions against offences. One of them is punishment or taking law into
hands. But the greater and bigger satisfaction is pardon. Pardon is granted in the particular
crimes, which are compound-able. When a person is killed without lawful justification then a
pedigree tree is cut down. No person remains left to carry on family. Compensation is granted
keeping in view of the financial condition of the criminal. Compensation is no fine and
something apart from fine. Compensation is provided if the status of offender is proved.

Petty offences are bail-able. But the crimes, which are committed against the society or groups of
persons or state, they do not bear compound-ability. Government has to run the affairs of state.
We see that murder is compound-able but violation of signal is not compound-able. Since it is
against society and government has no right to compound it. Even fine of Rs. 200/- is imposed
but pardon is not granted. Its remittance may cause abundance (plenty, flood) of crimes.

Small matters should be dealt with mutual understanding of the parties concerned. Forgiveness
or pardon is another source of getting satisfaction. It promotes the factors of responsibility and
humanity. If anybody gets furious or wild, other one should avoid irritating him more. He should
sit or take little amount of water. It not only mitigates the emotion of hate but also promotes the
passions of harmony. During the state of love nobody gives divorce to his wife. Only hate makes
it possible. Soft and polite is result of love and affection.

Person who brings his sister to other person cannot claim provocation if she is seen with the
person who is alien. There is exception in rule to adopt little wrong for bigger good thus its
commission would not be crime. When children quarrel, parents do not take care, it but they feel
when they quarrel at the age of youth. In the cases where compound-ability is not allowed party
may withdraw her case after reaching the state of compound-ability. Bail-able crimes are also
compound-able but not in every case. Nobody can be deprived from his legal right of liberty
until convicted. Washing of hands can wipe dust but in some cases mere washing becomes
insufficient. When a person becomes brutal then he is kept in different place. Similar dose is
required to cool down him.

Bail application/petition can be decided even in the absence of accused at later stage on merits
either he is ill. Reliance is placed on 199 MLD 976, 1981 P. Cr. L. J. 61, and 2000 P. Cr. L. J.
138.

Matters to be considered for grant of bail: Following points are considered:

1. Whether there are reasonable grounds for believing that the accused has committed the
offence.

2. Nature and gravity of charge.

3. Severity of punishment in case of conviction.

4. Apprehension of abscondence when released on bail.

5. The Character, the means, and the standing of the accused.

6. Danger of witnesses being tampered with.

7. Opportunity to the petitioner to prepare his defence.

8. The period for which the petitioner has been in jail and when the trial is likely to conclude.

9. Whether the petitioner is named in FIR or his description is given in it.

10. Time taken in the lodging the FIR, whether prompt.

11. Whether the accused is previous convict.

12. Whether reasonable possibility of false implication of the accused/petitioner cannot be ruled
out. PLD 1997 Kar. 165 Sajjad Hussain.

13. Every accused is presumed not to be guilty.

14. Process of trial should not to be allowed to be defeated.

15. Possibility of commission of further offence to be safeguarded. PLD 1963 Lah. 279 Iqbal.

16. In cases of offences, punishable with death, imprisonment for life or imprisonment for ten
years.

1) Benefit of reasonable doubt.

2) Identity of the accused.

3) Part allegedly played by the accused in the occurrence.

4) His presence at the spot and question of vicarious liability would be considered at bail
stage. PLD 1995 SC 34 Tariq Bashir etc.

17. Allegations made in FIR.

18. Statements made in FIR.

19. Other incriminating material against the accused.

20. Plea raised by the accused. PLJ 1997 Shariat Court (AJK) 23, Muhammad Sadiq v.
Muhammad Arshad.

21. Statute carrying, lesser punishment to be considered for the purpose of bail when accused is
charged under two different statutes. PLJ 1996 Cr. C. (Pesh.) 1277 Ghani-ur-Rehman.

First Information Report: Government has set up different agencies to comply with
constitution. Police is watchdog of the public. Police patrols in street to street, bazaar to bazaar,
road to road etc. Police ensures the right of liberty of person. They protect them from violence.
Protection of life and property is right of people which law enforcing agencies protect. Every
cognizable offence must be reported to police. Areas are divided into small pocket for effective
control over offenders. Law enforcers have to look into matters relating to violence. Police has to
maintain each and every thing. Police is servant. When offence is committed, police must be
informed immediately. It is cognizable by the Police Officer in whose jurisdiction offence is
committed. In-charge of police station is termed as Station Housing Officer. Police Station may
either be tent, vessel, or building. It must be notified and identified.

First Information Report is simply information for commission of an offence to move the
concerned agency. It is not essential to give all details regarding the commission of an offence.
The term “First Information Report” is construed as the earliest communication or intimation of
crime to the state agency, to set it in motion to undertake investigation.

A third person may make the information or an eyewitness, as the primary object of such
information is to move the machinery in action to undertake inquiry and investigation in the
alleged crime. Everything is taken into custody upon apprehension, e.g., wristwatch, blood
stained clothes, weapon of death, papers, and all other necessary articles etc.

Police officials are under statutory obligation to enter the information relating to the commission
of a cognizable offence in the prescribed register. Refusal violates mandatory provision of S. 23
of Police Act. Police Officer should first register a case and then form an opinion whether the
facts stated in First Information Report are true or not. Fate of accused nominated in First
Information Report cannot be solely decided on the allegations made in the First Information
Report. Merely by making allegation against a person with regard to commission of a particular
offence does not make a person accused of that allegation until and unless some evidence
connecting the person with alleged crime is collected by the investigating agency. First
Information Report cannot be treated as a substantive piece of evidence, it is only meant for
corroboration or contradiction.

Oral information: Police Officer has to register case where oral information conveyed about
commission of offence. Information received by telephone or telegram is also relevant. Later on
informer may be called for putting signature on First Information Report but as far as recording
of the First Information Report is concerned it must be brought on record. Written information is
immaterial.

Where passerby gives information of commission of offence and unknown source reveals the
commission of crime, Police Officer may himself is duty bound to visit the place of occurrence.
Essentials of First Information Report: Following are the essential of First Information
Report:

1. Information of cognizable offence.

2. If the information is given verbal, it must be brought on record.

3. If the information is received in writing, it must be entered on register.

4. It must be read out to the complainant for his satisfaction.

5. Recording of First Information Report within shortest possible time. Delay leads to doubt.

6. Use of proper channel, i.e., Police Officer cannot record First Information Report at the
residence of victim.

7. It must be signed where it is possible.

8. One copy to maker of First Information Report.

Process of the criminal trial: Following points are important in the criminal trial:---

1. Offence and its gravity.

2. Lodging of FIR.

3. Arrest of accused from certain place.

4. Remand or bail.

5. Statements u/s 161 of Cr. PC.

6. Recovery memos.

7. Injury report.

8. Dockets.

9. Application for MLR.

10. Medico legal Report in case of injuries.

11. Application for PMR.

12. Death report.

13. Post Mortem Report in case of death.

14. Laboratory reports such as Chemical Examiner, Serologist, and Forensic Laboratory.
15. Handing over dead body and its acknowledgement.

16. List of witnesses.

17. List of heirs.

18. Site plant with and without scale.

19. Challan.

Importance of First Information Report: Following points can be described in order to

underline the need of First Information Report:

1. Base of trial: It sets the law into motion to trace out the law breakers.

2. Immediate recording: It immediate lodgment strengthens its trustworthiness.

3. To set criminal law in motion: It set the law into motion.

4. Collection of evidence: It leads to collect evidence against the offence.

5. Public document: It is a public document and every citizen may obtain it.

6. Registration through writ: Where there is refusal by the police, it can be get registered
through writ petition.

7. Once recorded cannot be quashed: It cannot be quashed except as procedure defines.

Motive: Fact regarding motive not be fully explained in First Information Report. Its enquiry
may cause in the escape the offender thus on investigation. First Information Report is starting
point to put law-enforcing agencies into motion in criminal proceedings.

Supplement First Information Report: First Information Report cannot be changed when once
recorded but it can be supplemented if the material fact is omitted or later on reveals. It can also
be withdrawn at any stage of proceedings before final judgement. It can be got corrected.
Counter First Information Report can be got recorded within the same Police Station of the
jurisdiction. It is not substantive piece of law. Second step cannot be taken without registration
of FIR. Where subsequent step has been taken, i.e., investigation or trial, right of supplement FIR
extinguishes.

Recording outside Police Station: Where First Information Report is recorded outside the
Police Station, it is disapproved by the High Court thus it can be got registered within the
premises of Police Station.

False information: Police is under obligation to register the case u/s 154 of the Code of
Criminal Procedure. Its refusal leads proceeding under Article 199 of the Constitution in High
Court. Session Judge is supposed the chairman of the human rights in the district. Complaint can
also be lodged in the Court of Session. It shall not be out of place to express that through the
introduction of S. 182 of Pakistan Penal Code. The Legislature has placed the check and
introduced the balance by making liable the complainant u/s 182 of Pakistan Penal Code if the
information given by him is ultimately found to be false during the investigation. Investigation
whether the information given is true or false is second step of First Information Report. Whether
it is true or false is not base of non-recording of it.

S. 211 of Pakistan Penal Code imposes punitive action against the person who institutes criminal
proceedings or makes a false charge against innocent person to cause him injury. S. 218 of
Pakistan Penal Code is also punitive action as against the person who commits forgery in
documents to save wrongful person from punishment.

Who may get registered FIR: Any person either victim, his relative, passerby, neighbour,
friend can get First Information Report registered. Presence of victim is immaterial. It cannot be
used against the informer as confession. Confession before Police Officer is irrelevant unless it is
made before competent Court. It is neither comprehensive document nor minute details can be
supplied. It merely spells out the occurrence of incident. Name of accused can be mentioned if
known, but if it is not known, it becomes immaterial. First Information Report should be got
recorded promptly without losing time. Lapse of time causes suspect in the truth of the
occurrence. If delay is explainable then it does not matter, however, immediate report
strengthens the case.

Constitution of Complaint Cell: Under the provision of the Code, there is no scope of First
Information Report constitution of any Complaint Cell and the Cell has no competency to
encroach upon the powers of the Court. U/s 169 of Code of Criminal Procedure when it appears
to Police Officer conducting investigation that there is no sufficient evidence available to justify
the forwarding of the accused in custody to the Magistrate, he may only release him on executing
a bond with or without surety but is no empowered to omit the name of the accused from challan.

Complaint: Complaint is not used in its ordinary words. It is an allegation made orally or
writing to a Magistrate, with a view to his taking action under Code of Criminal Procedure, that
some person whether known or unknown, has committed an offence, but it does not include the
report of a Police Officer.

A complaint in a criminal case is what a plaint is in a civil case. It is one of the modes in which a
Magistrate can take cognizance of an offence.

Report to police may be either oral or written. Everybody does not know the art of writing. When
offence is committed and informed to police, police is obliged to:

1. Convert oral statement into writing.

2. Every written statement must be read out before the person who takes it into the notice of
police, if he is illiterate.

3. It is signed or thumb impression is affixed.

4. Blank space is not left so that it may not be manipulated.

5. It is prepared in quadruplets and one of each is delivered to individual who informs to police,
second one is sent to Magistrate, third one is sent to Superintendent of Police, and fourth one
is kept in Police Station.

Recording of wrong statement itself is offence u/s 182 of Pakistan Penal Code. It may either be
partially right or wrong. Upto the extent of wrong, the person arrested shall be released
immediately if the evidence is not produced.

First Information Report does not follow any specific format or wording. It may be written. It is
reproduced in official register. Sometime written statement itself is pasted on official register
after making some necessary transactions.

Registration of First Information Report cannot be denied. Denial may put maker into writ
petition. Writ is issued for necessary registration.

In the absence of Station Housing Officer, next to him is delegated powers of Station Housing
Officer. But in any case common police man cannot be delegated the powers of Station Housing
Officer. Head Constable is the last person who may be delegated the powers of Station Housing
Officer.

U/s 154 of Code of Criminal Procedure it is obligatory for police to register First Information
Report regardless its genuineness. This section applies on cognizable offenses only.

Investigation u/s 156: Police may make investigation without having permission of Magistrate
in cognizable offences. Action of police is protected u/s 156.

Procedure where cognizable offence is suspected u/s 157: When Police Officer suspects that
cognizable offence is likely to commit or designed for commission, he may with the permission
of Magistrate investigate the matter for its prevention. First Information Report is not recorded in
first instance until sufficient proof received by mean of investigation or report of expert.
Preliminary inquiry is made on spot. In order to ascertain the commission of offence, samples
may be sent to expert for laboratory analysis. Further step cannot be taken without permission of
Magistrate.

Reports u/s 157 how submitted u/s 158: Every report, which is liable to send to Magistrate,
shall be communicated to him through superior officer of police as government prescribes. Such
superior officer may give instructions to the in-charge of Police Station, as he thinks fit, and
transmit the same to the Magistrate, without delay.

Power of police to require the attendance of witnesses u/s 160: Code of Criminal Procedure
empowers the Police Officer to require attendance of witnesses before himself of any person
within the limits of his Police Station, who appears to be acquainted with the circumstances of
the case. The order must be in writing. The Police Officer under this law has not been authorized
to require the attendance of an accused person with a view to his answering the charge. A person
who fails to comply with order of the police may be prosecuted for disobedience u/s 174 of
Pakistan Penal Code.
Examination of witnesses by police u/s 161: Statement recorded u/s 161 does not require to
sign by the maker of the statement. Statements recorded u/s 161 are not substantive piece of
evidence. These statements cannot be used for the purpose of corroboration. But accused can use
them in order to maintain discrepancies in its recording. According to the ruling of High Court
statement recorded u/s 161 is not evidence, legal, or substantive. It is not even admissible against
its maker nor can furnish a base for trial or conviction. But it can be used for contradicting the
statement of a witness and test the degree of its authenticity and for no other purpose. Such
statement cannot be used to corroborate or explain any part of prosecution evidence. Finding of
guilt recorded on the basis of statement cannot be accepted as correct. Omission of a fact from
such statement does not amount to contradiction. Statement of witness recorded in Court on oath
has to be given preference over a statement u/s 161. Police can make recommendation to release
accused, but cancellation of First Information Report is not subject of police.

Where there are two sets of accused in a single First Information Report, they both shall be tried
separately. Where two First Information Reports are got recorded, it is well and good but where
there is single First Information Report, they shall be tried separately.

Power to record statements and confessions u/s 164: There are two types of confession, i.e.,
judicial confession and extra judicial confessions.

Judicial confession: Confession recorded in compliance with provisions of Ss. 164 and 364,
Code of Criminal Procedure becomes judicial confession to which law attaches great sanctity
being free from duress (coercion) and undue influence. Judicial confession, which is self-
exculpatory, cannot be used against other person. Trial Court also can record confession which
extra judicial confession at any stage.

No person can be convicted solely on only confession. When father kills but son makes
confession is not acceptable under law. There is no pressure in such a situation, but it is untrue.
High Court and Supreme Court do not take it into consideration.

Following formalities have to be observed by the Magistrate before recording judicial

confession:

1. When any accused discloses his intention to record a confessional statement, the first act
of the Magistrate is to remove the handcuffs of the accused if he is in handcuff.

2. The police officials present inside the Courtroom are to be immediately turned out from
the Courtroom.

3. The Magistrate has to explain to the accused that he is appearing before a Magistrate.

4. That the accused is not bound to make any confession and if he makes any confession it
may be used against him and he may be convicted on its strength.

5. The Magistrate has to ask the accused if police had used any coercive method to obtain a
confession from him.
6. The Magistrate is required to give sufficient time to such accused to ponder over the
matter.

7. Thereafter the Magistrate has to again ask the accused whether he is still willing to make a
confession and on his reply in the affirmative he may record the confession.

8. Thereafter the Magistrate has to remand the accused to judicial custody if he is in

handcuff.

9. Even after recording the confessional statement of the accused the Magistrate is required
to record some prosecution evidence in corroboration of the confession.

10. It is also mandatory that the Court should record a statement of the accused u/s 342 of
Code of Criminal Procedure wherein he may be asked the question whether he had made
confession voluntarily or whether he had made the same under coercion or duress.

11. When the accused had refused to plead guilty at the time of framing the charge and he
wants to make a confession thereafter, conviction should not be based on the sole
confessional statement of the accused but some corroborated prosecution evidence must be
recorded.

12. Can be used against maker of it.

13. Can be made in the presence of Magistrate.

14. Reading over to its maker.

15. Certification of Magistrate.

16. Signature.

17. Name, date, and designation.

Confession itself is not defined either in Code of Criminal Procedure, Pakistan Penal Code, and
Qanun-e-Shahadat. It is taken into ordinary legal language. Accused is not handed over to police
after he makes confessional statement according to the provisions of law. Accused is sent to jail.
If accused is not sent to jail, all proceedings become null and void.

Although the law of conviction on confession is there and Courts are at liberty to do so, but on
the other hand it is unanimous decision of superior Courts that no one shall be convicted solely
on confession. In certain cases, confession may be recorded without putting any force or
coercion, but the statement passes is not true. Where father commits murder but his son comes to
Magistrate admitting the alleged murder. In such a case, there is not external pressure on son and
all the formalities are fulfilled to record the statement of accused, but the statement recorded is
not true, therefore, conviction solely on confession becomes injustice. Confession requires
corroboration from any independent source before conviction.
In a case of Muhammad Amin v State, a young lady Miss Sughran of six years came to call on
her relatives. In a morning, she went out to play but did not come back till long. During tracing
out her, her dead body was found. Muhammad Amin was alleged accused. He confessed being
murderer. Death sentence was given to him. In appeal to High Court his punishment was upheld.
But Supreme Court set aside punishment being without corroboration.

Retraction of confession: Retracted confession, whether judicial or extra judicial, can legally be
taken into consideration against the maker of those confessions and if the confessions are found
to be true and voluntary, then there is no need at all to look for further corroboration, if the Court
is satisfied and believes that it was true and voluntary and was not obtained by torture or
coercion or inducement. It is a settled rule of evidence that unless a retracted confession is
corroborated in material particulars it is not prudent to base a conviction in a criminal case on its
strength alone.

A retracted confession is admissible in evidence provided it is determined to have been made

voluntarily and freely and is fully corroborated by authentic evidence as regards factum (an act
or deed) of crime and accused’s connection with the said crime.

As the accused may at any time of trial make confession, may retract at any time before the final
judgement. Where a confession is made before a common man, but he was Magistrate, may be
retracted.

Admission and confession: When a person kills a person and admits whether he has committed
such offence is confession. But where he says that I have committed such offence but it was
committed in self-defence is not a confession. Thus confession must be unconditional.
Admission does not follow any special procedure as is in the confession cases.

A proper procedure is provided under law to record confession. It may either be made before
Magistrate of competent jurisdiction or before police where recovery is made upon on his
statement.

Although it is not legal, but the word “admission” is used generally in civil cases and confession
in criminal cases.

Extra judicial confession: Extra judicial confession is the weakest type of evidence and
normally cannot be made basis for conviction unless coming from unimpeachable source and
being corroborated by independent evidence. Great care is to be taken in placing reliance upon
this piece of evidence, which requires the three-fold proof. Firstly, it is made, secondly, it is
voluntarily made, and thirdly it is true.

Where prescribed formalities, which aid in ascertainment of voluntariness of confession are not
available in respect of extra judicial confession, such confession had necessarily not to be given
that much of weight which is accorded to judicial confession. Extra judicial confession is
admissible in evidence and if material on record could lead to conclusion that it had been made
voluntarily and is true, its probative value would be the same as that of one recorded u/s 164, as a
matter of caution and prudence, would require special material evidence which connected
accused to the crime apart from such confession.

Quashment of FIR u/s 561 – A: Law gives inherent powers to High Court where express law is
not available. Judiciary should not interfere with the police in matters, which are within their
domain and into which the law imposes upon them the duty of enquiry. Functions of the
judiciary and the police are complementary not overlapping and the combination of individual
liberty with a due observance of law and order is only to be obtained by leaving each to exercise
its own function. Functions of the Court begin when a charge is preferred before it and not until
then.

However FIR can be quashed by High Court in its writ jurisdiction when its registration appears
to be misuse of process of law. Only High Court can quash FIR at any stage of trial. Where
investigations have been completed u/s 173, police or Magistrate cannot cancel FIR u/s 173(3).
Although the word of cancellation has not used, but where report says 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.

Rozenamcha (BÃkËi): It is document in which each and every movement of the police
station is entered. If Station Housing Officer leaves the Police Station, policemen come back
from patrol, any information of non-cognizable offence is entered in Rozenamcha. In fact every
movement of policemen is endorsed in this document. Where this document remains unfilled and
during the checking it is discovered, it is taken seriously and the person liable is warned. Casual
treatment with it leads to strict action.

Machlqa (‡¿) is also termed security or personal or bail bond. Person charged is liable to
provide it for the grant of bail.

Whenever cognizable crime is committed, it is put into First Information Report. Public is not
required to cater information to police. People are not required to report each and every incident
to police if it is cognizable. Investigation cannot convict. It is mere source of collection of
evidence, which may convict accused, but it is duty of Court. Police Officer cannot convict
accused. He is just required to collect evidences, which are to be produced in Court.
Investigation is conducted at the cost of government. If the case is registered and challan is
submitted and person who made information is not satisfied with the investigation agencies may
withdraw. Police may have join hand with accused. Arrest of innocent person provides ground
for the acquittal of the persons actually involved in crime. Person who is unsatisfied with
investigation may put writ petition then prosecution shall be based on petition and not on challan.
Investigation shall be put into gutter. Court cannot take action if the case is not within its
jurisdiction even offence is cognizable. Competency of Court is important while institution of
case.

Inquiry, investigation, and trial are all sources of collection of evidence against the crime
committed. It may either be for or against prosecution. It is mere try to reach to truth thus
conclusion. It explores the reality of the report registered in Police Station. Judicial inquiry is
another method of inquiry but its copy can neither be demanded nor provided. Parties are not
entitled of copy of investigation. Hamood-ur-Rehman Commission Report is good instance of
inquiry, which is concealed so far from public. As far as investigation is concerned, several
agencies such as police, FIA, crimes branch, intelligence, or FBI may be involved.

Trial is also collection of evidence. Copy of evidence is provided to accused prior seven days
from its finality. It also can be demanded. It helps in defence. Surprise cannot be given to
accused.

High Court: It is constitutional Court with inherent powers and authority of jurisdiction. Suo
motu is another power of High Court. It is just an eye on agencies. It is also Court of revision,
original jurisdiction, appellate, and record. It is Court of original jurisdiction in certain cases
where high personality is involved. It has power to give each and every sentence. No limitations
are imposed on it except under law. Sentence of Session Court is not executed until High Court
confirms it. U/s 374 of the Code of Criminal Procedure sentence of death is submitted to High
Court for its confirmation. High Court can reverse acquittal. All appeals are made to High Court.

Supreme Court works under constitution. No appeal lie in Supreme Court unless leave is granted
by Supreme Court and mostly leaves are not granted. High Court sometimes acts as Court of
original jurisdiction. Judgement of High Court attains finality if Supreme Court rejects appeal.
Supreme Court does not grant leave in normal circumstances unless question of law is involved.
S. 435 grants supervisory powers to High Court and Session Court to call and examine record
from respective lower Courts. It leaves good gesture on the part of judiciary and enhances
efficiency of the judiciary of lower rank.

Original jurisdiction: Highest appellate Court of original jurisdiction. In certain cases High
Court has original jurisdiction where high-class personality is involved, i.e., Bhutto case.
Request must be moved for trial to be taken in High Court.

Constitutional jurisdiction: It has five constitutional jurisdictions such as, mandamus,

prohibition, habeas corpus, quo warranto, and certiorari etc.

Power to dispense with personal appearance: Case can be tried in the absence of accused.
Justice cannot be delayed as it denies the justice. Courts have power to exempt any accused to
appear personally if sufficient cause is shown in case. His pleader may appear in his place. This
power is provided u/s 116, 205, and 540 – A of the Code of Criminal Procedure. If the
complainant does not appear before Court at the date of hearing, it is assumed that he is no more
interested in litigation and case is dismissed. This rule also has some exceptions. He may be met
with an accident. He may be admitted in hospital.

Superintendence of subordinate Courts: High Court has supervisory and controlling authority
to all over the subordinate Courts.

Use of inherent powers: High Court can grant bail in non-bail-able offences in exercising of
inherent power u/s 561 – A and not u/s 497. Where some relief is due but not available under any
procedural law there inherent power of Court comes into action and provides remedy. Following
are the inherent powers:
1. Correction of error:

2. Correction of its own error:

3. Enhancement of punishment:

4. Suspension of sentence:

5. Reduction of sentence:

6. Deletion of remarks:

7. Delivery of compensation amount: Police cannot stop the cheque prepared for the
compensation granted to widow.

8. Decision on subsequent by same Judge:

9. Bail:

Whether bail is right: S. 496 prescribes procedure for bail in bail-able offences. Grant of bail in
bail-able offence is a right while in non-bail-able offences, it is not a right but concession.

Bail in non-bail-able offence u/s 497: Following are the cases under which bail can be granted
even they are non-bail-able offences:

1. Where case of death penalty is pending since two years:

2. Where case of ten years’ imprisonment is pending since two years:

3. Where offender of death is under sixteen years’ of age:

4. Where offender of death is woman:

5. Where offender of death is sick:

6. Where offender of death is infirm:

7. One year’s pendency where offence is not punishable with death:

8. Doubt on non-bail-able offences:

a) Before judgement:

b) After judgement:

Grounds of bail: Following are the circumstances under which Court can grant bail:

1. As a right in bail-able offences:

2. Weaker:

3. Woman:

4. Minor:

5. Infirm:

6. Long proceedings:

7. Petty offences:

8. Bail-able offences:

9. Innocence of accused:

10. Fair trial:

11. Delay in lodging First Information Report:

12. Delay in trial:

13. Diyat cases:

14. Compound-able offences:

Conditions of bail: Following are the conditions on which bail is granted:

1. Bond:

2. Surety:

3. Appearance:

4. Remaining peaceful:

Concurrent sentence: It is punishment, which runs alongwith other punishments. If an offender

is awarded punishment for five years and in other offence he is awarded four years sentence,
both sentences shall be end after five years on the base of concurrence.

Consecutive sentence: It is punishment, which runs after completion of another punishment. If

an offender is awarded five punishments in one offence and two years in another offence, it shall
complete upon seven years.

Classes of criminal Courts: There are two classes of criminal Courts under Code of Criminal
Procedure namely:

1. Courts of Sessions.
2. Courts of Magistrates.

There are following the classes of Magistrates:

1. Judicial Magistrates:

a) Magistrate of the first class.

b) Magistrate of the second class.

c) Magistrate of the third class.

d) Special judicial Magistrate.

2. Executive Magistrates:

a) District Magistrate.

b) Additional District Magistrate.

c) Sub-Divisional Magistrate.

d) Special Executive Magistrate.

e) Magistrate of the First Class.

f) Magistrate of the Second Class.

g) Magistrate of the Third Class.

This is not the entire hierarchy of the criminal Courts. There are other criminal Courts
constituted under different law applicable in Pakistan such as Drug Courts, Custom Courts, LDA
Courts, Army Courts, Banking Courts etc. Code of Criminal Procedure is applicable in such
types of Courts.

Authority of Magistrates: There are certain classes of Magistrates with different powers such
as:

Classes of Magistrates Authority

Imprisonment upto three years including
solitary confinement as authorized by law.
Magistrate of First Class
Fine upto rupees fifteen thousand.
Powers to try all the offences not
Magistrate of First Class with powers of
punishable with death.
Section 30 of Code of Criminal Procedure
 Imprisonment more than seven years.
Imprisonment upto one year including
solitary confinement as authorized by law.
Magistrate of Second Class
Fine upto rupees five thousand.
Imprisonment upto one month.
Magistrate of Third Class
Fine upto rupees fifty.

Where any punishment which does not meet the end of justice shall be transferred to Session
Judge for further trial.

Assistant Session Judge: He may pass any sentence. He can pass imprisonment upto seven
years. He cannot pass death penalty.

High Court: High Court may pass any sentence authorized by law.

Arrest: It is a curtailment of freedom of movement. It also means submission to law by words.

To arrest a person is to deprive him of his liberty by some lawful authority, for the purpose of
compelling his appearance to answer a criminal charge, or as a method of execution. Handcuff is
no more necessary.

No woman can be kept in Police Station particularly in evening unless where arrangement of
lady Police Station is made.

Where offender runs away, no unnecessary power can be used to stop or arrest him. Reasonable
force can be used. Where infliction of stick is sufficient, fire cannot be used. Territorial
jurisdiction of police extends to any corner of Pakistan when offender escapes and runs away.
When offender is apprehended his things of common use such as wristwatch, money, vehicle etc.
are kept under custody so they cannot be damaged.

S. 59 of Code of Criminal Procedure gives powers to private person to arrest any person against
whom they have suspect that he has committed offence, which comes under non-bail-able
offences, and is cognizable. He must be handed over to police as soon as possible or should be
transferred to nearest Police Station. Person arrested must be produced/taken before Magistrate
within 24 hours.

Maximum detention: Police cannot keep accused with him beyond twenty-four hours u/s 61. If
the retention of accused is required for more than twenty-four hours, only Magistrate is
authorized person to allow such extension u/s 167.

Remand is not granted ordinarily in all cases except where is hardened criminal and there is
reasonable belief that sufficient time is required to reach on conclusion.

Physical remand cannot go beyond fourteen days in any case; thus a policeman can keep the
accused with him for maximum fifteen days including first twenty-four hours. Where police has
obtained fourteen days’ remand and nothing is kept on record, which shows the guilt of accused,
more remand neither can be demanded nor it can be granted. If demanded then can be refused on
the grounds of progress of the case.

If a person spends his life beyond his ostensible sources of income can be arrested to verify his
income sources.

If a accused commits different crimes in a time only one case shall be registered against him and
all his acts shall come under one crime and not under different crimes.

Every investigation must be completed within reasonable time and due to non-appearance of
witnesses it cannot be allowed to extend unreasonably. Non-appearance of witnesses is liable to
pay compensation to accused party because their delay is extension of the accused behind the
bars.

Process: Person who is wanted at law is required to produce before the authority so required.
Way to produce person before such authority is called process.

Issue of process u/s 204: This section authorizes to Magistrate to issue process to an accused,
where he takes cognizance on a private complaint or on a police report or any information or
knowledge other than a complaint or police report. Where a Magistrate does not dismiss the
complaint under the preceding section but forms opinion as to existence of sufficient ground or
proceeding, he has to commence proceedings against the accused by compelling his attendance
before the Court.

Unless the Magistrate “takes cognizance” as specified in S. 190, a process cannot be issued
under this section. Court u/s 204 of Code of Criminal Procedure can issue process to the accused,
on being satisfied about the existence of sufficient ground for proceeding against him.

According to the provisions of S. 204 of Code of Criminal Procedure as in vogue (custom, trend,
practice) in India, summons are issued for attendance of the person accused in a summons case,
while in a warrant case, Magistrate may issue a warrant. It is also provided in subsection (2) that
no process shall be issued unless a list of prosecution witnesses is filed. A copy of the complaint
shall accompany every summons or warrants. The real purport (meaning, design, gist) of such
provision is to give the accused person at earliest opportunity a fair idea of the allegations and
the persons who are likely to support those allegations. Such like amendment is necessary in the
code for public good and in the interest of justice.

Kinds of processes: Processes are four in number, i.e., summons, warrants, proclamations, and
attachments of land.

1. Summons: It is a written order for appearance in Court. It is a most simplest and common
way to produce the person required at law before authority. Court issues such orders under
the seal and signature. Summon follows the date, time, and place of appearance. This notice
is served to the person wanted at last known address. Summons are sent in duplicate one of
 which is given to required person and second one used as acknowledgement. It becomes
proof of service of summon.

All possible effort or due diligence effort is made to service the notice. Summon contains full
particulars of the wanted person. Summon is served to the person wanted during the time
when he is ordinarily available at the address last known.

In case his non-availability at the address known, summon is served to the male adult
member of the family. Summon is not served to females either mother, wife, daughter, sister,
or otherwise.

In the absence of any male adult family member, it is pasted at any conspicuous or prominent
place where it can come into his knowledge so that object of the summons may be fulfilled.
If mere its affixation may frustrate of law, then second page of the summon may be get
signed by any neighbour as a proof that notice has been served. Paste of the summons is the
ir-rebut-able presumptions that notice has been served. When summon is reached to the
requisite place, it is presumed that it has been served. Acknowledgement of the actual person
is not necessary. Any person can sign summon on his behalf.

2. Warrants u/s 90: Warrants are of two kinds, i.e., bail-able and non bail-able. It is wisdom of
Court to issue warrant either bail-able or non bail-able. Warrants are issued when service of
summon becomes insufficient.

In either case warrants server has to contact accused. In case of bail-able warrants he has to
give him opportunity to obtain bail. In other case he has to arrest the accused. In any
circumstances warrants server has to obtain bail or arrest the accused.

In case where person so required is leaving Pakistan and date of appearance may help him in
escape, non bail-able warrants can be issued. Purpose of warrant may not be defeated in any
case. Court which has issued bail-able warrants may recall her decision in changed
circumstances and may issue non bail-able warrants for early production of accused. Where
escape is apprehended there service of summon may frustrate and defeat the requirement of
law.

S. 90 is important because Court not only may issue summon or warrant but in the same
time, in certain cases, may issue both summon and warrant. Where Court is satisfied that
summon shall not serve the purpose or it shall remain insufficient, Court may issue warrant
in lieu of or in addition of summons.

S. 204 of Code of Criminal Procedure is related with issue of process. Court shall decide
upon cognizance whether summon or warrant is to be issued to produce person before Court.

3. Proclamation for person absconding (escape, run away, depart secretly or suddenly)
u/s. 87: Where summons and warrants could not serve the purpose and required person (not
accused) remains concealed or avoiding to appear in Court and Court is satisfied that there is
sufficient reason to take necessary steps, may issue written proclamation requiring him to
appear before Court. Following are the requirements of the proclamation:
 (1) Failure in compliance of warrant: A warrant should have been legally issued against
a person. Where the warrant issued by a Magistrate is without jurisdiction or does not
fulfil the requirements of law, the issuance of proclamation shall be illegal.

(2) Concealment of absconder: The Court is satisfied and there is reason to believe that
absconder is concealing himself to appear before Court where he is desired. There
should be sufficient evidence that required person (not accused) has failed to comply
with the requirement of law. Where warrant fails there proclamation is issued.

(3) Reading: It must be read out in some conspicuous place of the residence of the
required person. It is a place where he ordinarily resides.

(4) Affixation at home: It can also be affixed at his home place or homestead where he
resides ordinarily. Place where it is affixed should be conspicuous.

(5) Affixation at Courthouse: It is also affixed in a Court where he is required at

conspicuous place.

(6) Announcement in mosque: Despite beating of drum, announcement in mosque with

permission of Imam is most effective thing in the locality of the desired person.

(7) Contents of the proclamation: It must state the exact date, time, and place where
person has to appear. A proclamation, which omits to mention the time within which
and the place at which the absconder should present himself to save the sale of his
property, is a nullity.

(8) Time limitation: Time limit for appearance in Court is thirty days after the issuance of
proclamation.

4. Attachment of property – punishment of disobedience u/s 88: Law permits Court to

attach the property eventually in the non-compliance of the proclamation. This is punishment
to the required defaulter. S. 88 permits Court to attach property of required person either it is
moveable or immovable. This action can be taken without awaiting the completion of time
for his appearance. Court may take this action soon after passing the order for proclamation.
As soon as order for proclamation is passed, Court may attach property. S. 87 should be read
with S. 88. Both are correlative. Action u/s 88 can be taken only after the action taking u/s
87. If the action u/s 87 is not taken, action cannot be taken u/s 88. S. 87 must be invoked
before coming to S. 88; otherwise action taken u/s 88 shall become null and void.
Attachment of property put greater pressure, which results in appearance in Court.

It should be noted that part of the jointly owner cannot be attached. Any joint claimant may
claim from government upto the extent of his part in attached property within six months.
Government shall release his portion.

Whatever action government wants to take should be reasonable and also should not be taken
hasty (quick, speedy). When Court issues order u/s 87 can take action u/s 88 without any
delay.
 If Court has been passed orders u/s 88 and property has been attached and after attachment
person wanted dies, order of the Court comes to an end. Court cannot retain property of the
deceased person. Legal heirs may come to Court to get their claim. This property will
devolve to them. Right of inheritance cannot be denied.

The above actions are merely the measures to compel the required person to appear before
Court where he is required. These actions are not objective but subjective. Wanted person
can get back his attached property provided he appears before Court within stipulated time
period.

5. Production within 24 hours:

6. Production after fourteen days:

7. By arrest:

8. By jail police:

Manner of attachment: Property either moveable or immovable can be attached in the

following manner:

(1) Seizure: His property can be seized physically.

(2) Appointment of receiver: Receiver is a person who receives the rents and profits from
the property attached. Court may appoint receiver to compel the person to appear
before Court.

(3) Prohibition of conveyance: Court may prohibit the delivery of property to proclaimed
person. Person so required cannot sell or alienate property before its release from Court.

(4) Collective action: Court may take any former action separately or jointly. It is upto the
discretion of the Court whether single action shall fulfill the purpose.

(5) Possession: Court may order for the taking of possession of the property.

(6) Disposal of perishables: Foodstuff cannot be stored longer. This Court may dispose of
the property, which is perishable in nature immediately.

(7) Sale of livestock: Livestock is sold earlier to avoid certain expenses, which may incur
on them. Court cannot arrange fodder.

(8) Sale of property: Court may sell attached property after six months’ statutory period.
Property is released if the desired person is appeared in Court.

5. Restoration of property u/s 89: If the required person appears before Court voluntarily or
apprehended and produced before Court where it is required and fulfills the requirement of
the proclamation, his property kept with government either full or partly is released to him.
Proceedings of sold portion of the property are also released to him after making necessary
 deductions incurred for the keeping and sale of property. Intact part of the unsold property is
released (returned, reconvened, given back) alongwith the proceedings of sale of the part of
the property. Time limit for the action u/s 89 is two years.

6. Power to take bond for appearance u/s 91: There is no need to issue summons or warrant
to compel person for appearance before Court if he is already present in Court. Court may
require to him to execute a bond as a measure of security. This bond may be executed with or
without sureties. This measure ensures his due appearance in Court at time of requirement.
Presence of the person in Court should not be taken lightly. It depends upon the gravity of the
offence whether what action Court has to take to ensure his presence. In anyway Court has
not to act in haste.

Production of document or other thing u/s 94: If any document or thing is required to be
produced for desirable investigation can be either summoned or ordered. To issue summons is
the discretion of the Court, which is absolute. Action under this section taken by the Court is
called summon whereas action of in-charge of Police Station is called order. Notable thing is that
person from whom documents are to be produced is only person and not accused. If a person is
under treatment in hospital and evidence is required, medical report of medical officer shall be
summoned or ordered.

The Court is empowered to exercise the powers to summons the documents at the instance of the
accused even before he enters on his defence. Word “person” covers accused person also and
search warrant can be issued to him. Indian Supreme Court does not include accused in person.

This is not unlimited power granted to investigation agency. This power is confined upto the
extent of necessity or material requirement. In the absence of sufficient cause, section 94 shall
not be applicable. In the case of forged document, report can be called from handwriting or
fingerprints expert.

As far as banking accounts are concerned, neither Court nor in-charge of Police Station can call
accounts. Only High Court and Session Judge are the competent authorities in certain cases to
grant permission to produce banking accounts.

Physical presence of person may or may not be necessary. Merely production of document may
serve the purpose of investigation. Summons or orders include the place and time for the
production of documents.

Production of postal documents u/s 95: Where any postal like document is required to
facilitate or investigate or try the case, can be called upon. Documents in demand must be
relevant document.

Only competent authorities can demand the documents, i.e., District Magistrate, High Court,
Court of Session, District Superintendent of Police, or any other Magistrate. S. 94 should be read
and interpreted along-with S. 95. Postal authorities are protected under law. If any document,
thing, or parcel is in the custody of postal authorities and is required for inspection of
investigation then only competent authority may summon or order to produce such thing for the
purpose specified. The words “document, thing, or parcel” also cover a postal or money order.
These are the modes of compelling the person or department for the production of certain
documents required in proceeding of different cases.

Search warrant u/s 96: Court may also issue search warrant to inspect the documents. When
such warrants are issued? Only when Court comes to conclusion that such documents shall not
be produced u/s 94 and 95. Court orders to go and locate the required documents. Now any
Magistrate instead of District Magistrate can enjoy authority according to new amendment. It is
general inspection or search and Court cannot specify the particular house, room, or document.
This provision can be used:

1. Where an inquiry, trial, or proceeding are already going on; and

2. Where the Court after applying its mind objectively, comes to a conclusion that such an
intrusion (violation) is necessary for the purposes of such inquiry, trial, or proceeding, it may
order to that direction.

The power to issue search warrant being a drastic one is not to be lightly used and an
unjustifiable or arbitrary use of it may lead to serious consequences causing loss of prestige or
business to individuals and firms. Hence searches made in pursuance of warrants issued u/s 96
cannot be challenged as illegal on the ground of violation of fundamental rights under the
Constitution. Following are circumstances to issue search warrant:

1. Non-compliance of warrant:

2. Where document is not known to Court:

3. For the purpose of trial:

4. For the purpose of inquiry:

5. For the purpose of proceedings:

6. Suspect house:

7. Sale of forged documents:

8. Deposit of forged goods:

9. Manufacturing of forged documents:

10. Manufacturing of false seals:

11. Counterfeiting stamps:

12. Counterfeiting bank notes:

13. Obscene material:

How the search warrants are issued:

1. Magistrate:

2. High Court:

3. Application of mind:

4. Examination of police:

5. Respect of woman:

6. Privacy:

7. Permission:

Exception: There is an exception to this rule. Warrants cannot be issued to search document,
parcel or other thing to Postal or Telegraph authorities. This provision has been omitted by
Ordinance XXXVI of 2001.

Power to restrict warrant u/s 97: Court may restrict warrant through certain provision put into
the warrant such as, where warrant is issued to search place, does not mean the warrant to search
entire locality. It is specified in the warrant as to which house is to be searched. Court may also
specify the person authorized to make search. Order under this is issued when Court is sure that
any particular house is subject of search. Order in suspect cannot be issued. Search on the request
of Customs Authorities is not covered under this section.

Search of suspected house u/s 98: Where Court comes to conclusion that a particular house or
place is used for the forgery or storage of stolen property such as concealment of stolen property
or such property is dumped or naked pictures are kept like movies, Court may issue warrant to
inspect that house.

Only officer above the rank of constable is authorized to inspect the house suspected. Under this
section following are the grounds to order the search:

1. Deposit of stolen property: The place in question is being used for the deposit or sale of
stolen property.

2. Deposit or sale or manufacturing of forged documents: The place is used for the deposit
or sale or manufacture of forged documents, false seals or counterfeit stamps including bank
notes, currency notes or coins or instruments or materials for counterfeiting coins stamps,
bank notes or currency notes.

3. Deposit of forgery material: Where any material which is used for the commission of
forgery of documents, false seals, counterfeit stamps, bank notes, currency notes, coins,
instruments is kept or deposited in any place.
4. Deposit of obscene material: Where place is being used for deposit or sale or
manufacturing of obscene material which is prohibited u/s 292 of Pakistan Penal Code.

5. Non-production of document:

6. Where document is not known to Court:

7. For the purpose of trial:

8. For the purpose of inquiry:

9. For the purpose of proceedings:

10. Sale of forged document:

11. Deposit of forged document:

12. Manufacturing of forged document:

13. Manufacturing of false seals:

14. Counterfeiting of stamps:

15. Counterfeiting of bank notes and coins:

Action of police: Police Officer above the rank of constable can take following actions:

1. Act as specified: He can search the same in manner specified in the warrant. He cannot go
beyond whatever has been provided in warrant.

2. Taking possession: He can take possession of any property, documents, seals, stamps, bank
notes, currency notes, or coins etc. therein found which he reasonably suspects to be stolen or
unlawfully obtained.

3. Conveyance of property: He can convey such property, documents, seals etc before a
Magistrate or to guard the same on the spot until the offender is taken before a Magistrate.

4. Production of person before Court: He can take into custody and carry before a Magistrate
every person found in such place who has been privy to the deposit, sale, or manufacture
such property.

Guidelines for Magistrates in granting permission to search: Before obtaining search warrant
the Magistrate is under a bounden (strict) duty to apply his mind to allow permission or to refuse
it. He should at least examine the Police Officer making the request and if possible put him
questions to satisfy his mind. There should be some semblance (appearance, exterior) of an
inquiry to be made by the Magistrate before permission is accorded to search the house of an
individual, were it to be searched the house to find out if the premises are being used as a brothel
house or to recover stolen property or narcotics or illegal arms.
Whatever the purpose of search is, the Magistrate should always keep in mind that the search
conducted should be strictly in accordance with the provisions of the Code specially when
womenfolk reside in the premises. Search always is visitation on the rights of privacy of the
owner or possessor of the house and, therefore, he should be reticent (silent, keeping quit) in
granting permission to search the house in a mechanical manner without application of mind.
Law has conferred powers on the Magistrate and these powers have only to be exercised
carefully being very wary (alert, careful) of the powers of the Police Officer. These may not be
exercised to satiate (fill, stuff) personal vendetta (enmity) or when information is provided by a
spy keeping in mind that such information is always motivated by lust for money, which has
been refused, and out of ill-will personal score has to be settled. Where permission to search was
accorded as if the search warrants were for illegal confinement, the same having been issued u/s
100 of Code of Criminal Procedure. If this was the state of absent mindedness of a Magistrate
who has been invested with so many powers under the Code of Criminal Procedure, the police
official definitely will get encouraged to indulge in activities which are aimed to secure their
own motivated desires. Sections 98 and 165 of Code of Criminal Procedure have no application
whatsoever to a search made before any inquiry, investigation, trial, or before recording of First
Information Report.

Entry to the dwelling house without permission: Without getting permission of the occupant
or without a search warrant no stranger including a Police Officer can enter the house of any
person. Otherwise if such stranger or Police Officer is confined in the house or is belabored
(criticized, abuse) or injured by the inmates of the house in such circumstances, they would not
be committing any offence being justified in the matter.

Who may make the search: S. 98 specifically provides that a warrant can be issued only to the
Police Officer above the rank of a constable and it is only such officer that can conduct the
search. However such a warrant can be endorsed over to any other Police Officer of the same
rank for execution.

Charge of theft: Police Officer investigating into a charge of theft is entitled u/s 165 to search
without a warrant, and such a search will not be illegal.

Power of Magistrate: Articles ceased as a result of the warrant should be brought into Court and
a Magistrate who issues a warrant is entitled to see that his warrant is not abused and has been
properly executed. The Magistrate is competent to amend the warrant dispensing with the
production of the goods or document before him. A search under this section made without a
search warrant is illegal.

Disposal of things found in search beyond jurisdiction u/s 99: S. 99 relates to disposal of
things found in search at a place beyond the local limits of the jurisdiction of the Court, which
issued the warrant. Things found in such a search should be taken before the Court alongwith the
list unless the place of search is nearer to the Magistrate having jurisdiction than to such Court,
in which case the things so found are taken before the Magistrate immediately enabling him to
make an order to take them to the Court issuing warrant.
Search for persons wrongfully confined u/s 100: Magistrate of the first class or Sub-Divisional
class is empowered to issue search warrant to search for a person whom he believes to be in
wrongful confinement. Such person if recovered to be immediately taken before Magistrate for
passing proper order. The enacting part of this section lists a condition precedent to the effect
that before issuing a search warrant, it is necessary for the Magistrate to have sufficient material
before him to make him believe that a person was in confinement and that the circumstances
leading to such confinement constituted as offence. The words, “reasons to believe” have been
introduced by the legislature with a positive object that it was always believed that the
Magistrate possessed with reasons to believe, would always exercise discretion in a judicial
fashion. The concluding part of this section lays down that a person if found shall immediately
be taken to a Magistrate who shall make such order as in the circumstances of the case, seem
proper.

1. Territorial jurisdiction: A Magistrate can issue a search warrant only under this section
when the search is to be made within the local limit of his jurisdiction. Where the minor for
whom the search warrant was issued was living with grand parents in district A, Magistrate
at B issued search warrant, the order of the Magistrate is vitiated because of lack of
territorial jurisdiction.

2. Issuance of search warrant by judicial Magistrate: Proceedings under S. 100 of Code of

Criminal Procedure can be taken only by the Magistrate of first class and not by the Judicial
Magistrate whose primary and sole function is to decide the criminal cases including
criminal offences. Issuance of search warrant by Judicial Magistrate would amount simply to
transgress (violate a law or right) his authority.

3. Magistrate not disqualified from taking cognizance: Magistrate recording statement u/s
100 is not disqualified from taking cognizance of the offence involved.

4. Neglect to execute search warrant: Willful neglect to execute a search warrant issued u/s
100 amounts to contempt of Court.

Security for keeping the peace on conviction u/s 106: If a person is convicted on offence
punishable at law can be asked to provide bond or security with or without sureties to ensure
public tranquility and to avoid disturbance. Breach of peace cannot be tolerated at any cost.
Chapter VIII of both Pakistan Penal Code and Code of Criminal Procedure are the same on
topic.

Ss. 106 and 107 of the Code of Criminal Procedure are counterparts of the same policy. S. 106
applying when by reason of the conviction of a person, his past conduct leads to an
apprehension for the future and S. 107 applying when, where the Magistrate on information of
opinion that unless prevented, a person is likely to act to the detriment of public peace and
public tranquility.

Bond given by a person for keeping peace or to be of good behavior is exempt from payment of
Court fee except bond given by surety. Security is not necessary from both sides. Who commits
offence or is likely to commit offence is liable to provide security of good behaviour.
Security for keeping the peace in other cases u/s 107: Where no offence yet is committed but
likely to commit offence, Court can demand security of good behaviour. Bond is taken to ensure
public peace. Disturbance of peace is disallowed. Law watches the people who commits or
likely to commit offence and prevents them in doing such thing which may cause disturbance.
Before offence is committed, preventive measures are taken to avoid ill thing. Prevention is
better than of cure. He may either be arrested & detained or execution of bond is required. The
bare possibility of breach of the peace is not enough to justify proceeding u/s 107 or Code of
Criminal Procedure. There must be at least a reasonable probability of such breach. Action u/s
107 of Code of Criminal Procedure cannot be taken merely on the ground that a person has cast
a slur (insult) on the character and activity of another person and has been carrying on a
campaign of vilification (defamation) against him.

Security is merely satisfaction of Magistrate of the particular locality. Security is not demanded
from both side but from the side from where offence is likely to commit. Person who is innocent
is free to prove his future conduct non-destructive. Government institution like WAPDA,
WASA, or LDA etc. cannot execute security. Disturbance in connection with Land Acquisition
Act is not covered under this section. Only person on wrong side is liable and not who abide by
the law requirements.

Security for good behaviour from persons disseminating (broadcast, propagate, distribute)
seditious matter u/s 108: U/s 108 proceedings can be taken against a person who commits or is
about to commit an offence punishable u/s 123-A or u/s 124-A or in the matter of publication,
u/s 153-A Pakistan Penal Code or criminal intimidation or defamation of a Judge. The object of
enabling the Magistrate to take security for good behaviour is for the prevention and not for the
punishment of offences. Any person who either orally or in writing or in any other manner
intentionally disseminate (broadcast or spread) or attempts to disseminate or in any wise abets
the dissemination of any seditious matter falling within the ambit of section given above or is
accused of criminal intimidation or defamation of a Judge, the Magistrate on being satisfied and
having formed his opinion that there are sufficient ground, requiring such person to show cause
as to why he should not be ordered to execute a bond with or without sureties for his good
behaviour for one year may proceed under this section.

Security for good behaviour from vagrants (wandering) and suspected persons u/s 109:
The second class in which security for good behaviour can be demanded is that of suspects, i.e.,
person taking precautions with a view to committing an offence or person who has no ostensible
means of subsistence or who cannot give a satisfactory account of himself. It is the anticipatory
jurisdiction, which the Magistrate exercises under this section. It must be shown that the person
proceeded against had taken some active steps to conceal his presence in a certain place or done
something to show that he did not wish to be known that he was present at the place and that
such steps are taken with a view to commit a cognizable offence. Mere concealment would not
amount to concealment of presence within the meaning of this section, unless it is to commit a
cognizable offence.

Report of investigation by subordinate Police Officer u/s 168: This section provides that
when any subordinate Police Officer to whom the case was assigned has made any investigation,
he shall report the result of such investigation to the officer in-charge of the Police Station. Such
reports are not public documents and consequently an accused person is not entitled, before trial,
to have copies of such reports.

Release of accused when evidence is deficient u/s 169: If during investigation it reveals to In-
charge of Police Station or investigating officer that there is no sufficient ground or evidence to
charge accused, police may release the accused on the execution of bond with or without
sureties.

This section empowers the officer in-charge Police Station or the Investigating Officer to release
an accused in his custody on executing bond with or without sureties if he finds no sufficient
evidence or reasonable ground or suspicion to justify forwarding challan.

The idea underlying the provisions of S. 169 of Code of Criminal Procedure is that in case of
insufficiency of evidence the police, i.e., the Station Housing Officer or the Investigating
Officer, may release a person for the time being and a bail bond is taken for the reason that an
accused may appear before the Magistrate whenever required particularly at the time when a
report u/s 173 of Code of Criminal Procedure (challan) is submitted before a Magistrate
competent to take cognizance.

S. 169 postulates (assume, suppose, presume) that during the course of investigation if it
transpires (happen, take place, arise) to the in-charge of Police Station that the evidence
collected was deficient, the in-charge officer could release the accused.

Report of Police Officer u/s 173: This section enjoins (commands, directs, orders) that every
investigation shall be completed without unnecessary delay and as soon as completed, the
officer in-charge of the Police Station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form prescribed setting forth the
name 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 own bond.

The final report under this section is to be sent in the form prescribed by the State Government.
Where the accused is sent up for trial, the form of the report sometimes is called the charge
sheet. The report sent when the accused is not set up is called the “final report” or “referred
charge sheet”.

Interim report: In case investigation is not completed within 14 days from the date of
recording of First Information Report, officer in-charge of Police Station is mandatory required
to submit in interim challan within 3 days of expiration of such period of 14 days.

Incomplete challan: If the investigation is incomplete and an interim report is submitted, the
trial Court shall commence the trial on the basis of such interim report, unless, for reason to be
recorded, the Court decide that the trial should not so commence. It means that under law it is
permissible for the Court to commence trial on the basis of the material placed before it in shape
of an interim report or to keep the report pending till the submission of final report about the
investigation.
Delay: Although an accused is not to be benefited of lapse for good reason, but delay beyond 14
days amounts violation of the specific provision, resulting subsequent detention unlawful and
violative of Articles 9 and 10 of the Constitution of Pakistan entitling the accused to be released
on bail.

Submission of final report: Submission of final report by the Investigation Officer is

mandatory. It is only after submission of report u/s 173 that Magistrate can order cancellation of
a case or refuse to do so, as he thinks fit. Failure by Investigating Officer to submit final report
u/s 173 would amount to misconduct liable to action under law. Whatever course Investigating
Officer adopts, i.e., whether he acts u/s 169 or u/s 170 of Code of Criminal Procedure, it is
incumbent upon (responsible to perform duty) him to submit a “final report” u/s 173 of Code of
Criminal Procedure with regard to result of his investigation to a competent Magistrate.

Procedure when investigation cannot be completed in twenty-four hours u/s 167: Wrong
confinement without any remand, order, and without registration of any case by Law Enforcing
Agency for the police is unwarranted by law, and abuse of the process of Court. Action taking
by police after taking the custody in arresting the alleged accused persons afresh and thereafter
lodging fresh reports against them on hearsay evidence is noting but a colorful exercise of power
an retaining their custody amounting of their wrongful confinement under a legal cover
specifically when the various reports lodged against the alleged accused persons by the Police
Officers appeared to be a managed affair under a preplanned scheme.

Diary of proceedings in investigation u/s 172: Law had made a mandatory provision for an
investigation officer to enter day to day proceedings of the investigation in a special 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. Such special diary may be used at the trial or inquiry not
as evidence in the case but to aid the Court in such inquiry or trial.

Object of maintaining diary: The object of recording “case diaries” under this law is to enable
Courts to check the method of investigation by the police. Diary kept under this section cannot
be used evidence of any date, fact of statements contained therein but it can be used for the
purpose of assisting the Court in the enquiry or trial by enabling it to discover means for further
elucidation (explanation, clarification) of points which need clearing up before justice can be
done.

Refresh of memory: Object of S. 172 or Code of Criminal Procedure is to enable Court to

direct Police Officer who is giving his evidence to refresh his memory from notes made by him
in the course of his investigation of case or to question him as to contradiction which may
appear between statements so recorded an evidence he was giving in Court. Court may also use
diary in course of trial for purpose of clearing up obscurities (unclearness) in evidence or brining
out relevant facts which Court thought are material in interest of fair trial.

Police to inquire on suicide, etc. u/s 174: Ss. 174 to 176 of Code of Criminal Procedure deals
with inquests or inquiries into sudden violent or unnatural death. S. 174 relates to inquire and
report on suicide, etc. In such cases the officer in-charge of the Police Station or some other
Police Officer specially empowered by the Provincial Government, on receive of information
that a person:

1. Has committed suicide, or

2. Has been killed by another, or by an animal, or by machinery, or by an accident, or

3. Has died under circumstances raising a reasonable suspicion that some other person
has committed an offence,

is required to immediately give intimation thereof to the nearest Magistrate empowered to hold
inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government
shall proceed to the place where the body of such deceased person is, and 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 to the body, and stating in what manner, or by what
weapon or instrument, if any, such marks appear to have been inflicted.

Inquiry officer: Only the Magistrate of first class is empowered to hold such inquests (judicial
inquiry, examination, or investigative research). The word “inquest” has not been defined in
Code of Criminal Procedure. It carries particular significance when a Magistrate conducts the
same.

Object of inquest report: Inquest report does only object to ascertain the reasons or cause of
death. This is a type of inquiry. This section does not empower anybody to inquire about the
alleged person who has killed the person. Inquest is a merely inquiry to find the cause of death.

Power to summon person u/s 175: This section empowers the Police Officer so authorized to
hold inquiry u/s 174 to summon the two or more witnesses to ascertain the causes of death. The
persons so called should be acquainted to the person died or the circumstances in which the death
is caused. They are required to answer all the questions put to them truly. They are not bound by
law to answer the questions, which tend to expose them a criminal charge or to penalty or
forfeiture.

Where it reveals that the offence so committed was non-cognizable, police shall not be required
to produce such witnesses before the Magistrate.

It is indicative that person examined at an inquest is bound to answer truly all questions other
than excepted, whereas S. 161 imposes no such obligation to speak the truth. As such a witness
speaking falsely under this section commits the offence of intentionally giving false evidence
punishable u/s 193 of the Pakistan Penal Code.

Inquiry by Magistrate into cause of death u/s 176: If a person is taken into custody then he is
bound to be dealt with strictly accordion to law and is to be punished only when the case is
proved against him. Any person does not allow killing of such person while he is in custody and
if this is done then it clearly shows that there is no writ of law but law of jungle.
Object of inquiry: Object of inquiry u/s 176 of Code of Criminal Procedure is to check the
inquiry being held by the police or allay doubts in the mind of public against a particular
individual.

Exhumation of dead body: Magistrate may order to disinter (unearth, expose) the dead body for
fresh postmortem. Magistrate acts judiciously.

Time limit for exhumation: District Magistrate is empowered to order disinter dead body for
holding inquiry even deceased buried after postmortem examination. No time limit for
disinterment is provided, which can be allowed in the interest of justice to ascertain cause of
death even after one year.

Ordinary place of inquiry and trial u/s 177: This section lays down general rule regarding the
jurisdiction for the competency of a forum to take cognizance of an offence. It provides that
every offence is ordinarily to be inquired into and tried by a Court within the local limits of
whose jurisdiction it is committed. If an offence is committed in a district, it shall be inquired
into and tried by the Court of the same district. Magistrate has no power to try an accused for an
offence committed wholly outside the limits of his territorial jurisdiction. Session Judge of the
district in whose local limits offence is committed is invested powers to try the case.

There are certain exceptions to the rule that case shall be inquired into and tried by the local
limits of the Court in whose jurisdiction offence is committed. They are described as under:

1. Power to order cases to be tried in different sessions divisions u/s 178: As far as general
principle is concerned it the same as described earlier that original jurisdiction shall lie to the
Court in whose local limit offence is committed. But Provincial Government has power to
change the area, spot, or space of trial of the case keeping in view of the interest of justice.
This power is subject to the control of High Court. Law gives this power to Provincial
Government to avoid any law and order situation. This power ensures the public tranquility
(peace, quite, calm).

2. Accused try-able in district, where act is done or where consequence ensues u/s 179:
This is second exception to general rule of jurisdiction of Court. If the act is done at one
place and its consequences are occurred at another place, both Courts have jurisdiction to
inquire and try the offender.

For instance, A has injured B in Lahore. Subsequently B goes to Faisalabad and dies there.
Since the B was caused to inflict injury in Lahore and he died at Faisalabad which was the
direct cause of the injury caused by A, the Courts of both districts, i.e., Lahore and Faisalabad
have jurisdiction to inquire or try the offender either in Lahore or Faisalabad. Direct
consequences means that where person injured becomes unable to carry on his routine
normal life. Where B recovers, then only Court of Lahore shall get the jurisdiction to inquire
and try the offender. It is further explained in another instance.

For example, A causes injury to B in Lahore. Later on B goes to Faisalabad and lives there
for ten days where he remains unable to carry on his routine normal life and later on he goes
to Rawalpindi and still remains unable for the same as in Faisalabad. All the Courts either in
 Lahore, Faisalabad, or Rawalpindi get jurisdiction to inquire and try the offender. If B
recovers at Rawalpindi and carries on his routine normal life there, then only Courts of
Lahore and Faisalabad get the jurisdiction excluding the Court of Rawalpindi. Normally the
Court where the wrongful act is done gets the jurisdiction.

It is further explained in another illustration. For instance, A puts B into fear in Lahore. B
subsequently goes to Faisalabad. Property of B is taken away in Faisalabad under direct
consequences of threat of A in Lahore. A can be tried either at Lahore or Faisalabad. Since
the delivery of property is direct consequence therefore the Court at Faisalabad has also
jurisdiction to try offender as the Court of Lahore has jurisdiction.

3. Place of trial where act is offence by reason of relation to other offence u/s 180: If the
criminal act is committed in relation to other act which itself is offence can be inquired into
or tried by a Court either where first it was initiated or where it is committed.

For instance, A abets B in Lahore, under consequences of which B kills C at Faisalabad. B

can either be inquired into or tried by the Court of Lahore where the abetment was committed
or Faisalabad, which is the place of occurrence of the actual crime.

In another example, A commits theft at Lahore and sells stolen property at Faisalabad. A can
be inquired into or tried either by the Court within whose jurisdiction property was stolen or
the Court within whose jurisdiction property is received, sold, or retained.

4. Being a thug or belonging to a gang of dacoits, escape from custody, criminal

misappropriation, criminal breach of trust, theft, kidnapping, and abduction etc. u/s
181: Any person liable of the above offences is try-able at the place where he is found even
he has started the offence at different place.

For instance, A purchases busses on installments but later on he refuses to pay remaining
installments is liable of the offence of criminal misappropriation. He can either be tried at the
place from where he bought the busses or where he is at present.

In case of theft, offender can be tried either at the place whereto offence of theft was
committed or where the stolen property is received.

Kidnapping or abduction has also same treatments as the previous cases have.

5. 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 u/s 182: Where it is uncertain that is
to where offence was started, where offence is committed partly in different areas, where
offence is continuance, where acts are different in different areas, can be tried at any place
where offender is found. Reference can also be made to High Court for determining the place
of jurisdiction.

6. Offence committed on a journey u/s 183: Where within the territory of Pakistan any
offence is committed during journey either at bus, train, plane, ship, can be tried at any
district within whose jurisdiction offence is committed.
7. High Court to decide, in case of doubt, district where inquiry or trial shall take place
u/s 185: Where there is doubt regarding the jurisdiction of Court, reference shall be made to
High Court for its determination. High Court is final authority to decide the case. Where case
is related to another High Court, the matter shall be brought into the notice of other High
Court that case has been registered and being tried.

8. Liability for offences committed outside Pakistan u/s 188: Where any Pakistani or servant
of Pakistan either Pakistani or not commits offence in Pakistan or outside Pakistan, at ship or
aircraft registered in Pakistan and bearing Pakistani flag, shall be tried in Pakistan.

Cognizance of offences by Magistrates u/s 190: The expression “taking cognizance of offence”
in its broad and literal sense means taking notice of an offence. It would include intention of
initiating judicial proceedings against offender in respect of that offence or taking steps, whether
there is any basis for initiating judicial proceedings or for other purposes. It is conscious
application of mind by the Court to facts stated in report by police, which amounts to taking
cognizance of offence.

Competency to take cognizance requires both that the Magistrate should be one of those
mentioned in this section and should also be competent to inquire into or try the offence u/s 177.
Magistrate not taking cognizance in the first instances no bar against cognizance taken
subsequent to his previous refusal. Where police had not submitted an complete/incomplete
challan for many months without a reasonable cause, and the Magistrate had been remanding the
accused at the police request in a mechanical manner, neither cognizance of the case u/s
190(1)(b) of Code of Criminal Procedure, taken by the Magistrate nor he could legally remand
the case the accused to custody u/s 344(1) of Code of Criminal Procedure. If a Magistrate not
empowered by law takes cognizance of an offence under subsection (1), clause (a) or (b),
erroneously but in good faith, his proceedings shall not be set aside merely on the ground of his
not being so empowered. But if said Magistrate takes cognizance of an offence under clause (c)
without a complaint, his proceedings shall be void u/s 530(k) of Code of Criminal Procedure
infra (behind, afterward, following, next).

Transfer of case upon application of accused u/s 191: This section applies where Magistrate
takes cognizance at his own motion. This also provides that if a Magistrate takes cognizance of
an offence upon his own information or suspect, and if, before evidence is taken, the accused
objects to being tried by such Magistrate, he may send the case to the Sessions Judge for transfer
to another Magistrate. The provision is based on a well-known maxim that no person can be a
Judge of his own cause.

This section is meant to repel (oppose, resist) impression with the accused person that he was
being tried by a Magistrate or Court who had already made up his mind against him and
summoned him to face the trial by holding that a prima facie case was made out against him. A
Court, which takes cognizance of a non-cognizable offence suo motu, is under a legal obligation
to offer the accused a choice of trial before another Court is required u/s 191 of Code of Criminal
Procedure. The accused must be informed, before any evidence is taken, that he is entitled to
have his case tried by another Court. If he objects to being tried by the Magistrate who has taken
cognizance of the case, the case must be transferred to another Magistrate or be committed to the
Sessions. But the accused is not entitled to claim that a particular Court must try his claim.
Transfer of cases u/s 192: This section provides that 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.

Cognizance of offences by Courts of Session u/s 193: This section imposes an embargo upon a
Court of Session to take cognizance of any offence unless accused had been sent to said Court of
Session by a Magistrate duly empowered in that behalf.

Enquiry report conducted by Magistrate is not binding on the Sessions Judge and Sessions Judge
could take any view as could be deemed fit and proper in accordance with law.

Prosecution of offences against state u/s 196: Following is the procedure to prosecute the
offences against state:

1. Permission of government:

2. No permission in certain offences:

3. Sanction must set out facts:

4. Sanction must be signed on behalf of government:

5. Proof of sanction:

6. Magistrate can take cognizance: In following cases sanction of the government is not
required to proceed the case:

a) Upon receiving a complaint:

b) Upon police report:

c) Upon information recorded from his own knowledge:

Examination of private complaint u/s 200: There are two parallel systems to bring the offender
before Court, i.e., First Information Report and private complaint. U/s 154 police is legally
bound to register First Information Report on complaint. But in the cases where police is
reluctant or hesitates to register First Information Report, aggrieved party may go to Court to file
private complaint before Magistrate u/s 200. Contents of private complaint made before
Magistrate have not weight less than First Information Report. There are so many examples
according to which people are even hanged upon private complaints where police had refused to
register First Information Report.

It is mandatory requirements of law, that complainant should be examined on very date

complaint is presented to the Magistrate and he takes cognizance of matter. Putting off
examination of complaint is violative of the provisions. The object is to protect the public against
false, frivolous or vexatious, complaints filed in criminal Courts. Magistrates ought not to lightly
accept written complaints and proceed to issue processes unless they have thoroughly sifted
(strain, screen, filter, grade) the allegations made against the accused and are satisfied that a
prima facie case has been made out against those who are accused of criminal offences.

Oath: Magistrate is bound to reduce the complaint into writing if it is oral or even than it is in
writing. Oath is taken even complaint is made in writing.

Signature: Signature of the complainant is taken when complaint is reduced to writing. Also
Magistrate has to sign it.

Action: Action is taken on complaint on the same day and Magistrate cannot keep pending the
complaint due to and reason.

Non-examination of complaint: Where Sessions Judge has empowered Judicial Magistrate to

transfer the case and complaint is made to him, it is not necessary for him to examine the
complaint before its transfer to other Magistrate.

Where complaint is made by a Court or public servant acting or purporting to act in the discharge
of his official duty is also not liable to examine.

Magistrate shall not examine the complaint where the transferring authority has also been
examined the complaint. Reexamining has been prohibited u/s 200(c).

Procedure on complaint cases u/ss 200 to 201:

1. Cognizance of competent Magistrate: s

2. Examination of complaint at once: s

3. Examination on oath: s

4. Recording on paper: s

5. Signature of complainant: s

6. Signature of Magistrate: s

7. Transfer where written without examination: s

8. No re-examination where already examined: s

9. Refer to other Magistrate where complaint is oral and he is incompetent: Where

complaint is made orally to the Magistrate having no power to take cognizance, he shall
direct the aggrieved party to the proper Court.

10. Refer to other Magistrate with endorsement where written: Magistrate having no
competency of cognizance shall return the written complaint to its maker for the presentation
into proper Court with endorsement.
Procedure by Magistrate not competent to take cognizance of the case u/s 201: If the
complaint is made either in writing or oral to Magistrate, who is not competent to take its
cognizance, he may take two steps as follows:

Postponement of issue of process u/s 202: Where complaint is made or transferred and such
Court wants to ascertain its truth or falsehood may postpone to issue process and may require to
inquire before issuing process. This may be made either judicially or by police.

Where a Court makes the complaint and oath has been taken, issue of process shall not be
postponed.

Dismissal of complaint u/s 203: Where there is no prima facie offence found under complaint
after making inquiry, Magistrate may dismiss the complaint after recording of reasons for so
doing.

This dismissal is neither adjudication nor acquittal but merely dismissal in limine. It is
satisfaction of Magistrate. Principle of res judicata does not apply in this dismissal. Whenever
new facts are discovered, new complaint can be filed or First Information Report can be got
registered.

Where First Information Report is got registered against four accused and police declares two of
them innocent in inquiry, complaint can also be made against them keeping in view of collusion
on the part of police with such persons. First Information Report and private complaint can go
together.

Where both First Information Report and private complaints are made together, first preference
for discharge has to be given to complaint rather than First Information Report. Decision on
complaint should come first and then First Information Report has to be treated. Complaint is not
taken in light manner. It is so strong as the First Information Report is. It has parallel footing.

Magistrate may dispense with personal attendance of accused u/s 205: There are certain
cases in which accused may not appear personally for inquiry or trial. Law gives authority to
Magistrate for the granting exemption to person from personal appearance before Court.
Magistrate has to see and get satisfaction before granting such exemption that whether there are
sufficient reasons such as old age, young offender, serious ailment, or pardanasheen lady etc. In
such case council of the accused or pleader may appear in his place.

This exemption is available only in the case where summons is issued. Where warrants are
issued, this dispensation from personal appearance is not available.

High Court while exercising original jurisdiction has power u/s 205 of Code of Criminal
Procedure to dispense with personal attendance of a lady accused and allow her Advocate to
represent her. Powers meant for Magistrate must be deemed to be available to High Court.

Power to dispense personal appearance is also available under sections 353 and 540 – A
alongwith 205 of the Code of Criminal Procedure.
Evidence to be taken in presence of accused u/s 353: Under this section evidence is recorded
in the presence of accused unless his personal appearance has been dispensed with under the law.
If accused has been exempted from personal appearance then evidence shall be recorded in the
presence of pleader or advocate.

Provision for inquiries and trial being held in the absence of accused in certain cases u/s
540 – A: The incapability of appearance may not necessarily be because of either sickness or
other such like reasons. The ordinary meaning of incapability is that a person is not capable to do
a thing for any reason. A person being employed in foreign country may not be able to appear on
each and every date of proceeding and if the Court is satisfied on objective consideration, such a
person may be exempted from appearance under this section. Court has not to shut off her eyes
before granting such exemption.

Framing of charge: Where attendance of accused is dispensed with u/s 540 – A, the charge can
be framed in his absence.

Charge to the state offence u/s 221: Where the offence has been committed and offender has
been apprehended, it is duty of the prosecution to inform or intimate the offender under which
offence he has been arrested. Framing of charge is intimation or notice to the accused for which
he is required at law.

Specific name of offence: Simple information to offender is insufficient. Detailed and

comprehensive description is necessary such as time and place of offence etc. or whether it was
qatal-i-amd or otherwise.

How stated where offence has not specific name: Where the offence committed has not
specific name, detailed description of the offence should be provided so that accused may know
the exact nature of the offence for which he is charged. Where registration number is not
allocated to car, description of car such as colour, model, name shall provide sufficient
information for accused to know the nature of offence. It should not be so elaborative but concise
form of information and comprehensive for the knowledge of accused.

Language of charge: Normally charge is framed in English but it can be in Urdu, which is also
language of the Court.

Particulars as to time, place, and person u/s 222: Where the accused charged by the criminal
breach of trust or dishonest misappropriation of money under sections 403 to 409 of Pakistan
Penal Code, each offence is separate offence but total separate amount is not necessary to
provide. Total sum of amount, which has been misappropriated, is sufficient.

The provision of this section applies only to offences of criminal breach of trust or dishonest
misappropriation of money and does not apply to falsification of accounts. An accused is entitled
to know with certainty and accuracy the exact nature of the charge brought against him. Unless
he has this knowledge he must be seriously prejudiced in his defence. When the accused is
charged with criminal breach of trust or dishonest misappropriation of money, the particular
items or exact dates on which the offence was committed needs not be stated. It is not necessary
to specify the separate sums which have been embezzled (misappropriate, steal). It is sufficient
that sum of the money mentioned in the charges has been misappropriated, even though it may
be uncertain what is the exact amount so misappropriated.

S. 222 contains mandatory provision of law that charge shall contain all material particulars as to
time, place as well as specific name of the alleged offence, the manner in which the offence is
committed and the particulars of the accused so as to afford the accused an opportunity to
explain the matter with which he is charged. Court frames the charge to whom case is assigned.

When manner of committing offence must be stated u/s 223: While framing charge it is
essential that manner of committing offence must be stated. When the nature of the case is such a
that the particulars mentioned u/ss 22 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.

When the particulars, mentioned in sections 221 and 222 do not give the accused sufficient
notice of the matter which he is charged, the Magistrate must give in the charge such particulars
of the manner in which the alleged offence was committed, as will be sufficient for that purpose.

Where in a case of cheating the charge u/s 420 of Pakistan Penal Code is not indicative of the
manner of deception practiced by the accused person, the charge is defective.

In the case of distinct offences not being acts in the same transaction, committed at different
places, a separate charge/trial should be held. However, such illegality amounts to irregularity
and is curable where accused and sufficient knowledge that they were facing trial for three
murders.

Words in charge taken in sense of law under which offence is punishable u/s 224: Words,
which are used to describe the offence, are deemed to be used in the sense of law prescribed.

Effects of errors u/s 225: There may be chance of error in charge. If the error causes misled to
offender, Court shall regard it. But where error does not mislead the accused, Court shall
disregard it.

This section intends to prevent any failure of justice for non-compliance with the matter required
to be stated in the charge. The crux of the section is that omission or such error committed while
framing charge would not vitiate the trial unless the accused is in fact and it has occasioned a
failure of justice.

Errors or omissions committed in stating either offence or particulars required to be stated in

charge are not materiel unless accused is in fact misled by them and failure of justice is
occasioned.

This section must be read with S. 537. The combined reading of these provisions requires that
when any error, omission, or irregularity has occurred in the framing of charge, the only question
to consider is whether it has occasioned a failure of justice by prejudicing the accused in his
defence.

Court may alter charge u/s 227: This section applies to all Courts and is intended to apply to
alterations or additions to the charge during the course of the trial. Once charge is framed, it can
only be altered after some material is available on record to justify that charge should have been
framed for some other major offence and only then charge can be amended without recording
evidence. Any alteration is subject to the information to accused.

The Court has power to add to a charge. The word “alter” includes withdrawal by a Sessions
Judge of a charge added by him to the charge on which the commitment has been made. Such
alteration or addition shall be made before the pronouncement of judgement and not later on.

The Court may alter or add to the charge at any time before judgement is pronounced or the
verdict of the jury is returned. But it must exercise a sound and wise discretion in so doing. If it
wishes to strike out any of the charges it should do so before concluding the trial, and should
give the accused an opportunity of making such defence as he thinks fit, otherwise the trial is
vitiated.

Separate charges for distinct offences u/s 233: Where there are distinct offences even
committed by either single or group of accused shall be charged separately. Each offence has its
separate status. All offences must be committed during sole transaction. There should not be
break in its commission. The framing of a specific and distinct charge in respect of every distinct
head of criminal liability constituting an offence, is the foundation for a conviction and sentence
therefor. This provision of law is mandatory.

Three offences of same kind within one year may be charged together u/s 234: Under law
three murders committed within a span of one year constitute a single offence thus may be tried
as single offence. Any other offence of same nature committed by the same accused within one
year shall be tried as single offence. Punishment of the all three offences charged should be
similar. Where there is different punishments, they shall be framed and tried separately.

A reading of S. 234 of Code of Criminal Procedure shows that combination of only three
offences is permissible in one trial. Nevertheless, it does not bar separate trial of the accused for
rest for the offences having been committed within a period of one year. The object of these
provisions is to avoid harassment and complication likely to occur in evidence by joining large
number of facts constituting offences of identical nature.

Provision of one trial is not mandatory. Keeping in view of the convenience of police, accused
itself, and Police Station, all offences may be charged and tried separately. Though provision of
single trial is there but this provision is not mandatory and they can be tried separately.
Compliance of this section is not desirable. It should not be followed. Amalgamation creates
great inconvenience. Although it is permissible and there is no illegality if single trial is
conducted but even than it is undesirable. Provisions of this section should not be applied
blindly.
Where different offence is committed at different place and at different time shall be tried
separately and joint trial is prohibited. When the murder of one and murderous (homicidal)
assault on another person occurred at different places and at different times although on the same
day, the offences cannot be said to have been committed in the course of the “same transaction”.

Trial for more than one offence u/s 235: This is another exception to the rule in S. 233 that
there should be a separate trial for every offence charged. The general rule that every offence
should be charged separately applies, though there may be one trial for all such offences under
the provision of the section.

Where an offence is committed during one transaction, e.g., robbery and injury without causing a
break in transaction shall be tried solely. Offence committed must be without break in one
transaction.

The real and substantial test for determining whether several offences are connected together so
as to form one transaction “depends upon whether they are so related to one another in point of
purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one
continuous action”. The following factors are relevant in determining whether or not different
acts committed by one or more accused persons were committed in the course of the “same
transaction”:

1. The proximity of time,

2. The proximity of place,

3. Whether or not they are related as cause and effects of each other,

4. Whether or not they are related to each other as principal and subsidiary acts,

5. Community (common, cooperative, joint) of purpose, and

6. Continuity (unity) of action.

When it is doubtful what offence has been committed u/s 236: This is enabling section for the
offences, which are similar in nature and cannot be separated or perceived. A person can be
convicted for the offence for which he is not actually charged. Where there is similarity in acts
and accused is charged for one, but evidence comes for the offence against which accused was
not charged, can be convicted for such offence also. It requires some sort of similarity. Where
there is no similarity, punishment cannot be given in the offence for which accused is not
charged. Punishment only can be given in the offence not charged if it has some similarity with
the offence against which accused is charged.

Accused charged u/s 302 cannot be punished for the offence of defamation. A separate trial is
required to punish him for the offence of defamation. Punishment can be given for both offences
where accused is charged for both offences jointly. But where accused is charged for one
offence, second offence cannot be amalgamated with that once for which he is charged.
S. 236 provides that where it is doubtful as to which of several offences a person has committed,
he may be charged in one trial for all the offences or in the alternative with having committed
some of the said offences.

When a person is charged with one offence, he can be convicted of another u/s 237: Where a
accused is charged under the offence of theft but during trial it reveals that he is also guilty of
receiving of stolen property can be convicted for the offence for which he is not charged, i.e.,
receiving of stolen property. Not being charged against the cognate (allied in characteristics)
offence does not debar Court to punish offender if reveals in evidence that he is also guilty of
other offence of same nature.

S. 237 is also exception to the general rule that an accused person cannot be convicted of an
offence of which he was not charged, and of which consequently he has had no notice. This
section enables the Court to convict a person of an offence, which is disclosed in the evidence
and for which he might have been charged under the provisions of S. 236, although he was not
charged with it.

S. 236 provides that where it is doubtful as to which of several offences a person has committed,
he may be charged in one trial for all the offences or in the alternative with having committed
some of the said offences. S. 237 provides that if a person is charged with one offence but it
appears from the evidence adduced against him that he had committed a different offence for
which he might have been charged, he may be convicted of that offence proved against him
although not charged with it. This may be possible into minor offences but not to the major.

When offence proved included in offence charged u/s 238: When an accused is charged
against an offence of high gravity but evidence adduced proves minor offence, accused shall be
punished for minor offence. But where charge is minor and evidence proves major offence,
accused shall not be punished for the offence of higher gravity. A separate charge and trial
becomes necessary. Charges u/ss 302 and 304 though are cognate, but if accused is charged u/s
302 but evidence proves commission of offence u/s 304, he shall be punished u/s 304 and not u/s
302. But where accused is charged u/s 304 and evidence has revealed the commission of offence
u/s 302, accused shall not be convicted. It needs separate charge and trial for conviction.

1. Where evidence disclosed during trial:

2. Only for minor offence:

3. Should be cognate offence:

4. Not on distinct offence:

5. Where major offence, new charge:

6. This is exemption in general rule, i.e., separate charge for each offence:

What persons may be charged jointly u/s 239: This section is the last exception to S. 233
which lays down the general principle that every offence must be charged and tried separately.
This is the only section, which authorizes a joint trial of several persons under circumstances
specified in the section except in cases falling under this section, a joint trial of several accused
persons renders the trial invalid. In order to attract the provisions of S. 239, the accused persons
must have acted in concert (in agreement) to commit an offence. This section cannot possibly
apply to a case in which it is being alleged that either one or the other group of accused persons
was guilty of murder and not that they all participated in the murder in collaboration with one
another. In a joint trial it is very necessary to keep clear separated the evidence against each of
the accused.

Elements of charge:

1. State offences:

2. Specific name:

3. Description where no name of offence is:

4. Section to mention:

5. Language either English or Court:

How charge is framed: Charge is framed in the following manner:

1. Particulars of time:

2. Place of offence:

3. Particular of person against whom offence is committed:

4. Gross sum where criminal breach of trust:

5. Particulars of manner of commission of offence:

6. Words in the sense of law:

7. Court may alter charge:

8. New trial on addition of charge:

Separate charge for distinct offences:

1. Separate charge:

2. Separate trial:

3. One charge for three offences in a year:

How trial commences and concludes u/s 241: Trial means examination of case, civil or
criminal, by a competent tribunal. Trial is a hearing of a case, civil or criminal before a Judge
who has jurisdiction over it according to the law of the land. The trial may be said to commence
when the accused is brought or appears before the Magistrate. Where the challan has been
submitted and Magistrate has also applied his mind to take cognizance of the case, trial
commences. Following procedure is adopted for the purpose:

1. Delivery of statements and documents to the accused u/s 241 - A: Prior to seven days of
the commencement of trial, copies of all statements of witnesses shall be provided to accused
free of cost. It shall also include the inspection note which investigation officer records on his
first visit to the place of occurrence. It is mandatory provision for the commencement of trial.
These statements include the statements recorded u/ss 161 and 164 of the Code of Criminal
Procedure.

It should be noted that if public interest suffers from the supply of statement recorded u/s
161, it shall not be supplied to the accused.

This procedure is not applicable for the trial where case is of summary nature and
punishment does not exceed six months’ imprisonment or some sort of fine.

2. Application of mind: Taking cognizance of the case of application of judicial mind of the
Judge in the particular case.

3. Framing of charge u/ss 221 – 223: Under these sections Court frames charge after the
completion of inquiry report of police. It contains the offence committed with specific name
of offence in the language of Court. It also includes the particular as to time, place, and
person involved in such offence. Manner of the offence committed is also part of the framing
of charge.

4. Recording of evidence of prosecution u/s 173: Prosecutor may record further evidence
under law.

5. Statement of District Attorney/prosecutor: Closure of evidence and production of

documents.

6. Examination of accused and its recording u/ss 342 and 364: This statement is based on
the questions and answers without taking of oath from the accused.

a) Accused may also produce evidence of his own u/s 340: Accused shall take oath
before giving evidence of his own.

b) No cross-examination of accused u/s 340(2): Where accused has taken oath for giving
evidence, cross-examination shall not be allowed. He can produce witnesses. They are
termed as “DW” means Defence Witnesses. Where prosecution produces witnesses, they
are termed as “PW” means Prosecution Witnesses.

7. Arguments u/s 265(G): Prosecution has right to argue first. When the arguments of
prosecution completes, then counsel of accused begins his arguments.
 a) Where case is forge, acquittal u/s 249(A): Powers of Trial Court under Ss. 249 – A
being co-extensive with similar powers of High Court under S. 561 – A of Code of
Criminal Procedure, both can be resorted to. The Court without recording of evidence can
pass order of acquittal if the peculiar facts of the case justify such order. This section
empowers the Magistrate to acquit the accused at any stage of the proceedings after
hearing the prosecutor, complainant and accused and for reason to be recorded if he
considers the charge to be groundless or there be no probability of accused’s conviction
for any offence.

b) Power to remand case u/s 428: This section authorizes the appellate Court, if it thinks
that additional evidence is necessary to record its reasons and to take such evidence in the
interest of justice. Court either may take evidence itself or may remand the case the
recording of additional evidence.

c) Power of Court to acquit at any stage u/s 265(K): In Corpus Juris Secundum Part 1 –
A the word acquittal is defined as “discharged, released from a debt, duty, obligation,
charge, or suspicion of guilt, or set free or judicially discharged from an accusation”. In
Black’s Law Dictionary it is defined as, “the legal and formal certification of the
innocence of a person who has been charged with crime; deliverance or setting free a
person from a charge of guilt; finding of not guilty. Also, one legally acquitted by a
judgement rendered otherwise than in pursuance of a verdict, as where he is discharged
by a Magistrate because of the insufficiency of the evidence, or the indictment is
dismissed by the Court of non-prosecution. In Encyclopaedia Britannica, it is defined
“acknowledgement by the Court of the innocence of the defendant or defendants. Such a
judgement may be made by a jury in trial or by a Judge who rules that there is insufficient
evidence either for conviction or for further proceedings. An acquittal removes all guilt in
law. An acquittal “in fact” occurs when a jury finds the defendant not guilt.”

Procedure of trial in Court of Session u/s 265 onward: Following is the procedure of trial,
which is conducted by the Court of Session:

1. Public prosecutor conducts:

2. Supply of statements to accused:

a) First Information Report:

b) Police report:

c) Statements of witnesses:

d) Report of inquiry officer:

3. Framing of charge:

4. Reading over of charge:

5. Whether accused is guilty or he shall defend:

6. Hearing of complaint:

7. Taking evidence:

8. Summoning of witnesses:

9. Opportunity of accused to produce witnesses:

10. Filing of written statement of accused:

11. Production of defence evidence:

12. Close of evidence where not evidence of accused:

13. Acquittal or conviction:

14. Corroboration of evidence:

15. Acquittal at any stage where is not prima facie case:

How the evidence is recorded at different forums: Prosecution is responsible in criminal cases
to adduce evidence to prove its case. There are certain conditions to record evidence such as:

Presence of accused u/s 353: In criminal cases evidence is recorded in the presence of accused.
It objects that accused should know that what are the allegations are alleged against him. Also
advocate of the accused should present at the time of recording of evidence. Where presence of
accused has been dispensed with, his advocate or counsel must represent him. Exemption of
personal appearance does not mean that his representation has also been dispensed with.
Dispensation of personal appearance requires representation of advocate. Presence of accused is
presumed the presence of accused. This is not departure from the general rule that evidence must
be recorded in the presence of accused. Representation fills the space of accused.

Recording of the evidence is null and void where it is recorded without presence of either
accused or his representative. Where accused has been exempted from personal appearance, must
be represented by his counsel. The High Court as well as the Court of Session has power to
dispensed with the attendance of an accused during trial on sufficient ground, i.e., ill health or
pardanasheen lady. Section 205, gives powers to Court to dispense with the personal appearance
of the accused.

S. 540 – A also enumerates the provision of exemption from personal appearance in criminal
cases where sufficient cause exists.

The compliance with the provisions of S. 353 is mandatory. Failure to do so would entail
conviction liable to set aside.

Manner of recording evidence u/s 354: Following manner is not applicable in the case of
summary trial.
Record of trial of certain cases by first and second class Magistrates u/s 355: The Magistrate
is required to take down the evidence of each witness in the language of the Court. However if
he is unable to make such memorandum himself, he can cause such memorandum to be made in
writing, or from his dictation in open Court. Obviously such memorandum must be signed by the
Magistrate and shall form part of the record.

1. Presence of accused: Statement of the witnesses is recorded in the presence of accused.

2. Presence of pleader of accused: Where appearance of the accused has been dispenses with,
statement is recorded in the presence of the pleader of the accused.

3. Memorandum of each witness: The Magistrate prepares himself memorandum of each

witness himself in his own writing.

4. Written memorandum with own hand: Normally Magistrate or Judge is required to

prepare the memorandum of each witness or accused in his own handwriting.

5. Dictation in certain cases: Where Magistrate is unable to prepare memorandum himself, he

dictates in open Court to write the memorandum of each accused and witness.

6. Signature: Judge or Magistrate signs the memorandum, which he prepares.

7. In the language of Court: Memorandum is prepared in the language of Court whatever

English or Urdu is.

8. English or translation: Where statement so recorded is not in English or in the language of

Court, Court shall arrange its translation in English. Evidence is completed when it is fully
explained to the accused. Where languages are different as to the language of Court and the
language of the accused, interpreter is provided. Interpreter is meant for the knowledge of
accused so that he may know whether what is happening against him.

9. Statement in mother language: It is also allowed but after all it is translated in the language
of Court.

10. In open Court: Such statements are recorded in open Court.

11. Questions in the form of narration: Question asked from accused and witnesses u/s 356
and 357 are in the form of narration and not in the form of question and answers. Mode of
examination of accused is narration.

12. In the form of question and answers: U/s 342 accused and witness is examined in the form
of question and answer. Evidence u/s 340(2) is in the form of question and answer

13. Read over to accused: Law binds the Magistrate and Judge to read over the statement so
recorded before accused or witness. This section requires that the evidence of a witness when
completed should be read over to him in the presence of the accused or his pleader. The
evidence should be read after it is completed and not at the end of the day after all the
 witnesses have been examined. For the purpose of explanation of evidence to witness,
language shall be used which he knows where it is other than he does not understand.

14. Correction upon objection of witness: Where any objection is put while reading over it to
accused or witness, Magistrate is bound to correct the mistake pointed out.

15. Reading in its language: Statement is not read out blindly in English or other language, but
in his mother language, which he understands.

16. Double record: In criminal cases, the evidence is recorded in double languages, i.e., in
English and in vernacular language of the accused and witness. Law enumerates that record
of each and every question and answer shall be maintained in two languages, i.e., English
and Urdu or other vernacular language. Maintenance of double record in criminal cases is
mandatory.

17. Demeanour of witness: Magistrate or Judge is also bound to record behaviour of the witness
or accused during the taking of statement. The presiding officer recording evidence of a
witness is also supposed to record such remarks, if any, as he thinks material respecting the
demeanor of a witness while under examination. The object of this section is to give to the
higher forum some aid in estimating the value of the evidence recorded by the lower Court.
The demeanor of a witness, which goes to affect the Court in appreciating his evidence, must
be noted down at the proper stage during or at the close of examination of the witness. But it
is generally unsafe to pronounce an opinion on the credibility of the witness until the whole
of his evidence has been taken. The demeanor of the witness under other circumstances
ought not to be taken notice of by the Judge.

18. Full record: In criminal cases each and every word of the evidence is reduced into writing
except in the cases which are summarily try-able in which only substantial part of the
evidence is recorded. Maintenance of the full record in criminal cases is statutory
requirement because question of life and death depends upon evidence.

19. Signature of accused: As soon as the statement taken is completed, it is read over to
accused and he signs, where he satisfies.

Pronouncement of Judgement u/s 366: The word “judgement” is not defined in Code of
Criminal Procedure. It is a word of general import and means only, “judicial determination of
decision of a Court”. Judgement means the expression of the opinion of the Judge or Magistrate
arrived at after due consideration of the evidence and of the arguments. Judgement means a
Judgement of conviction or acquittal. Judgement is pronounced when the trial is over either in
favour or against of the accused. The word “judgement” means a decision in a trial, which
decides a case finally so far as the Court trying the case is concerned, and terminating in either a
conviction or acquittal of the accused. Judgement is not delayed unnecessarily when Court
comes at conclusion.

Following are the mode of pronouncement of judgement:

1. Open Court: Judgement is pronounced in open Court. If a Judge dies after writing his
judgement but before delivering it in open Court, the judgement is not to be considered as a
judgement, but merely as an opinion. No expression of opinion by a Judge becomes a
judgement until it is pronounced.

2. At fixed time: Judgement is pronounced at the time fixed which may either be immediately
after the termination of the trial or at some subsequent time.

3. Notice to parties: Time fixed is notified either to the parties concerned or their counsels for
the delivery of judgement.

4. Written judgment: Judgement cannot be pronounced until it is written. It is one of the

prerequisites of the pronouncement of the judgement. Acquittal of accused without writing
judgement is illegal. Judgement not written or dictated or signed on the day of
pronouncement, not a judgement thus nullity in the eyes of law.

5. Points of judgement: Judgement should contain all the points, which are considered against
the accused. The judgement must be full and complete in all respects showing that the Judge
has given his attention to every material question of fact or law. Every judgement of a
criminal Court must contain a clear statement of the points for determination, the decision
thereon, and the reasons for the decision.

6. Reasons of decision: Judge has to include also the reasons in his judgement so as to why he
has decided against him.

7. Language of the judgement: Judgement is pronounced in the language of Court or in some

other language, which party, or his counsel knows.

8. Only operative part: One operative part of the judgement is pronounced which is gist
(essence, core, outcome) of the judgement. Whole judgement is not read out.

9. Presence of accused: Judgement is pronounced during the presence of the accused. He is

taken to Court where he is within custody of the law forcing authority. Where accused is
neither within custody of the law enforcing agencies nor his presence has been dispensed
with, he is brought in Court at the time of pronouncement of judgement by force of police.

10. Dated: Every judgement is dated at the end of judgement. Where judgement is backdated, it
vitiates the judgement. In one of the case of Benazir Bhutto, judgement was backdated thus it
was objected.

11. Signed: The Judge making and pronouncing the judgement signs it.

12. Signature on each page: Where the Judge does not write judgement himself and it covers
more than one pages, Judge signs all the pages.

13. References of Pakistan Penal Code: Judge has to refer the relevant sections of the Pakistan
Penal Code under which he has adjudged the case against accused, where accused is
punished.
14. Reasons where death penalty is substituted: Where accused is tried under any offence
punishable with death penalty and Court sentences him to any punishment other than death,
Court has to mention the reasons as to why he is not sentenced with death penalty.

Exception: There are exceptions to this general rule that only operative part is read out rather
than the whole judgement.

1. Whole judgement: As far as general rule is concerned, only operative part of the judgement
is pronounced but where parties, i.e., accused or prosecution, make request for the whole
pronouncement, judgement is pronounced wholly.

2. Absence of the accused: Generally judgement is pronounced during the presence of

accused. But where presence of accused has been dispensed with due to reason certain,
judgement may be pronounced during his absence. It has further its two exceptions such as:

a) Where punishment is only fine: Presence of accused becomes immaterial where

punishment is only imposition of fine although his presence has not been dispensed with.
Presence of counsel is necessary.

b) Where accused is acquitted: Presence of accused also is not essential requirement of

law where accused is acquitted. Presence of his representative is sufficient to attract the
provisions of law.

Sentence of death u/s 368: When the death penalty is pronounced, convict is hanged by neck till
his death. He is not removed from the gallows (wooden framework for hanging criminals (iAe
îNbM)) until he dies.

Court not to alter judgement u/s 369: Once judgement has been signed and pronounced, it
cannot be altered. Only clerical mistake can be corrected without effecting the substantial object
of the judgement. As the judgement is signed, it becomes final. It is neither altered nor reviewed.
It is final in nature. It can be altered before signing, but as soon as it is signed, the role of Court
is over.

The word “judgement” for the purpose of the section means a decision in a trial which decides a
case finally so far as the Court trying the case is concerned and terminating in a conviction or
acquittal.

Copy of judgement, etc., to be given to accused u/s 371: As soon as the judgement is
pronounced and accused is convicted, a copy of judgement is given to convict.

Cost of copy: Copy of judgement is given to convict free of cost. Cost of translation is on
account of Court.

Language of judgment: Language of the copy of judgement provided to convict is either

English or in the language, which convict or his pleader understands.
Information of appeal: Where Court of Session pronounces death penalty, also shall inform to
convict about the period of appeal within which convict can prefer appeal.

Examination of legality u/s 371: High Court can demand the entire record to reach on the truth
whether punishment of death awarded is in accordance to the law and justice. This right is also
available u/s 435.

Confirmation of death penalty: Session Judge awards death sentence but this sentence requires
the confirmation from High Court. Session Judge makes a reference to High Court and sends
whole of record for the determination of High Court. Two senior judges of High Court examine
the whole case and then determine whether sentence is to be confirmed. Death penalty is not
final until High Court confirms it. High Court puts seal to validate the punishment awarded by
the Session Judge.

Powers of High Court to confirm sentence given by the Court of Sessions u/s 374 to 379:

1. Sentence of death:

2. Execution after confirmation:

3. Power to direct further inquiry:

4. Additional evidence:

5. Power to dispense appearance:

6. May confirm:

7. May pass other sentence:

8. May annul:

9. New trial:

10. Amendment in charges:

11. May acquit:

12. Signature of two judges:

Power to direct further inquiry to be made or additional evidence to be taken u/s 375: High
Court either can accept the punishment given by the Court of Session, or may acquit the accused,
or may remand the case to record fresh evidence. This order is passed while reference to High
Court.

Power of High Court to confirm sentences or annul conviction u/s 376: Upon reference u/s
374, High Court can exercise following powers:
1. Confirmation: High Court can confirm the punishment given by the Court of Session.

2. Revise: High Court has power to annul the punishment and may revise the punishment.

3. Acquit: High Court also may acquit the accused person.

Procedure in case of difference of opinion u/s 378: Where two or more judges could not
conclude the case referred to them or equally divided, case shall be referred to third single Judge
whose decision shall be final.

When the case is laid before third Judge on difference of opinion, the whole case is before him,
and while there is no doubt that he is bound to give due consideration to the facts that another
Judge of the same Court had reached on conclusion in favour of the accused, it cannot be said
that he cannot hold otherwise except upon a finding that view is perverse.

Tender of pardon to accomplice u/s 337: High Court and Court of Session has also power u/s
337 of the Code of Criminal Procedure to tender the pardon to accomplice provided he discloses
all the material facts in crime. This pardon is tendered where investigation agency could not
collect sufficient evidence of the commission of the crime. Failure of such agency urges the
demand of tender of pardon to reach the depth of the root causes of the offence.

Manner of granting pardon: Pardon is always granted in writing and mere verbal granting of
pardon is not covered under the Code of Criminal Procedure.

Recording of reasons: Authority so granting pardon has to reduce into writing the reason as to
why the pardon is being granted. Pardon can be granted to principal accused but one should not
shut eyes before exercising authority. Application of judicial mind should be there.

When pardon can be granted: At any stage of the inquiry or trial pardon can be granted
whenever prosecution or inquiry officer feels necessary to conclude the inquiry where apparent
evidence is not available to convict the offender. It also can be granted while trial in Court of
Session or High Court. Pardon cannot be granted at appellate level. It can be granted only at trial
level during the course of trial.

Who may grant pardon: Officer in-charge of the prosecution in the District may grant pardon
at any stage of the inquiry or trial. Police and Magistrate can also grant pardon. Approver does
not sign the contract with prosecution. When he appears in Court as witness, compliance of
contract is proved and it is also proved that he has accepted a pardon or pardon is granted to him.
Pardon may be granted to principal accused.

Object of pardon: Pardon is granted only in serious crimes. It objects to trace out the offenders.
There is a pardon that every crime should be punished. It is better to grant pardon to one accused
rather than releasing all the offenders. The object of a pardon is to free the individual from the
prospects of any present or future punishment which the law may inflict for the crime he has
committed and to blot out the element of guilt which attaches in respect thereof. It is in substance
and effect a contract between the State, on one hand, and the person to whom it granted, on the
other, and the State can impose conditions, precedent or subsequent, of any nature, which are not
illegal, immoral, or impossible of performance.

Appearance as witness: As the pardon is granted to co-accused he is termed as approver.

Approver means an accused to whom pardon has been granted. As soon as pardon is granted to
him, he becomes the witness of prosecution and appears as witness against other fellow
offenders. When he is made approver, he cannot be tried or prosecuted against the crime
committed.

So far as his competency as witness is concerned, he is competent witness according to Article

16 of the Qanun-e-Shahadat Order, 1984. It reads as, “a accomplice shall be a competent witness
against an accused person except in case of an offence punishable with Hadd, and a conviction is
not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

A rider to this provision is provided by Article 129, which provides that the Court may presume
that an accomplice is unworthy of credit unless he is corroborated in material particulars.
Legally, conviction of an accused in criminal case can be based solely on the evidence of
accomplice, but on factual plan corroboration of the testimony of accomplice is required.

It has been held by the Honour-able Supreme Court in Ghulam Qadir and another v. The State
that, however, in the course of judicial precedents, a rule of prudence has been evolved under
which it is always insisted that there ought to be independent corroboration of an approver’s
statement on material points suggesting a link between an accused person and a crime before
such a statement could be accepted as a safe foundation for a conviction while further holding
that the reason for the rule is obvious as there is always danger of substitution of the guilty be the
innocent in such cases.

Conditions on approver when pardon is granted:

1. Who is approver:

2. Who may grant: Only prosecution may grant pardon.

a) Prosecution:

b) Magistrate:

c) Police:

3. Object of pardon:

a) Obtain evidence: s

b) Complete disclosure: s

c) True disclosure: s

d) Whole circumstances shall disclose: s

 e) Any condition precedent: It should be lawful.

f) Any condition subsequent: It also must be lawful.

4. Weak evidence:

5. Escape of offender:

6. Actual:

Where pardon is not granted: Pardon is not granted to person who is involved in the offences
relating to hurt or qatl. Permission of victim or his heirs is obtained. It should be noted that no
one can be treated as heir in the life of other person. Approver is given a name of wretched
(ÅÍjM ½Î»g .îÄÎÀ· B· çÌÄÎÀ·) person because he is one of the actual culprit.

More than one approvers in a case: Law does not bind authority to make more than one
approvers. But it has never been seen so far, but pardon can be granted to more than one culprits
in a case.

Forfeiture of pardon u/s 339: Pardon once granted does not mean its eternity. It can be
forfeited whenever granting authority feels better the person is concealing the full information
required to conclude the case and to reach into the depth of the case. False evidence is also a
reason to forfeit his pardon.

Prosecution of approver: Person who has accepted pardon can be tried for the offence in
respect of which the pardon was tendered. Where is breach of contract, pardon stands cease to
exist. Full disclosure is essential requirement of the grant of pardon, breach of which tends its
forfeiture and thus trial. Where stipulation is broken there pardon is taken back. All concessions
come to an end at once.

Production of certificate: For prosecution of the approver on the ground that he has forfeited
his pardon by refusing to disclose the truth, production of certificate by public prosecutor is a
condition precedent for trial. The prosecution has to establish that certain essential facts were
within the knowledge of the approver, and that he had willfully concealed such facts.

Joint trial: Law has specifically provided that the person who was tendered pardon and due the
reasons certain his pardon has been forfeited, shall not be tried jointly. His trial shall be held
separately.

Procedure in trial of guilty approver u/s 339 – A: Law does not permit joint trial of approver
alongwith the other associated culprits. He is kept separately.

Recording of plea of approver: Before the trial is commenced and evidence, Court asks to
approver whether he has disclosed all the information against which tender of pardon was made
to him.
Commencement of trial: Separate trial is started against guilty approver after recording of his
plea whether he has complied with all the conditions on which tender of pardon was made. Court
does not need to go further when approver pleas whether he has provided all the essential
information to prosecution.

Cessation of bail: Right of bail of guilty approver is ceased to exist until the proceeding against
him are completed. He is kept within judicial custody until case is concluded. Detention of guilty
approver is also in his interest. Accused party may target him. Judicial detention keeps him safe
and sound. It also saves him as against any possible harm which opponent party may inflict to
him. Accomplice is not treated as a spy. He just supplies information.

Right of person against whom proceedings are instituted to be defended and his
competency to be a witness u/s 340: Law provides certain rights to accused person against
whom proceedings are started in criminal Court such as:

He is competent witness.

He has right of defense.

Right to conceal previous history as to commission of offence and conviction.

Procedure where accused does not understand proceedings u/s 341: Where accused does not
understand the proceedings of the Court due to alien language, Court provides interpreter but
where it is impossible, Court continues proceeding and conclusion is sent to High Court for
passing of order. Disability of accused by reasons of deaf and dumb is also covered under this
section. Court cannot passes sentence until High Court verifies. If Court concludes the
proceeding in his acquittal, Court shall acquit him. Where proceedings end in his acquittal,
reference shall not be made to High Court. High Court passes orders whichever thinks fit.

Power to examine the accused u/ss 342 & 364: Accused is examined u/s 342 in the form of
question and answer at any time during the trial and u/s 364 by the substantive questions are
asked. Notable thing is that this examination is made without taking oath.

Power to postpone or adjourn proceedings u/s 344: Under law police has to produce accused
before Court. Where Court thinks fit can remand the accused to police for a maximum period of
fourteen days. Shutting eyes in mechanical form Court cannot make this remand. Court must
apply judicial mind before granting remand. Where Court has taken cognizance, accused is not
sent back to police but sent on judicial remand and kept in jail for further investigation. Non
compliance with provisions of S. 344 Code of Criminal Procedure makes the detention illegal.

U/s 61 accused cannot be detained more than twenty-four hours. U/s 167 remand can be given
for a maximum period of fourteen days. This remand is related to police. S. 364 is also related
with examination of accused in the language, which he understands.

Compounding of offences u/s 345: This section merely enumerates the person who may
compound the specified offences under the law. It does not require the permission of Court.
Parties can exercise the power of compounding the offences without interference of Court. It has
list provided in this section. These are extracts from Pakistan Penal Code.

U/s 345(2) list is provided for the offences, which are compounded, with the permission of Court
and parties cannot exercise their power without interference of Court. Court should not create
any hurdle the granting of permission for compound-ability. Court should only adhere the public
interest and nothing otherwise.

Where case is pending in appellate Court, appellate Court shall grant permission for
compounding the case.

Procedure of Magistrate in cases, which he cannot dispose of u/s 346: This section is related
with the jurisdiction. Where Magistrate cannot ascertain his jurisdiction, he may refer the case
with explanation to Court of Session or High Court, whatever the case is, for its determination.
Magistrate shall transfer the case about whom superior Court shall advise.

Procedure when, after commencement of trial, Magistrate finds case should be tried by
Court of session or High Court u/s 347: Where Magistrate has taken the cognizance of case but
before signing the judgement, he finds that he has no jurisdiction to try the case and this case is
related to Court of Session or High Court, he shall send case to Court of Session or High Court.

Trial of persons previously convicted of offences against coinage, stamp laws, or property
u/s 348: This section related with the offences related with counterfeiting and previous
punishment. If the same offence is committed again, Court may inflict bigger dose to prevent the
commission of offence.

Procedure when Magistrate cannot pass sentence sufficiently severe u/s 349: Where
Magistrate tries a case finds after proceedings that the offender needs larger dose but his
jurisdiction to convict is accused is limited, he may refer this case to his superior Magistrate for
bigger dose.

Conviction on evidence partly recorded by one presiding officer and partly be another u/s
350: This section applies to a case where the previous Magistrate after having heard and
recorded the whole or any part of evidence ceases to exercise jurisdiction therein and is
succeeded by another Magistrate. This section does not apply to transfer of case from one Court
to another.

Execution of order passed under section 376 – 381: When High Court confirms the death
penalty, then case is sent back to Court of Session for its execution. Session Judge leaves no
option unless to issue Black Warrant on the prescribed manner. Issuance of Black Warrant puts a
convict into gallows. Only Session Judge is competent to issue Black Warrant who has originally
tried the case.

Black Warrant specifies the time and place of execution of death penalty. Normally time for
execution is fixed before Aazan of morning. This time fixation prevents the possible violence by
fellow prisoners. Last meeting with family member is got arranged.
Cessation of execution: Execution of death penalty is stands ceased to exist when heirs of the
killed slain tenders pardon or compromise to convict even at the last moment of execution of
death penalty. Convict is removed from the gallows alive.

Postponement of capital sentence on pregnant woman u/s 382: Where capital punishment is
passed to woman found pregnant, shall be postponed until she delivers the baby.

High Court has powers either to defer the execution of death penalty or commute the death
penalty. In case of commutation, punishment is converted into life imprisonment.

Period of detention to be considered while awarding sentence of imprisonment u/s 382 – B:

Object of this section is to compensate accused for the delay in conclusion of his trial because of
various factors generally not attributable to the accused as the State is forced to provide speedy
justice. Period of imprisonment is considered from the time of detention for such offence.

Where one year has been passed in proceeding and Court sentences for five years, then only four
years’ sentence shall be left to pass.

Power to suspend or remit sentences u/s 401: Law under this section gives powers to
provincial government to reduce the punishment given by Court. Ladies or minors are subjects of
the reduction of sentence. Where a person is above 65 years of age is granted reduction in
punishment.

President exercises his powers where Supreme Court gives punishment where in provinces
governor exercises the same power as against the punishment of the High Court.

Power to commute (exchange, interchange, put in the place of) punishment u/s 402: This
section is same as 401 with a difference that provincial government has power to change the
sentence without consents of the convict. Following punishments are the subjects of
commutation:

1. Death.

2. Imprisonment for life.

3. Rigorous imprisonment expected.

4. Simple imprisonment.

5. Fine.

Remission or commutation of certain sentences, not to be without consents u/s 402 – C:

Except in the case under sections 402, 402 – A, and 402 – B, punishment cannot be suspended,
remitted, or commuted without the consents of the victim or heirs, whatsoever the case is.

1. With consent of convict:

2. With consent of heirs:

3. Without consent of convict:

4. With condition:

5. Without condition:

6. Whole part of sentence:

7. Part of sentence:

8. General order for all:

Persons once convicted or acquitted not to be tried for the same offence u/s 403: This
section discusses the rule of double jeopardy (danger, risk, insecurity). It is constitutional
guarantee. Person once tired either convicted or acquitted cannot be tired again on the same facts
of the case by the same Court. It is also provided under Article 13 of the Constitution of Islamic
Republic of Pakistan. It is Fundamental Rights of every person guaranteed under Constitution.

S. 403 is based on the ancient maxim nemo debts bis vexari which means that a person cannot be
tried a second time for an offence which is involved in the offence with which he was previously
charged. The same principle autrefois acquit (formerly acquitted) and autrofois convict
(formerly convicted) is prevailing in the common law. The section is based on the principle of no
mans life and liberty shall be twice put in jeopardy for the same offence on the same set of facts.

S. 403 alongwith S. 26 General Clauses Act provides procedural shield. Conviction for the
second time on the same facts is not legal. Accused having once been acquitted by a Court of
competent jurisdiction and such finding having attained finality, his conviction on the same facts
again by the Court is not permissible.

Where person is convicted u/s 379 of Pakistan Penal Code for the offence of theft, cannot be
tried again in the same set of facts.

Where case is tried by the Court incompetent to take cognizance is not bar to try the same case
by the Court competent.

Exceptions: This general rule of double jeopardy has three exceptions such as:

1. Distinct offence: A person can be convicted again for the offence, which is distinct offence
for which person was convicted previously. A person can be tried again for distinct offence
for which separate charge is made. For example, where a person causes grievous hurt to a
person and tried for that offence, can be tried again where person injured dies subsequently
with the direct cause of such injury.

2. Direct consequences: Where later on discovers that the result is the direct consequence of
the same offence, person can be tried again. For example, where a person is charged with
 offence of grievous hurt can be tired later on when person injured dies with direct
consequence of such injury.

3. Concealed facts: Where person tired, but the Court did not know some facts of the case, and
person convicted or acquitted, can be tried again for the facts so concealed at that time where
the facts are discovered later on.

4. Trial by incompetent Court: Where offence is tried by the Court incompetent having no
authority to try the case can be tried the same offence again by the Court having jurisdiction.
A person can be tried again where first trial was not conducted under the competent Court
having jurisdiction. Lapse of time shall be immaterial. This question shall not arise, where
Court was competent.

Appeal: According to Osborn’s Dictionary appeal is defined as “any proceeding taken to rectify
an erroneous decision of a Court by bringing it before a higher Court.

The word “appeal” as defined in the Oxford dictionary means “to remove a case formally from
an inferior to a higher Court” with a view to ascertain whether the judgement is sustainable
having been passed by a Court of competent jurisdiction, sentence being awarded according to
law and proceedings conducted conforming the provision so provided.

The right of appeal is a matter of procedure. It is a substantial right created by a statute. Appeal
is a right created by statute and only exercisable when expressly given. No appeal lies from any
judgement or order of the criminal Court except provided by the Code of Civil Procedure or by
any other law.

The word “appeal” is not defined in the Code of Criminal Procedure. It is a reference of case of
decision to higher authority or Court. It is authenticity of correctness of irregularity committed at
lower level. Where any mistake or technical error is committed at original level, it is referred to
higher level. It is called appeal. Right of appeal is statutory.

The right of appeal is a matter of procedure. It is a substantial right created by a statute. Appeal
is a right created by statute and only exercisable when expressly given. A right of appeal is
neither natural nor inherent but to be expressly provided for. The statute also provides forum of
appeal.

Cases in which no appeal lies: Although appeal is statutory right of convict, but at the same
time there are certain cases for which appeal is not available. These cases can be summarized as
under:

1. No appeal lies when accused pleads guilty u/s 412: Where accused is guilty of offence for
which he is convicted, appeal shall not lie. Confession excludes from the statutory right of
appeal. Where accused is guilty and admits that yes I have committed such offence and Court
convicts him on his confession, right of appeal shall be extinguished.

2. No appeal in petty cases u/s 413: Where High Court passes sentence to six months and fine
to rupees two hundred only, appeal shall not be preferred. Where Court of Sessions or
 Magistrate passes sentence not exceeding one month and fine upto rupees fifty, right of
appeal shall also not be available.

3. No appeal from summary convictions u/s 414: Where Magistrate tires case summarily and
passes sentence of fine only which does not exceed to rupees two hundred, appeal shall not
be accepted.

4. Dismissal of complaint u/s 203: Where private complaint lodged u/s 200 is dismissed u/s
203, appeal shall not be entertained.

Exceptions: There are certain exceptions to the rule where no appeal lies generally, such as:

1. Legality and length of sentence u/s 412: Although where sentence is based on confession
right of appeal is taken away, but any illegality committed in trial or length of sentence can
be appealed.

2. Substantive sentence u/s 413: Although in petty offences right of appeal is not available but
where Court passes substantive sentence in default of payment of fine, appeal can be
preferred. This is another exception where right of appeal is not available generally.

3. Combined punishment u/s 414: Where Magistrate passes sentence combined with other
offences, appeal can be preferred. Where one-month sentence is passed u/s 379, one-month
u/s 427, and ten days u/s 447, it comes total sentence two months and ten days, appeal is
admitted on aggregate sentence.

4. Special right of appeal in certain cases u/s 415 – A: Although right of appeal is not
available in petty offences, but where more than one persons are tried and convicted and their
aggregate punishment comes more than one month, right of appeal is not available in normal
circumstances. But where one accused is sentenced for one month, he shall have right of
appeal. Where one shall have right of appeal, all shall acquire right of appeal. It is only in the
case where joint trial is conducted. All the rest convicts shall also get right of appeal where
one gets right of appeal after joint trial.

Appeal in the cases of acquittal u/s 417: Under this section only Provincial Government can
prefer appeal only to High Court against the orders of acquittal. Public prosecutor files such type
of appeal.

Where accused is acquitted, government goes in appeal but on the other hand where accused is
convicted, he goes to appeal. Person either natural or legal so defeated goes to appeal.

What is appeal:

What is acquittal:

Who makes such appeal:

Why appeal is preferred:

Procedure on appeal against acquittal: Following is procedure of appeal against the order of
acquittal:

1. Government orders to public prosecutor:

2. Appeal within thirty days:

3. Grant of leave by High Court:

4. No appeal where no leave by High Court:

5. Enclosure of judgement with memorandum of appeal:

6. Call of record:

Appeal from acquittal sentence: The provisions of S. 367, Code of Criminal Procedure, is
mandatory. There is no distinction in awarding sentence u/s 302, Pakistan Penal Code, in original
trial or in appeal from acquittal: the normal sentence is death unless there are extenuating
(mitigating, justifying) circumstances.1[1]

Principles in dealing with appeal from acquittal are:

1. Presumption of innocence of accused becomes double.

2. Supreme Court would not interfere unless all grounds of acquittal were not supportable from
evidence on record.

3. Conclusions reached by courts below were such that no reasonable person could conceivable
reach the same.

4. Judgment of acquittal is perverse and the reasons given for it are artificial and ridiculous.

5. Supreme Court interfere in exceptional case on overwhelming (irresistible, awesome) proof

resulting in irresistible conclusions and that too, with a view only to avoid grave miscarriage
of justice and for no other purpose.2[2]

1[1]
(DB) PLD 1960 Pesh. 132 State Vs. Inzar Gul.
2[2]
PLJ 1995 SC 351 Sikandar Hayat Vs. Muhammad Nawaz etc.

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Appeal from sentence of High Court u/s 411 – A: Where High Court hears a case from
original side and convicts accused, accused may file an appeal to High Court upon the orders of
provincial government.

Supreme Court is the highest Court of appeal. It hears appeals against the decisions of High
Court. High Court hears appeal as against Court of Sessions. And Court of Sessions hears
appeals from the Courts of Magistrates.

Where Magistrate tries the case of sedition u/s 124 – A of Pakistan Penal Code, appeal is directly
made to High Court keeping in view of the importance of matter.

Where Court of Sessions tries cases of Hudood, appeal is made to Federal Sharaiat Court rather
than High Court. Federal Sharaiat Court takes direct cognizance where Hudood crimes are
involved.

No appeal in certain cases when accused pleads guilty u/s 412: There is no provision of
appeal where person guilty is convicted on the grounds of confession before Magistrate. There is
only one ground on which he can make an appeal. He can challenge the sentence but upto the
extent of the quantum of the sentence. Where evidence is wrongly recorded for conviction, it
becomes also ground of appeal.

Where punishment is given in default of payment of fine, no appeal lies.

Power of Appellate Court in disposing of appeal u/s 423: Where appeal is preferred against
the acquittal, what High Court can do? High Court can do:

1. Set aside altogether: Where u/s 379 High Court is obliged to confirm or otherwise the death
sentence, High Court can set aside the death penalty altogether in the dispensation of justice.

2. Uphold sentence: High Court may confirm the sentence given by the Court of Session.

3. Remand of case: Where any irregularity is observed in trial or recording of evidence or

omitting the substantial evidence, case is sent back for retrial.

4. Reduction of quantum of sentence: Where a person has committed offence at first time,
and punishment given is manifold, Court of appellate cannot enhance his sentence but can
reduce his punishment.

5. Reverse of acquittal:

6. Further inquiry:

7. Retrial:

Appeal-able orders and judgements u/s 405 onwards: Following are the orders and
judgements against which appeal lie:
1. Rejection of application for restoration of property:

2. Order of security of good behaviour:

3. Refusing surety:

4. Sentence of Assistant Session Judge or Judicial Magistrate:

5. Sentence by Court of Session:

6. Sentence by High Court:

7. Against joint conviction:

8. Against acquittal:

9. Order to pay compensation:

10. Order of forfeiture of bond:

11. Disposal of property:

Procedure in case of certain offences affecting the administration of justice: Where offences
are committed against public or production of document in false evidence, Court can punish the
offender in summary trial. Following punishments can be given:

1. Imprisonment not exceeding three months and/or fine not exceeding to Rs. 1,000/-.

2. Imprisonment not exceeding one month and/or fine not exceeding to Rs. 50/-.

3. Fine not exceeding to Rs. 50/-.

Forwarding of cases for trial by Courts having jurisdiction u/s 476 – A: Only Court before
whom such offence is committed gets jurisdiction to try it or higher Court can try it. Supreme
Court can try offences where lower Court does not try it. No private complaint lies on Court
against such punishment.

S. 476 – A deals with the forwarding of case for trial by Courts having jurisdiction to take
cognizance u/s 476 of Code of Criminal Procedure on the fining that the case should not be tried
under that section for reason relatable to the facts and circumstances. In that situation after
recording the facts constituting the offences and the statement of the accused person the case can
be forwarded to another Court having jurisdiction to try the same. The wording of S. 476 – A of
Code of Criminal Procedure makes it clear that the Court ordering a prosecution has to come to a
definite finding that it is expedient in the interest of justice that an inquiry should be made in
respect of the offence alleged to have been committed.

Procedure in certain cases of contempt u/s 480: Where contempt is committed in term of
obstruction to enforce punishment, insult of Court, or destroy the material facts, Court shall hear
the case same day before time is over. Proceedings on next day are nullity in the eyes of law thus
void.

Where offender deserves for bigger dose, bigger does is given to set him right. Reference can be
made to competent Court for regular trial for bigger dose. Only contempt u/s 480 is try-able on
same day.

Court may take cognizance on same day and can punish the offender with fine not exceeding to
Rs. 200/- and in case of default of payment of fine simple imprisonment not exceeding one
month.

Power to issue direction of the nature of a Habeas Corpus u/s 491: It means let the person
being or produce in Court for examination. It is a summary procedure. Person so detained can be
produced in Court through bailiff.

Powers of the superior Court: Law invests certain powers to superior Courts for the end of
justice. These are supervisory powers, which prevent the miscarriage of justice. Superior Courts
control the lower Courts as to correctness of the proceedings, illegality, and irregularity. They do
not interfere in the proceedings of trial Courts generally. High Court or Court of Sessions
exercises these powers. These powers are exercised where trial is not conducted in accordance to
law. Following directions can be issued:

1. Order to bring detainee:

2. Set at liberty:

3. Prisoner in Court for examination:

4. Bring prisoner for Court martial:

5. Transfer to custody for trial:

6. Cepi corpus: It means, “I have taken the body.” When a writ of capias or attachment is
directed to the sheriff for execution, when he has the defendant in custody, he returns the writ
with an indorsement stating that he has taken him, called a return of cepi corpus. Where writ
of attachment has been executed, body kept is released by the order of High Court.

Exception: These orders are not applicable on the persons who are detained under any
provisions meant for preventive detention.

Examination of accused u/s 364 is in the form of questions and answers. Where this procedure is
not applied and brought into the knowledge of superior Courts, i.e., High Court or Court of
Sessions, they intervene to prevent such irregularity and illegality. Everything which is contrary
to law vitiates the trial therefore it is set aside. It does not mean that entire trial is void but
partially upto the extent of alleged irregularity or illegality.
S. 439 empower to High Court where S. 439 – A empowers to Court of Sessions to exercise such
supervisory powers. Where Court acquits accused in revision no subsequently conviction can be
imposed but appellate Court may convict subsequently.

Procedure in case of accused being lunatic u/s 464: Where Magistrate finds that the accused is
a person of unsound mind and incapable to defend himself, he can send him to Civil Surgeon to
examine his capacity to understand. Where it is proved in medical examination that accused is
person of unsound mind and incapable to defend himself, Magistrate shall postpone further
proceedings until his recovery.

Person who is incapable to understand proceedings can be sent either to jail or hospital keeping
in view of his ailment for proper treatment and custody until he may face trial.

Where trial has been started it will not postpone and in case of acquittal, he shall be released
otherwise accused shall be handed over in safe custody.

Release of lunatic pending investigation or trial u/s 466: Custody of lunatic can be given to
his near relative or friend to avoid any injury to himself or to any other person. Accused is not
allowed to go alone keeping in view of his mental condition.

1. Inquiry whether he is lunatic:

2. Examination by Civil Surgeon:

3. Examination of Civil Surgeon:

4. Release on bail:

5. Postponement proceedings:

6. Properly care in jail where no security is provided:

7. Appearance when required:

8. Safe custody where is no security:

9. Resume inquiry when capable:

10. Continue where he was sane on offence:

11. Acquittal where he was lunatic at offence:

12. Custody to relative or friend:

Irregularities, which do not vitiate trial u/s 529 onward: Following irregularities causes trial
not to vitiate. It should be kept in mind that such irregularities committed u/ss 529 and 530 are
those under which Magistrates have not authority. They must be summarized as under:
1. Issue of warrant u/s 98:

2. Investigation order u/s 155:

3. Issuance of process u/s 186:

4. Taking cognizance u/s 190:

5. Transfer of case u/s 192:

6. Tender of pardon u/ss 337 and 338:

7. Sale of property u/ss 524 and 525:

8. Withdrawal of case and trial self u/s 528:

Irregularities, which vitiate trial u/s 530 onward: Following irregularities causes trial to
vitiate. They must be adhered in trial:

1. Trial without jurisdiction:

2. Warrant without jurisdiction:

3. Arrest without jurisdiction:

4. Misleading of accused in framing charge:

5. Alteration in charge without defence to accused:

6. Back dated judgement:

7. Act contrary to law:

8. Deficiency in particulars of warrants and summons:

9. Non-delivery of statements to accused prior trial:

10. Sentence in excess of law:

11. Taking cognizance without warrant in non-cognizable offences:

12. Lack of defence opportunity:

13. Sentence on confession without corroboration:

14. Trial in the absence of accused:

15. Evidence in the absence of accused:

16. Trial without issuing process: s

Power of trial and appellate courts to dispose of property u/ss 516 – A to 525: This is the
property against which offence has been committed. This property can be disposed of in this
manner:

1. Sale of perishable items:

2. Sale of explosive to government or authorized agent:

3. Destruction of intoxication:

4. Confiscation:

5. Delivery to entitled person (purchaser):

6. Restoration to real owner:

7. Delivery to Magistrate as taken by police:

8. Sale and payment to innocent person:

9. Destruction of libelous material:

10. Sale of property of unknown person: s

Competent courts and persons to sworn affidavit u/s 539: Following are the persons and
courts before whom affidavit can be sworn:

1. High Court:

2. Officer authorized:

3. Any Commissioner:

4. Any other person appointed:

5. Any Judge:

Who may draw it: Only public servant may draw it.

Who should it contain: It contains all facts.

Why allegation by person during trial: It is used as evidence.

Who is liable: Public servants are required to submit such type of affidavits.
Affidavit evidence: There are only three sections in this Code of Criminal Procedure, i.e., Ss.
74, 526, and 539 – A, according to which a fact may be got proved by affidavit. Affidavits not
covered by these sections are not legal evidence not can be admitted in evidence without
confronting its maker at trial. Mere filing of such affidavits would not be a sufficient factor to
share the veracity of the story put by complaint duly supported by the eyewitnesses. Procedure of
swearing on Holy Quran is not applicable in criminal cases. The Sessions Judge or the
Magistrates, before whom any criminal proceeding is pending, in which an affidavit is to be
filed, would normally have authority to receive evidence in the case. If he has such authority to
receive evidence, he has power to administer oath himself to the person concerned or to
administer oath through an officer empowered by him in this behalf, by virtue of S. 4 of the
Oaths Act, 1873. Since an affidavit is basically a statement on oath, the Sessions Judge or the
Magistrate having authority to receive evidence, would obviously have authority t attest as
affidavit. Such affidavit being a document could not be legally treated as an affidavit and,
therefore, inadmissible in evidence as affidavit. Such document, however, can be put to Oath
Commissioner for purpose of proving that witness signed it and to have it exhibited.

Muslim shall be required to repeat the, “I swear by Allah, the Almighty that I will give true
evidence; and if I give false evidence, I would thereby invoke wrath and curse of Allah on me.”

Hindu shall be required to repeat the, “I solemnly affirm in the presence of Almighty God that
what I shall state shall be the truth, the whole truth and nothing but the truth.”

Grounds to make application for the transfer of cases from one subordinate Court to
another u/s 526: Following are the grounds:

1. For fair and impartial trial or inquiry: Where is doubt that trial court may prejudice to
accused, application for the transfer of case can be made for fair trial.

2. Difficulty in question of law: Where court below deems difficulty to determine the question
of law or deems unable to determine the question of law, may request for the transfer of case.

3. Nearness of the place of offence: Where case is tried at distance as to convenience to

accused, case can be transferred to the place near to accused.

4. General convenience of parties and witnesses: Law does not require the suffering of
witnesses therefore for their convenience case can be transferred to other place.

5. For the end of justice: Where impartiality or threat to accused is felt, application for the
transfer of case can be made.

6. Incompetent to try: Where court feels its incompetence to try the case may request its
higher court for the transfer of case.

7. On report of lower Court: Higher court may transfer the case on the application of lower
court due the certain reasons.
8. Upon taking cognizance (no one can be Judge of his own cause: Where judge is
personally is interested, case must be transferred to other court.

Arrest without offence u/s 149 onward: A Police Officer can arrest any person though he has
committed no offence on the following grounds:

1. Preventive detention:

2. Information of design to commit offence:

3. Apprehension of breach of peace:

4. Injury to public property:

5. Vagabonds:

6. Life beyond reasonable sources:

7. Suspect of offence:

8. Cognizable offences u/s 154:

9. Habitual robbers u/s 54 & 65:

10. Offences committed before Magistrate:

11. House breaker:

12. Proclaimed offender:

13. Having stolen property:

14. Receiving stolen property:

15. Causing obstruction in public duty:

16. Escaped person:

17. Attempt to escape from lawful custody:

18. Private arrest:

Powers of Magistrate or Police Officer to disperse unlawful assembly u/ss 127 to 131:
Following are powers:

1. Command to disperse:

2. Use of civil force:

3. Arrest:

4. Confine:

5. Punishment:

6. Use of military force:

7. Little force may use:

8. Little force and little injury:

Prosecution of Magistrate or Police Officer Chapter IX u/s 132: Magistrate or Police Officer
can be prosecuted acting under Chapter IX of the Code of Criminal Procedure. It requires the
permission from Provincial Government. But in certain cases they are protected u/s 132.
Following are the exemptions:

1. No prosecution without permission: Prosecution is not allowed unless Provincial

Government permits.

2. Good faith: Any Police Officer or Magistrate acting in good faith under Chapter IX cannot
be prosecuted in Criminal Court.

3. Any officer: Any officer acting u/s 131 to disperse unlawful assembly is not liable to
prosecute in Criminal Court.

4. Any person: Any person who is engaged by the government forces u/ss 128, 130, and 131 –
A, cannot be prosecuted.

5. Inferior officer: Neither officer of higher rank nor officer of inferior rank can be prosecuted
who have acted in good faith to disperse unlawful assembly.

6. Only superior Court:

Preventive measures of Magistrate regarding the immovable property in dispute u/ss 145
and 146: Following measures can be adopted:

1. Order to parties to attend Court:

2. Written statements of respective claims:

3. Display of summon order at place:

4. Recording of evidences:

5. Attachment until decree:

6. Possession till legally evicted:

7. Making party of legal heirs:

8. Sale of perishables:

9. Withdrawal of attachment where no breach:

10. Appointment of receiver:

11. Prohibition to interfere in right:

Security for good behaviour u/ss 106 to 110: Under following circumstances security for good
behaviour can be demanded:

1. Breach of peace:

2. Abetting assault:

3. Criminal intimidation:

4. Keeping peace:

5. Seditious matters’ publication:

6. Vagabonds:

7. Having no ostensible means of subsistence:

8. Habitual offender:

9. Habitual robber:

How the public nuisance is removed u/s 133:

1. What is: It is a deprivation of a general public from the right or enjoyment at large.

a) Unlawful obstruction of way:

b) Trade injurious to health:

c) Construction of any building causes injury:

d) Construction is likely to fall:

e) Un-fencing:

f) Confinement of dangerous animals:

2. How can be removed:

a) Upon receiving of police information:

b) Cognizance of Magistrate: Only Magistrate of First Class can take cognizance.

c) Order of Magistrate:

i) Responsible shall remove:

ii) To cease carry such trade:

iii) Removal of goods:

iv) Prevent erection:

v) Repair building: Responsible shall repair the building.

vi) Support tree:

vii) Alter to dispose:

viii) To fence tank:

ix) To destroy or confine dangerous animal:

 Updated: Saturday September 08, 2012/AsSabt Shawwal 22, 1433/Sanivara Bhadra 17,
1934, at 09:00:32 PM

Course Contents:

1. Medical Jurisprudence (with reference to autopsy and injuries).

Books Recommended:

1. Medical Jurisprudence & Toxicology by Dr. Moin-ud-Din and Mian Zahoor-ud-Din.

2. Medical Jurisprudence and Toxicology by Dr. S. Siddiq Husain and N. Pervaiz Ahmed
Buttar.

Medical jurisprudence means knowledge of medical science for legal purposes. There are two
types of laws, i.e., civil and criminal. Criminal law deals with hurt, death, and purely with human
body. Some crimes are committed to cover actual offence like self induce. Some time a man is
killed with injury and put into water or fire to conceal its evidence.

Importance of medical jurisprudence: This science is used in the following matters:

1. Right investigation: Body gets lose when injury is inflicted to it. It requires proper fixation
of liability on the part of offender.

2. Punishment: Proper investigation helps in the punishment to the offender.

3. Involvement: This science discriminates, the person actually involved and one who is
wrongly charged.

4. Self-defence: Person maliciously involved in crime may put the results of the reports or
laboratory in his defence.

5. Acquitance: Medical jurisprudence may get acquitted the person involved wrongly in an
offence.

Terms, which are used in this subject, are as follows:

1. Physiology: Knowledge, which deals with structure of human body, is called physiology or
anatomy. It also deals with the functions or system of the organs of body during the time of
health. There may be group of organs, which perform or help in performance of single
function. A man eats food, his body absorbs and digests it and finally it is made part of the
body.

2. Vicera: It is the function of single organ.

3. Pathology: It is the function of organs during the disease. It is knowledge and study of
diseases.
4. Histology: It is normal and abnormal system of internal body. It is the study of body tissues.

5. Microscopy: It is part of histology.

6. Biochemistry: It is examination of the samples taken from human body like blood, urine,
sliva etc. The study of chemicals processes in organisms.

7. Cutameous: Part of bisep, which is inner part and trisep, which is outer part.

8. Pharmacology: In normal person medication may react in term of fever. It deals with the
action of medicines, in different parts of human body during health. Science of properties and
values of medicinal drugs.

9. Therapeutics: Branch of medicine dealing with healing remedies.

10. Toxicology: It is reaction of over-dosage. Science of poisonous (toxic) substances.

11. Endotoxin: Internal poison, internal toxin.

12. Medial line of body: Line, which divides body into two equal parts.

13. Cephalic side: Side, which is towards head. Pertaining to head.

14. Distil side: Side, which is away from head.

15. Proximal part: It is a part of body, which is towards body attached or fixed or near to body.

16. Limbs: They are fixed parts of the body. Projecting appendage of the body, arm, leg, wing,
large, or main branch of a tree, mischievous child. Injured part of body.

17. Trunk of body: Two parts of body linked with it are limbs. Tubular limb on the face of an
elephant.

18. Heart: Crdium is called heart. Bodily organ which pumps blood.

19. Lung: Lungs are called pulmon. Internal organ responsible for transferring oxygen into the
bloodstream.

20. Head: Head contains skull and face. Skull contains brain. Uppermost part of the body
containing the brain.

21. Face: It is apart from brain. Part of the body with the eyes, nose, and mouth.

22. Moveable part of brain: It is fixed in skull. Main organ of the central nervous system.

23. Vertebra (singular) or vertebrae (plural) are 33 or 34 in numbers: Each of the section of
the backbone.
24. Peritoneum: It is a layer of connected tissues of abdominal organs with each other. Serous
membrane lining the abdominal cavity.

Neck contains seven vertebrae. First vertebra is called cervical atlis and second one is called
cervical axis.

Next twelve vertebrae are called thoracic, next five linoler, next five pelvis, next four or five are
called coccyx.

Body of trunk is divided in two portions, thoracic and abdominal. Basic structure is based on
bones. Every bone contains joints, which help in locomotive.

Skin

Dermis
Hypo-dermis Epidermis
(sensitive part of
(inner part) (outer part)
skin)

Sub-coetaneous – connective tissue.

Renal – Kidney

Gastrium – Stomach

Cardium – Heart.

Inter stitial space.

Pulmon – Lungs

Pericardium – which covers the heart.

Pericardial – fluid.

Plura – Layer of the lungs which covers.

Synovial fluid – It is fluid, which rests in between bones.

Brain – Menengies.

Dura Meter Spine. Part of the term “dura mater” membrane which covers the brain and spinal
cord.

C. S. F. (Cerebro brain Spinal Fluid).

Lever – Hepatum.

Corner Court: An officer with the duty of inquiring into the matter of death of any person who
is slain or dies in suspicious circumstances, or in prison. In Pakistan a Coroner is an officer
appointed by the Government to hold an enquiry of deaths suspected as unnatural and suspicious
in his jurisdiction and only Karachi city possess Coroners. In other towns District Magistrates
and other Magistrates are ex-officio coroners, although they seldom act as such. Coroner’s Court
is a Court of enquiry and not a Court of trial.

Duties of a Coroner: Following are the duties of Coroner:

1. Enquiry of unnatural deaths: He is responsible to hold enquiry in a case where dead body
lying in his jurisdiction, in those cases mode of death is sudden and unnatural.

2. Enquiry of suicide: This Court holds enquiry where mode is death is suicide or homicide
(killing during self-defence or justifiable). Manslaughter is a killing due to irresistible
impulsion while murder is unlawful and unjustifiable killing of human being.

3. Enquiry of accident and poisonous: Holding of enquiry of deaths caused in accidents and
by poison.

4. Enquiry of roadside accident: Where any accident is happened at roadside, it also comes
under the jurisdiction of Coroner Court. This Court holds enquiry on such accidents.

5. Enquiry of police custody or in school: If death is occurred during police custody, in the
Court of Law, in jail, while asylum, or in certified school, Coroner Court holds enquiry to
find out the reasons of the death.

6. Order for postmortem: This Court may also order for the postmortem or may call medical
man to conduct such thing so that root cause of the death may be found out.

7. Summoning medical personnel: Coroner Court may summon the medical personnel who
have conducted postmortem so that they may give evidence. They may be called in coroner
Court.

8. Order for identification: This coroner Court may order for the identification of the dead
body.

9. Appointment of deputy coroner: When coroner temporarily leaves the Court due to any
reasonable cause such as fever, may appoint deputy coroner to continue the functioning of
the Court.

Difference between Coroner and Magistrate Courts: Both of the courts are different to some
extent. Differences are highlighted as under:
 Particulars Coroner’s Court
1. Type of Court: It holds mere enquiry.
2. Presence of Accused: Presence of accused is not
necessary during the
enquiry.
3. Punishment: Coroner Court mere
conducts enquiry by cannot
impose fine or punishment.
4. Contempt of Court: This Court does not follow
the rules of contempt of
Court but if contempt is
committed within the
precincts (area) of Court,
Court may punish the
offender.
Difference of inquest (enquiry): Inquest of both coroner and magistrate Court is different to
some extent such as:
Particulars Coroner’s inquest
1. Investigating officer: It is superior inquest than of
police because expert
person conducts it.
2. Place: Uptill now it held only in
Karachi and all the other
areas are so far excluded.
3. Informing Magistrate: Person who conducts the
inquest is not required to
inform Magistrate the
inquest.
4. Witnesses: Jury helps in reaching to
conclusion. Witnesses are
not required to sign the
statement.
Magistrate’s Court
It is a Court of trial.
Presence of accused is legal
requirement during trial.
Upto the extent of
jurisdiction, Magistrate
imposes fine and
punishment.
Every contempt is liable to
punish regardless the area
of commission of offence.
Magistrate has power to
punish offenders.
Police inquest
Qualification of medicine
and law is not obligatory
where police officer
inquests.
It is not held in Karachi. All
the rest of Pakistan is
subject of it.
Police has to inform first,
Magistrate then inquest is
started.
Jury helps chosen at random
and require to sign the
report.
5. Warrant of arrest: For the purpose of inquest
he can issue warrant of
arrest of the accused.
Only Court can issue
warrant where police is
involved. Police itself
cannot issue warrant. Police
can arrest accused only
where offence is
cognizable.

6. Summoning of doctor: Whenever presence of Police cannot call doctor for

doctor becomes necessary, evidence.
it may call doctor to give
evidence.

7. Exhumation: He can order for unearth or Police cannot order for the
disclosed of the grave. exhumation.

8. Analysis of viscera: He can direct analysis of He cannot direct the

any of the organs or of their analysis of viscera.
contents.

Conduct money: Court pays this amount to medical practitioner to cover his travelling expenses
while coming for evidence. In case conduct money does not cover the expenses, doctor may
point out its inadequacy. In criminal cases conduct money is offered after the evidence is
recorded.

Exhumation (unearths or disclosed of grave): When any unnatural death is happened and dead
body is put into earth to conceal the causes of death then examination of dead body is required to
determine the causes of death and to fix the liability to accused. Grave is disclosed and dead
body is taken and examined for the suspicion of a death because of poisoning or any other foul
play.

Order of exhumation: Only District Magistrate, Coroner, or Sub-Divisional Magistrate can pass
such order for the disclosure of grave. A police officer is not authorized to pass such orders.
Exhumation is conducted during the presence of Magistrate and not in the presence of police
officer. This function can be performed only day light. To start work in evening or night is
prohibited. Preferable time for the exhumation is before the commencement of body
decomposition. In hot climatic conditions, dead body undergoes decomposition soon. As the
time passes, required results become quite difficult.

Time limit for exhumation: Pakistan and England do not follow any time limit for the purpose
of exhumation. But other countries, such as:

1. France allows 10 years,

2. Scotland provides 20 years, and

3. Germany permits 30 years for the disclosure of grave.

Identification: It is determination or establishment of a person either living or dead by

recognizing him by certain characteristics which are unique for him, i.e., finger print etc. To
identify a thing or person is to prove that the thing or person produced or shown is the one in
question in the proceedings.

Need of identification in living persons: Identification is necessary in the living persons in

following circumstances:

1. All medico-legal cases.

2. Absconding (escape or run away) criminals and soldiers.

3. Accused of murder.

4. Accused of assault of rape.

5. Mixing up of newborn babies.

6. Children who have been lost.

7. Adults who have lost their money due to any cause.

8. Property claims.

9. Insurance purposes.

10. Claim of pensions.

1. Importance of fingerprint:

a) Recognition:

b) Determination of liability:

c) Punishment to offender:

d) Two matcher in two millions:

2. In what cases:

a) Theft:

b) Murder:

c) House breaking:

d) Suffocation:
3. Methods:

a) Layer of printer’s ink:

b) Live scan:

4. When conducted:

a) To determine offender:

b) To determine offence:

While conducting an examination for identification it should be told very clearly that facts can
go against the person.

The consents should not be taken in front of the police officers. It is very essential to obtain the
consent of the person before the conduct of examination. The person can refuse of submit
himself for examination.

Need of identification in dead persons: Identification is necessary in the dead persons in

following circumstances:

1. Explosions.

2. Fires.

3. Railway or plane accidents.

4. Floods.

5. A death where foul play is suspected.

Identification of race: Identification of race is important when people of different races are
present as in air crashes, railway accidents, and in unclaimed dead bodies found on roads. In
Pakistan the main differentiation is between a Hidnu and Muslim, the latter is circumcised
(remove the foreskin of males) whereas the former is not.

Following points may help in identification of dead persons:

1. General look of the person.

2. Cephalic index.

3. Clothes.

4. Complexion.

5. Scalp hair (skin of the head excluding face).

6. Eyes.

7. Lips.

8. Tuft (cluster of hairs).

Identification of sex: Determination of sex in living persons is no problem at all. It is easy in

normal cases, from external examination, but difficult in cases of hermaphroditism, concealed
sex, advanced decomposed bodies, skeletons, and sometimes in a child with un-descended
testicles. It is required in the following cases:

1. For simple identification in the living or dead person.

2. For the purpose of heir-ship, disposal of property, marriage, education, and liability for
military service.

3. In case of impotence, rape, legitimacy, divorce, paternity, etc.

Examination should be thorough (a) of external genitalia and (b) internal bimanually and by
rectal palpation and microscopy of the gonads. If only the anterior abdomen is present and
external genitalia have decomposed, their distribution of hair may give a clue to the sex.

Identification of age: Identification of age is classified into two broad groups, i.e., identification
in intrauterine life and identification in extra-uterine life.

The estimation of age is only possible with some certainty upto 25 years. After that there is little
on which to base an accurate estimation of age. Certain retrogressive changes may aid in later
life, but it is more or less a guess.

1. First month: Ovum is ¼ inch in diameter and is very difficult to identify.

2. End of second month: The ovum diameter is ¾ inch. Fingers and head may be seen. The
neck is not formed.

3. Third month: Foetus is well developed and is 3 – 4 inch long. Neck is formed. Limbs are
well developed. Fingers and toes are visible. Sex differentiation is not present.

4. Fourth moth: Size is 5 to 6 inch. Sex differentiation is possible. Eyebrows are absent.
Umblicus is very near the symphysis pubis.

Quickening is a subjective feeling where the mother feels kicking movements of the foetus
inside her.

In primi-gravida it appears at 18 – 20 weeks.

In multi-gravida it appears at 16 – 20 weeks.

 Importance of quickening: Punishment given to the mother for killing the baby is more if
quickening had already appeared at that time. Quickening is a sign of foetal life but much
importance cannot be attached to this because its time of appearance is not constant. It varies
with the individuals.

5. Fifth month: Size of foetus is 7 – 8 inch. Ossification centers starts appearing calcaneum
shows a centre of ossification, which on transverse section looks, like a small pinpoint
haemorrhagic spot. Later on, it occupies the greater part of the end of the bone. Ossification
centre appears in the upper division of the sacrum. Eyebrows are absent. Meconium is
present in the stomach.

6. Sixth month: Size of the foetus is 10 – 11 inch. Ossification centers in all four divisions of
the sternum. Eyebrows start forming. Eyelids are adherent as earlier. Testis (in male) lies
near the kidney. Meconium comes into the upper part of the small intestine. The jejunum is
full.

7. Seventh month: Size of foetus is about 14 inch. Ossification centre appears in the talus
bone. Eyelids are not adherent, eyes can be opened and eyelashers have started forming.
Lanugo hairs are present on the scalp. Vernix caseora is present. Testis starts descending.
Usually it is near the internal inguinal ring. Meconium is present upto the ascending colon.

8. Eight-month: Last piece of the sacrum shows the presence of an ossification centre. Hairs
are present all over the body and are darker and longer. In males the left testis descends. In
females the vulva is open. Nails are present near the fingertips. Umblicus is midway between
the symphysis pubis and the ziphisternum. Meconium is present upto the pelvic colon. Foetus
is 18 inch long.

9. Ninth month: Size is greater than 18 inch. Ossification centre appears in the lower end of
femur. Scalp shows small heir ½ inch long. Subcutaneous pad of fat is present below the
skin. There is no wrinkling of foetal skin. The foetus is like a well-developed child.

10. At the tenth month: Meconium fills upto the anal canal. Nails project beyond the fingers.
Ossification centers appears in the upper end of Tibia humerus and the cubiod bone.

Medico-legal importance of age: Crimes, which come u/ss 82 & 83 of Pakistan Penal Code, are
subject of crime in addition to other offences. Medical man is called upon to give opinion on age
in the following cases:

1. Identity: Identity or identification is the determination or establishment of the

individuality or a person. The necessity for the identification of individuals is a matter of
every day occurrence. It may be necessary in a living person and dead person.

2. Criminal responsibility: A child under 7 years is presumed by law to be incapable of

committing an offence and is therefore exempt from punishment except u/s 140 of Railway
Act (wrecking or attempt to wreck a railway train).

A child above 7 years and below 12 years is presumed to be capable of committing an

offence if he has attained “sufficient maturity of understanding to Judge of the nature and
 consequences of his conduct on that occasions”. Law presumes this maturity of
understanding, unless contrary is proved by defence.

A child under 12 years cannot give a valid consent, say for a Surgical operation – for his
written consent should be taken from the parent or guardian.

3. Marriage contract: A boy or a girl, who has not attained puberty, is not competent to
enter into a contract for marriage but he or she may be contracted in marriage by his or her
guardian. In the absence of evidence to the contrary a Muslim girl is presumed to have
attained puberty at the age of fifteen (raised to sixteen by Family Laws Ordinance). Age of
boy must be 18 years for contract of marriage for arranged marriage.

A boy below 21 years of age and girl below 18 years of age cannot have a marriage by civil
rights.

4. Kidnapping: Offence of kidnapping consists in taking any minor under 16 years of age if
a male or under 18 years of age if a female out of the keeping of his or her lawful guardian,
without the order that such person may be murdered or subjected to grievous hurt or
slavery is punishable with enhanced punishment.

To constitute an offence of procuring a girl for purposes of prostitution, illicit intercourse

her age should be less than 18 years.

5. Abduction: If a person compels another by force or induces by deceitful means to go from

one place to another, he would be guilty of abduction. Under our law abduction is not an
offence by itself, it must be done with one of the intentions set out in Ss. 364 to 366 of the
Pakistan Penal Code the intention being that the person abducted may be either murdered
or be secretly and wrongfully confined or when the person abducted is a woman shall be
compelled to marry against her will or may be forced to illicit intercourse. Age of boy
should be under 16, of girl, under 18. To import a girl from a foreign country, for
prostitution her age should be below 21 years.

6. Rape: Rape is sexual intercourse with a woman without her consent or against her will.
Under our law a woman less than 16 years of age can never be a consenting party. The
word “woman” denotes a female human being of any age if the wife is under 15 years of
age and is not a consenting party, the husband may be guilty of rape on his wife.

7. Attainment of majority: A person becomes major when he completes 18 years of age.

This period of 18 years gets extended to 21 years if his property has been under the
superintendence of a Court of Wards or if a Court of justice has appointed a guardian. At
this age he gets all the civil rights of a citizen and can sell or buy property but he gets the
right to vote only at 21 years but present government has reduced the age of voter from 21
to 18 years.

A minor is incapable of selling his property or making a valid Will or serving on jury.

8. Competency as a witness: Under our law every person is competent to testify unless he is
prevented by immature understanding or defective intellect from comprehending the
 question put to him and is incapable of giving rational answers. Intellectual capacity is the
only test and if a person can give a rational account of what he has seen or heard or done at
a particular moment his competency is established. The only grounds of incompetence that
the law recognizes are those that arise from defect in intellect on the part of the witness,
viz. that arises from infancy, lunacy, drunkenness, etc. If due to old age, illness, emotional
stress, etc., he is notable to understand the questions put to him he is not allowed to give
evidence.

9. Eligibility for employment: For government service ordinary limit is 25 years. For
Pakistan Health Service age is 35 years. Factory Act prescribes 18 years.

No child is allowed to work in factory, if he is below 14 years, and no person below 17

years is allowed to work in a mine.

Adolescents (young, immature) are those who are between 15 to 18 years and children are
those who are below 15 years.

Standing for election to National or a Provincial Assembly is not less than 25 years.

10. Judicial Punishments: The punishments to which offenders are liable under the penal
code are, death, transportation, imprisonment which is either rigorous, that is with hard
labour, or simple, forfeiture of property, and fine. At the time when penal code was
enacted, sentence of transportation meant transportation beyond the seas. But since the
abolition of the penal colony (Andaman Islands), a prisoner sentenced to transportation is
kept in one of the jails in Pakistan where he is dealt within the same manner as a prisoner
sentenced to rigorous imprisonment.

A person who commits a crime but is below the age of sixteen is termed as a “juvenile
offender” and death sentence is usually not ordered to such persons. Such persons are tried
by the juvenile courts and are sent to reformatory jails till they attain the age of eighteen.
After that they can be transferred to regular jails.

A youthful offender may also be committed to the care of his parents who would have to
fill a bond that they would be responsible for his well-being and good behaviour for at least
a period of three years.

There is no provision of law that sentence of death shall be passed on a person of or above
16, but not more than 18 years of age, though it is very rarely that murderer under 18 is
sentenced to death.

11. Infanticide (killing of mature baby before birth): The charge of infanticide fails if it is
proved that foetus was below 6 months of pregnancy, as an infant born at this period is not
capable of a separate existence after birth. Where infant became mature and thereafter he is
killed before birth comes under infanticide.

12. Criminal abortion: It is necessary to find age of foetus and mother to find whether mother
has passed the child bearing age or otherwise.
 If the abortion is made before six months of pregnancy then it shall not be criminal charge.

How the medical certificate is made: Following are the requisites of medical certificate:

1. Written application: Person desirous to have Medical Certificate to know the age must
submit written application duly signed.

2. Reasoning: Application must include the purpose for which Medical Certificate is required
indicating age.

3. Consents of individual: If the person under examination is below 12 years, his guardian
shall give consents for the determination of age. If person under examination is above 12
years, he himself may give consents.

4. Presence of female attendant: Where female is under examination by a male doctor, a

female attendant other than relative must be present. This is protection, which is provided to
avoid any expected outrage by male doctor.

5. Undressing method: Male doctor cannot undress female for examination. Only she herself
or female doctor or nurse may undress her.

6. Presence of police: Policeman or Policewoman may present during examination

accordingly, but relatives are not allowed to be present.

How the medical report is written: Following are the contents of the Medical Report:

1. Name of the person examined: Report includes the name of the person who is examined.

2. Father or husband’s name: Report also includes the name of father or husband of the
person examined.

3. Age stated by person under examination: A person when applies for age determination
states his age which he knows or believes. It must be made part of medical report.

4. Address of person: Person under examination where resides must be mentioned in

medical report.

5. Date and time of examination: Date and time of examination is important and are used
later to prove or disprove of the findings of the examiner.

6. Menstrual or onset of menstrual history in case of female: Where female is under

examination, her state of manses also be mentioned in medical report.

7. Findings: Doctor mentions the findings, which he has found during examination.

8. Opinion on the basis of findings: Mere mentioning of findings is insufficient. Doctor has
to set his opinion on the base of findings in report.
9. Complexion and features: Colour and features of body are important in determination of
age and must be included in report.

10. Hair and its distribution: Hair resists putrefaction and is hence important in
identification. Africans have cotton wool like hair, whereas Pakistanis have dark and fine
hair.

11. Anthropometry: It is measurement of the human body and its proportions. This consists
in taking the measurements of various parts of the body and from them to identify the
person. This system is used in identifying criminals.

12. Finger and footprints: The finger, thumb, and footprints of two individuals are not
identical. This fact is helpful in identifying criminals. The foot and fingerprints appear at
the 4th month of the intrauterine life and remain constant throughout life.

13. X-rays and ECG: Identification on the basis of X-rays can help when there is a known
abnormality in a person, e.g., dextrocardia (condition in which the heart is on the right side
of the body). This can be differentiating feature from a person of similar identification.

14. Amount of illumination required for identification: The amount of illumination present
affects the identification of a person. A stranger cannot be recognized in less light. A flash
of light may be enough for identifying a person as well as daylight. It is possible to identify
a person in the flash of a firearm. In moonlight with a full moon a person can be identified
if he is within 17 yards distance or even more in cases of very familiar people. In the light
of a lantern one can identify a person only within two feet distance. In the light of lamppost
a person can be identified even at a distance of 50 – 100 yards.

Syncope (unconsciousness): It may have following causes:

1. Anaemia, due to sudden and excessive hemorrhage (lose blood) either external, or internal.

2. Asthenia (weakness) from the deficient power of the heart muscle, e.g., fatty degeneration,
aortic regurgitation, myocardial infarction, and certain poison, etc.

3. Shock by inhibiting the action of heart as sudden fright (horror, terror), blows on the head
or epigastrium (solar plexus), drinks, a large quantity of cold water when in a heated
condition, sudden evacuation (removal or discharge) of natural or pathological fluids from
body, etc. Sudden pressure on the carotid sinuses in the neck.

4. Symptoms of exhausting diseases: Face and lips pale (colorless, bleach, or white). Pupils
dilated (full, increase), cold perspiration (sweat, wetness), feeling of sinking, restlessness, air
hunger, noises in ears, gasping (struggle for breathing) respiration (breathing), nausea, and
may be vomiting. Low blood pressure pulse slow and weak in anemia and rapid in asthenia,
slight delirium (insanity, madness), insensibility and convulsions (upset) before death. In
collapse, the patient is conscious.
Postmortem appearances: Heart contracted and chambers empty, when death due to anemia.
Both chambers contain blood in death due to asthenia, lungs, brain, and abdominal organs are
usually pale.

Death: Shapiro has defined death as the irreversible loss of the properties of the living matter
and he made a definite distinction between the properties of the whole person and those of his
component parts. He holds when the properties of the whole person are irreversibly lost, the
person is legally dead and there can be no objection to the removal and preservation of the living
matter in his component (basic, fundamental) parts, as cornea, etc. How difficult it is to decide,
whether irreversible changes have occurred is shown by the account of the revival of a boy, who
had been under water for twenty minutes and suffered apparently irreversible changes and yet
survived with complete recovery.

Hanging: It is a condition where there is constriction (tightness, stricture, squeezing) of the neck
because of a ligature (connection, link, tie) around the neck, the constricting force being the
weight of the body or of head.

Judicial hanging: In cases where a long rope is used for hanging and the victim is suddenly
dropped from a height of 5 to 7 feet resulting in a fracture – dislocating of the cervical vertebra.
This compresses the medulla oblongata causing immediate stoppage of respiration. Usually the
second and third cervical vertebra re involved.

Kinds of Injuries

Mechanical Injuries Thermal Injuries Chemical Injuries Other Forms

Due to Due to Corrosive Corrosive

Bruises Abrasion Wound Electricity Radiation
Cold Heat Acids Alkalis

Wound

Incised Lacerated Stab Fire Arm

Due to Cold
 Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara
Pausa 24, 1931, at 07:12:05 PM

Course Contents:

1. The Qanun-e-Shahadat Order, 1984 (X of 1984) (Evidence Law) as amended upto date.

Books Recommended:

1. The Qanun-e-Shahadat by Professor Dr. Chaudhary Muhammad Hanif.

2. The Qanun-e-Shahadat by Muhammad Iqbal.

3. Qanun-e-Shahadat Order by Muhammad Shahid Mughal and Intisar Ali Chauhan.

4. Law of Evidence in Pakistan (old) by Mazhar Hasan Nizamy and A. G. Chaudhary.

There are two types of laws, i.e., substantive and procedural. Substantive law is related with the
person and property while procedural law deals with the procedure as to how substantive law is
proceeded in a court of law.

If a person does not fulfill legal obligation, how he can get remedy? How his rights are enforced?
For example, a contract is formed between two persons, and one of them commits breach of
contract. It is fact and alleged in court that it was not performed. He pleads a fact, which is
breach. What is the procedure by which breach is proved? How he establishes that fact stands
exist? It is only evidence, which proves the existence of fact.

Court itself takes notice of question of law. Parties are not required to resolve the question of law
but only question of fact. Parties have to just prove the existence of fact.

Before the present Qanun-e-Shahadat Order there was the Law of Evidence, 1872. It was
rearranged during the Islamization process in the Zia regime. It is more or less same as earlier.
Differences are as follows:

Under old law provisions of the law were called sections while in new one they are called
Article.

Provisions of law have been reshuffled.

Title of the law has been changed from the Law of Evidence, 1879 to Qanun-e-Shahadat Order,
1984.

Few Islamic provisions have been introduced, e.g., number of witnesses have been increased to
four for Hudood crimes.

Financial provisions have been brought Islamic.

Qualification of witnesses and law of accomplice has been changed.

If the new provisions do not fulfill the requirement of the case then old provisions remain
applicable. Finally it is more or less the same law, same ruling, same judgement, same decisions,
and same cases.

What is function of evidence law? To whom, as witness is to be produced in court to testify

truth? Witnesses are produced from both sides to prove or disprove the facts in issues. Whether
the produced witness is competent to give evidence in court of law and what are the
qualifications of competent witness are also questions of law of evidence. Witnesses also have
some rights and duties as well. Generally all are the competent witnesses provided they are not
debarred to give evidence except in certain cases. They have certain privileges and no question
can be asked from them against which they are protected under law. If any question is asked
which falls within their privilege they may refuse to answer the question. Rights are called
technically privileges. Generally witnesses are free to answer or refuse. During the cross-
examination they bear legal duty to answer question asked.

Whether evidence once given on one court can be adduced (cite, offer, present) in all courts? No,
it is accepted only where court or person administers it under oath. Arbitrator does not take
evidence under oath so evidence taken by him is not admissible in courts.

A, advances to B Rs. 5,000/- repayable within one month. B commits default in repayment. A
files a suit in court against B for the recovery of amount of Rs. 5,000/-. B either may admit the
receipt of amount and not repaid or may allege repaid within due time. A alleges advance of Rs.
5,000/- and B alleges its repayment. Two facts in issue arise. Advancement of Rs. 5,000/-
becomes issue in fact on the part of A while repayment of Rs. 5,000/- within due time becomes
fact in issue on the part of B. Both have to prove their claims by producing evidence.

If B claims receipt of advance amounting to Rs. 5,000/- which is still repayable then no fact in
issue will arise and case with be adjudged in favour of A. fact in issue arises when one party
denies the fact in issue which plaintiff puts. Both plaintiff and defendant put their facts in their
pleadings but court frames the facts in issue. Whenever defendant denies the fact which plaintiff
alleges, then fact in issue arises.

There may be more facts in issue than one. Relevant evidence is given to prove or disprove the
facts in issue. Denial of B can be proved through the Cheque issued to him while the receipt of
Money Order can prove repayment.

Kinds of evidences: There are certain kinds of evidence, e.g., oral and documentary, primary
and secondary etc. Primary evidence contains original documents or postmortem reports.
Secondary evidence contains copy or attested copy of the original document. Secondary
evidence is allowed where primary evidence is not available. Documentary evidence excludes
oral evidence being authentic and preferred. Following are kinds of evidences:

1. Oral: Statements made by witnesses in Court.

2. Documentary: It includes public and private documents, and statements of relevant facts
made by persons in writing.

3. Conclusive: Evidence of a fact which the Court must take as full proof of it, and which
excludes all evidence to disprove it.

4. Direct: It is evidence of fact actually in issue; evidence of a fact actually perceived by a

witness with his own senses.

5. Circumstantial: It is evidence of a fact not actually in issue, but legally relevant to a fact in
issue.

6. Real: It is a kind of evidence supplied by material objects produced for the inspection of the
Court.

7. Extrinsic: It is oral evidence given in connection with written documents.

8. Hearsay: What someone else has been heard to say, “What the solider said”, as contrasted
with the direct evidence of a witness himself, oral or written statements made by persons not
called as witnesses? Hearsay evidence is, in general, excluded, but the repetition or another
person’s statement is sometimes permissible, and there are express exceptions of the rule
against hearsay.

In criminal proceedings that common law rules as to hearsay still obtain. In civil proceedings
the common law rules are abrogated.

9. Indirect: It is circumstantial or hearsay evidence.

10. Original: It is evidence, which has an independent probative force of its own.

11. Derivative: It is evidence, which derives its force from some other source.

12. Parole: It is oral, extrinsic (unrelated) evidence.

13. Prima facie: It is evidence of fact, which the Court must take as proof of such fact, unless
disproved, by further evidence.

14. Primary: Primary evidence of a document is the document itself, or duplicate original.

15. Secondary: It is the evidence other than the best evidence, and which is rejected if primary
evidence is available, e.g., oral evidence of the contents of a lost document such as a Will.

Theft: Where property is removed from the custody of its owner with unlawful intention, it is
called theft. It has four ingredients such as:

1. Dishonest intention: Where property is removed without unlawful intention and later on
dishonest intention is formed, it not called theft but misappropriation. Dishonest intention
must be there at the time of removal of property.
2. Moveable or tangible property: Only moveable property is subject of theft. Where
immovable property is removed such as fan which is removed from wall or ceiling or tree is
removed from earth, it becomes moveable property thus its removal with dishonest intention
becomes subject of theft.

3. Removal of property: Mere dishonest intention is insufficient to constitute the offence of

theft. Its removal must be there. Where dishonest intention exists but property is not
removed, theft does not take place.

4. From the possession of other: Moveable property, which is removed with dishonest
intention, must have its owner. Where any person has abandoned his possession of any
property, its removal shall not form the offence of theft. Where owner of bull abandons the
ownership of bull, its slaughter shall not form the offence of theft. Ownership or physical
possession of property is one of element of theft.

Misappropriation of property: Misappropriation of property is a result of state of mind, which

is changed subsequently. All the elements of theft are found in misappropriation of property
except the dishonest intention at the time of removal of property. To constitute misappropriation
of property, its dishonest intention after the removal of property must be proved. It is breach of
trust. Breach of trust does mean a person is entrusted but later on he changes his mind and keeps
the property dishonestly for personal use is termed misappropriation.

Where a manager gives some amount to his clerk for disbursement to employees relying upon
him creates a trust to his subordinate. When clerk changes his mind after taking possession of
money for the keeping amount for his personal use without having any lawful authority, is
breach of trust for which he was entrusted.

Where a worker takes bicycle relating to another worker mistakenly but subsequently he keeps
such bicycle at home for his child and also takes his bicycle for his own use is also
misappropriation of property.

Law of theft is not applicable on misappropriation of property on the fact that dishonest intention
was not there when moveable property was removed from the possession relating to other.

Under the offence of theft owner of the property does not know whether property relating to him
is removed while he gives possession of his property himself to other person where
misappropriation of property may take place. Result of breach of trust form misappropriation of
property.

Mere removal of moveable of property from the possession relating to other is insufficient to
constitute either the offence of theft or misappropriation of property.

Judicial notice: Where something is not produced then court itself takes its notice. This notice is
called “Judicial Notice”. This notice is taken where there is no need to prove something, e.g.,
Map of Pakistan, question of law, administration, division of cities or districts or provinces etc.
Where a person is refrained to deny the truth already admitted is called estoppel. Where a
principal has not appointed agent but he ostensibly acts as agent before principal then principal
cannot deny the truth of his agency.

A is shopkeeper and B is his friend and joins him in his shop. C comes to shop and A introduces
B as owner of the shop. C deal with B. A dispute arises between shopkeeper and C. A cannot
deny the truth being B as owner of the shop. Burden or onus of proof (PÌJQ iBI) lies on the
shoulders who alleges (claims, ascertains). Burden or onus of proof shifts to him who fails to
prove the facts in issue.

In criminal cases prosecution has to prove the fact in issue because she takes in court case and
alleges the guilt of accused. In civil cases person who alleges has to prove it. Prosecution has to
prove the claim by evidence, which is beyond the reasonable doubt. In civil matters suit is
adjudged with principle of preponderance (majority, supremacy, dominance).

Witness who testifies the facts in issue is examined and his evidence does not rest accepted
without preponderance. Court does not rely on evidence without cross-examination. Leading
questions (pursuance during the proceeding) are not permissible. Court also examines the
credibility of witness. Arguments and cross-examinations are the tools to crystallize its truth.
Sometimes witness is called again to testify the truth if the document misplaces.

Application of this law: This Act is applicable to whole of Pakistan on all judicial proceedings.
Where evidence is required this law applies. This law is applicable for such forums:

1. Courts: Courts are subjects of the application of this law.

2. Persons empowered: Person who is empowered by law for the judicial proceedings is
subject of this law.

3. Tribunals: Tribunals for the judicial proceedings record their evidences under this law.

4. Quasi-judicial proceedings: It is also applicable in all quasi-judicial proceedings.

5. Magistrates: They are also subject of this law and record evidence under this law.

6. Martial Law Courts: They are also bound to record evidence under this law.

Non-application of this rule: This law does not apply on certain proceedings such as:

1. Jury system: Where jury system of justice exists there is no application of this law of
evidence.

2. Arbitration: It is also not applicable in arbitration cases.

3. Inquiries: If the inquiry is not judicial then it is not applicable.

Court: As far as evidence law is concerned court means any person, tribunal, or authority, which
exercises powers, invested to her as per law of land.
Document: U/s 29 of Pakistan Penal Code, document is a material written or described on any
substance and carries some meaning and can be produced as evidence in court. All written
materials regardless written on cloth, paper, stone, leather, tree, bones etc. is document if it
carries some meaning within the meaning of this section. It may be ABC or 123 or ?-@$/=, but it
should must carry meaning. Bloodstains on cloth are also a document. Black board, affidavit,
engraved name on tree, glass, plastic, iron, brick is document. Engraved engine number on motor
cycle or pistol is document. Wound mark on body is also a document, but an expert should
medically examine it and his report will termed as document.

Need of evidence: Court has to arrive on truth. Court does not know the actual and factual
position of the facts in issue. How a court may arrive to truth? It is only evidence, which brings
court to truth. Only evidence concludes such statement, which is given orally and admissible.

Role of police in judicial proceedings: Statement given before Police Officer, does not amount
evidence admissible in court. It is just investigation and proceedings which court conduct is
called enquiry. Police just collects evidences but does not record evidence.

Confession: Confession made before Police Officer is not admissible actually and particularly
when names of other persons are mentioned. Police may investigate against them but this
confession cannot be used against them as evidence. Confession is used only against him who
makes it but not against others.

The test of the judicial authority is that officer empowered takes evidence on oath. Executive
officer may also use quasi-judicial powers. Statement is not termed as evidence as it is not taken
under the Qanun-e-Shahdat Order. Both Code of Civil Procedure and Code of Criminal
Procedure are different but the evidence has same relevance.

There may be certain facts of issues in pleadings. Some of them may be admitted and rest may
be denied. Need of evidence becomes necessary where facts are denied. Plaintiff has to provide
evidence to establish his claim in pleading. Stay does not need evidence but arguments.

Where wrong or crime is committed, e.g., dacoity, murder, theft, or alcohol consumption etc.
there is need of evidence to prove or disprove the fact in issue. Some offences or wrongs are
petty in nature thus liable of bail. Bail is granted at once. Where there is non bail-able offence
and court thinks that accused shall run away, then court shall not grant bail.

Need of evidence: Evidence in both Code of Civil Procedure and Code of Criminal Procedure is
required at the time of trial. It is not allowed at appellate level. For example, a case of murder is
tried in Session Court and court gives death penalty to offender. Appellate court does not require
evidence. Evidence provided at trial level rests sufficient. Accused goes in appeal in High Court
and his lawyer establishes that a new piece of evidence has been discovered which if applied in
trial court, accused must be acquitted. If there is probability of reversal or acquittal lies in
evidence then Appellate Court decides the return back the case to trial court for retrial.

Fact: We know that all evidences are adduced before court of law either relating to fact in issue
or relevant to fact. A person may be habitual of sleepwalking. He may inflict slap to other during
sleepwalking. Trespassing is also an offence in the eyes of law. Trespasser may think that he is
entering in his home but actually it is not his home. This is state of mind. Offender makes his
mind to commit crime. Negligent person may also commit offence. Anything existence or non-
existence of which can be perceived is fact. State of mind is also fact, which can be perceived
and proved. Probable consequence of stoning is grievous hurt or injury however its knowledge
constitutes fact.

In another example, A, kills to B. Prosecution has to prove murder of B. It requires evidence thus
it is fact. Fact may either require its proof and disproof. When the evidence is adduced in court
and court considers it is proved that is fact.

Presumption of fact: Some time court presumes whether certain thing or fact exists or not. It
must be kept in mind that presumptions are always rebut-able. If party proves that fact does not
exist, court shall conclude that fact does not exist.

Competency of witness: There are certain qualifications for the competency of the witness. Law
imposes the following restriction on competent witness:

1. Age limit: Law does not provide any age limit for the competency of witness but he should
know and retain in his memory the facts.

2. Understanding capability: Competent witness must understand what court of law wants to
enquire. He must have capability to answer the questions of court.

3. To whom court thinks competent: Satisfaction of the court is another essential element for
the competency of witness. If court does not consider witness as competent he cannot appear
as competent witness even witness is person of sound mind or generally considered
competent.

4. True Muslim: In certain cases only true Muslim is competent witness particularly in
Hudood crimes. He must be person of those qualifications which Quran and Sunnah
prescribe for a witness.

5. Islamic rules: s

6. All persons: s

7. Tazkia: s

8. Eyesight: s

9. Hearing: s

10. Perception: s

11. Smelling: s

12. Communication skill: s

13. Honesty: s

14. Male (only in hudood cases: s

Incompetent witness: Law has debarred some persons to appear as competent witness. Detail of
those is as follows:

1. Incapacity of rational response: Person who is incapable to understand the question put to
him or who cannot give rational answers of court is not competent witness.

2. Young age factor: Although no age limit is prescribed for the competency of witness but it
does not mean that person of every age can appear as competent witness. Person who due to
young age factor cannot understand the requirement of evidence is not considered competent
witness.

3. Old age factor: Old age does not matter but it matters a lot. Person who due to old age
factor could not understand the rationality of the questions and answers put to him in court is
not competent witness.

4. Bodily infirmity: Person who is bodily infirm is not competent witness.

5. Mental infirmity: Person of unsound mind is debarred to appear as competent witness, i.e.,
who was person of unsound mind at the time of occurrence of incident.

6. Conviction in false evidence: Person is not competent who has been convicted in false
evidence except where he has been repented and mended his ways.

7. Unable to understand: s

8. Lunacy: s

9. Slander: s

10. Where is interest: s

11. Habitual liar: s

12. Female in hudood: s

Determination of competency of witness: Where there is any doubt of competency of witness,

only court shall determine his competency by putting questions to him. His response shall
explore his competency.

Exceptions: Law has prescribed certain exceptions for the competency of the witness such as:

1. Ordinary witness: Where person of the qualifications prescribed in Quran and Sunnah is
not available, the court may take the evidence of the person who is available to testify the
fact in issues.
2. Repented person: Person who had been debarred to appear as witness due to his
disqualification by way of false evidence or any other major sins, can be considered as
competent witness if court thinks that he has mended his ways and repented.

3. Lunacy while testifying: A person who was person of sound mind at the time of occurrence
of the incident is not incompetent witness if he loses his memory or becomes person of
unsound mind while he testify the truth before court. Court shall give him reasonable time for
recovery so that he may testify truth before court. Time relaxation is provided to reach at
truth and conclusion.

4. Child witness: Child is competent witness provided court thinks him competent by
testifying as to his ability to give evidence. Set question cannot be asked to determine his
ability to give evidence.

Judges and Magistrates: Judges and Magistrates are not bound by law to give answers of the
questions such as:

1. Conduct of the Judges or Magistrates in court.

2. Any matters which come to their knowledge during proceedings.

Exception: Law provides an exception to this rule as to their privilege, that superior court may
order Judge or Magistrate to answer the question relevant to the case which was under his trial.
Upon the order of superior court, Judges or Magistrates must have to depose (giving statement)
such improper evidence, which they had admitted. Their evidence is upto the extent of the case
they tried. Their evidence is confined and not opened to other matters, which are irrelevant. This
exception is allowed only in the case where court could not adjudge due to complex situation.

Immunity or privilege: It is granted to certain persons so that requirement of justice can be

fulfilled. It helps in arrival to truth. Where person is reluctant to provide evidence due to reason
that he shall be convicted or truth shall be brought, immunity is granted to him. Person who has
immunity cannot be convicted upon truth he provides in evidence.

Immunity also prevents the possibility of the false evidence because person, having privilege
always produces truth because he cannot be trapped on the truth he produces. S. 182 of Pakistan
Penal Code provides it punishable.

Immunity of married persons: Under this law a married person shall not be:

1. Compelled to disclose any communication made to him during marriage by any person to
whom he is married.

2. Permitted to disclose any such communication, except:

(1) When the person who made it or his representative-in-interest consents, or

(2) In suits between married person, or

 (3) In proceedings in which one married person is prosecuted for any crime committed
against the other one.

It is notable thing that privilege remains exist even after divorce takes place. Person making
evidence may waive off privilege at any time after divorce. Privileges are provided either on the
ground of natural love and affection or to evade from false evidence thus no prosecution or
litigation may take place on the ground of facts revealed from the evidence, which is privileged.
Information disclosed before marriage does not provide privilege on subsequent marriage. The
only test is the information is disclosed during the subsistence of marriage. Once a privilege is
always a privilege. It can be waived off but it cannot be ceased to exist (abandoned or discarded
or discontinued or ceased). It is not available for the matters before the marriage but it remains
available after the divorce has taken place. During the marriage if spouse appears as witness for
the offence committed against third person, cannot produce evidence until second spouse
consents. But if both spouses are parties against each other, then consent for evidence goes
immaterial.

Immunity on state matters: Matters of state may or may not be disclosed. Matters which are
declared confidential or against public policy are not disclosed if come into knowledge. If they
are required to be disclosed, then permission of the departmental head is required to do so, which
may or may not be granted. Nuclear programme is such example. Person who knows the
unpublished matters may refuse to disclose in evidence on the grounds of either against public
policy or sensitive matter. Head of the department may grant permission for evidence if there is
no apprehension of violation of public policy.

Information as to commission of offences: Law enforcing agencies have certain informers who
help in elimination of crimes. They inform police whenever offence is committed. Police or
Magistrate has immunity to disclose as to whence (from where) they got information. They may
waive off their immunity provided public interest does not suffer. But waiver off immunity may
cause problem to informer. Informer would not inform police about the crimes committed.

As police gets information from informer, collects independent evidences as to prove crime
committed. Evidences acquired are used against accused. Question cannot be asked to police as
to how and from where information was received. Police has interest in the information of the
commission of crime. Mere information is not sufficient for the conviction of accused.
Information is mere opening of the trial. Conviction or punishment depends upon evidences
which prosecutor collects during enquiry and presents them in court. Normally informers are not
disclosed as sources of information but they can be called as witnesses where immunity is
waived off. Waiver of immunity does not need the consents of the informer. This is privilege of
police and not of informer. Discovery of offence weapon or stolen property, postmortem report,
signs of foots, evidences, and identification parades are sufficient grounds to convict the
offender. Mere information is nothing.

A Magistrate or Police Officer cannot be compelled to disclose the source of information

received by him as to the commission of an offence. It is of importance to the public for the
detection of crimes that those persons who are the channel by means of which the detection is
made should not be unnecessarily disclosed.
Professional communication: Professionals are not allowed to disclose any material received
during the course of their business from their clients. Advocates proceed the cases based on
information received from their respective clients. They cannot disclose such information unless
they get express consents of their clients (ÆÝ·Ì׿). While deciding whether it should be
disclosed or not, relationship between them remains determinant factor. If communication is
made before going into contract or after gone into contract, immunity will not be available.
Immunity rests only for the period of relationship. Furtherance of commission of crimes cannot
enjoy immunity even made while relationship with lawyer.

If offender says his lawyer that I have committed an offence and you have to defend me does not
constitute offence and immunity shall remain available.

Where client says to his advocate that he has to get property by means of forged documents and
you have to protect me is not covered or protected from disclosure.

Production of title deed of witness, not a party: A person who is not party in a case and has a
title deed, cannot be compelled to produce such title deed as evidence unless owner of the
property consents.

Person who may criminate by producing evidence shall not be tried on the statement he gives as
witness. He may be compelled to give evidence but his evidence, whatsoever is, cannot be used
against him as confession. This protection does not amount privilege, but it is mere protection.
Under privilege person cannot be compelled to produce evidence but under protection he may be
compelled to produce evidence but his evidence shall remain evidence and not confession.

Person who has not privilege, if is compelled to give evidence and he refuses to give evidence is
supposed of guilty of false evidence and if he gives true statement then he may be charged. By
this way truth remains concealed. In order to find out the truth to reach on conclusion, law gives
protection to witness to ensure the justice.

Production of documents relating to other: Where a person holds documents relating to other
cannot be compelled to produce such documents as evidence unless its actual master consents.

Accomplice: He is a person who helps in an offence. He may not commit an offence physically
but by the reason of common intention either express or implied, he is held guilty of an offence
and he is liable to the same punishment for what principal offender is. He may assist the
principal offender before or after the commission of an offence.

Question arises that whether an accomplice is competent witness. As far as English law is
concerned, he is not only competent witness but conviction can be awarded on his evidence. He
alone is sufficient for conviction. Approver (an accomplice who turns King’s evidence) is also
accused thus competent witness.

Exception to this rule: Pakistani law provides an exception to this rule for the offences, which
come under Hudood crimes (ÁÖAjU eËfY). Hudood crimes are those, which are, declared
crimes in Quran expressly and their punishment has been fixed under Quran. They are not
compound-able. They are seven in number including theft, alcohol consumption, adultery,
dacoity, sedition, slander of woman (defamation), and apostasy. Accomplice is not competent
witness in Huddon crimes. Only Muslim adult male witnesses, about whom the Court is
satisfied, having regard to the requirement of tazkiyah al-shuhood (eÌÈr»A ÒηlM), that they are
truthful persons and abstain from major sins (Kabir – ÊjÎJ·), give evidence of the accused having
committed the offence liable to Hadd.

Evidentiary value: Piece of evidence determines the liability and punishment of an offender.
Witness is also taken into consideration. His education and character are also factors, which
evaluate weight and value of evidence. Approver betrays his companions in the dock and who
has no scruples either in exaggerating (overstate, larger than normal) their part in the crime or in
substituting in a well thought out narrative a completely innocent man for friend whom he is still
anxious to save. In evidence his self interest may involve. In order to save skin he may state
which is not committed. Corroboration (acknowledgement or affirmation) of his evidence from
an independent source may testify truth. But punishment mere on his evidence may lead to
injustice. Although Pakistani courts are not bound by law to corroborate his evidence but under
law corroboration is desirable. Accomplice is presumed unworthy unless rebutted. Article 129 of
Qanun-e-Shahadat Order, 1984, provides that court may presume the unworthiness of the
accomplice.

Number of witnesses: As a general rule, only one witness either male or female is sufficient for
conviction. But as far as Hudood crimes are concerned Quran and Sunnah determine the number
of witnesses.

In all other matters than of Hudood crimes, mere one witness is sufficient for conviction.

Financial and future obligations need two males or one male and two females witnesses for
conviction.

Relevancy of facts: There are two kinds of facts for which evidence is adduced in court, i.e.,
facts in issue and relevant facts. Facts in issue are those which are alleged by one party and
denied by the other on the pleadings, in a civil suit; or alleged in the charge and denied by the
plea of “not guilty” in a criminal case, so far as they are in either case material. On the other
hand, the relevant facts are all those facts which are in the eyes of law so connected with or
related to the fact in issue that they render the latter probable or improbable or roughly throw
light upon them.

A files suit against B for the recovery of Rs. 5,000/-. If B admits the borrowing of Rs. 5,000/-
then no fact in issue shall be framed thus no evidence shall have be adduced to prove the fact.
But if B refuses the fact of borrowing of Rs. 5,000/- then A shall be required to adduce evidence
to prove the lending of Rs. 5,000/-. Fact in issue is the matter undecided. Only evidence may
prove the truth of the facts. Any fact against which court needs evidence to prove it is called fact
in issue.

If B admits the borrowing of Rs. 5,000/- but alleges its repayment to A is again fact in issue thus
requires evidence to prove the fact of repayment, which A denies.
Some time relevant facts prove the truth of facts in issue. For instance, denial of B can be
proved through the Cheque issued to him while the receipt of Money Order can prove
repayment. In this way Qanun-e-Shahadat is applicable both on facts in issue and relevant fact to
testify truth.

How the relevancy is proved? Law provides list of relevant facts, which more or less covers all
the matters, which may occur.

Relevancy of facts forming part of same transaction: All the facts, which are so, connected
with the same transaction immediate or later, proximity or remote, or direct or indirect are
relevant facts thus they form single fact. For example, delivery of goods involves several
intermediaries who successfully deliver the goods. Each delivery constitutes relevant fact.

A good example of what different acts constitute one and the same transaction, is afforded by a
case where the prisoner in order to remove a cart of which he committed theft, broke into the
cattle-shed of a neighbour of the cart owner, took out the bulls and drove off the cart to a distant
place. It was held that the house breaking into the neighbor’s shed was essential to the theft of
the cart and bulls of the owner, so that one could not be done without the other. And therefore,
the two acts, i.e., house breaking and removal of the cart and the bulls formed parts of the same
transactions.

In a house breaking, the person who cuts the glass of the door or window either on spot or before
or later, is relevant fact in the case of house breaking.

What is transaction: The term “transaction” has been defined as a group of facts so connected
together as to be referred to by a single legal name, as a crime, a contract, wrong, or any other
subject matter of inquiry which may be in issue.

Extra-judicial confession Article 37: The word “confession” has not been defined in anywhere
in law. A “confession” is an admission made at any time by a person charged with a crime,
stating, or suggesting the inference that he committed that crime. The value of extra-judicial
confession is not very high.

A confession must either admit in terms the offence or at any rate substantially all the facts,
which constitute the offence.

Extra-judicial confession is made before the private person, i.e., other than Magistrate or Police
Officer. Judicial confession is made before Magistrate having jurisdiction in the case.

Confession in jail before fellow prisoner is extra-judicial confession because it is not made
before Magistrate. Confession using threat, inducement, or promise is not reliable. Authority
before whom confession is made must be high such as landlord and tenant, officer and
subordinate, headman and cultivator etc. This is made to avoid any blackmailing or any other
evil cause. This confession is not only extra-judicial but also irrelevant and not liable to use
against accused.
Some time a person makes confession for temporal (secular, non-spiritual) purposes before
private person. It is not acceptable at all in law. There may be threat to his family, parents, and
children etc. It becomes relevant if it is made voluntarily.

Confession to police not to be proved Article 38: Police Officer is not authorized to take the
statement of confession. If any accused confesses before police officer, his confession shall not
be used against accused. It is not material whether accused was aware the person before he has
made confession is police officer. This confession cannot be used against accused.

Also under Article 39, confession made by accused before Police Officer while custody cannot
be proved against him unless it is made in the immediate presence of Magistrate. The presence of
Magistrate secures the free and voluntary of the confession and the confessing person has an
opportunity of making a statement uncontrolled by any fear of the police.

An English woman under arrest on a charge of murder was taken in a tonga, from the place
where alleged offence was committed, to the principal town of the district. A European friend
drove with her in the tonga and a mounted policeman rode in front. In the course of journey the
policeman left the tonga and went to a slowly along the road for some miles without any escort.
In the absence of the policeman, the accused made a communication to her friend with reference
to the alleged offence. At the trial it was proposed to ask what the accused had said, on the
ground that she was not then in custody, and that this Article did not apply. It was held that,
notwithstanding the temporary absence of the policeman, the accused was still in custody, and
the question could not be allowed while the accused was in lockup of the Magistrate under trial.
Magistrate sent him at hospital for treatment. Two policemen, who waited outside on the
verandah of the hospital, took him from the lockup to the dispensary. During his examination
inside the dispensary by the doctor, the accused made a confession of his guilt to another patient
who happened to be there within the hearing of the doctor. It was held that the confession was
inadmissible, because the accused, who was in police custody upto his arrival at the hospital,
remained in that custody even though the policemen were standing outside on the verandah.

Confession in consequences of discovery Article 40: If the confession of the accused is

supported by the discovery of a fact it may be presumed to be true and not to have been
extracted. It comes into operation only:

1. There must be a fact discovered.

2. The fact must have been discovered in consequence of some information received from the
accused.

3. The fact discovered must be relevant.

4. The person from whom information is received must not only be an accused but must also be
in the custody of the police.

5. The information sought to be used in evidence must distinctly relate to the fact discovered.
If upon the information of the accused, crime weapon is discovered while he is in police custody,
his confession is supposed to be true.

Where police already knows the happening of the crime, then the information provided by the
accused are not called confession.

S. 164 of Code of Criminal Procedure applies on this type of confession. It must be recorded
before Magistrate. Magistrate shall explain to person that he is not bound to confess and his
confession may go against him. His confession must be voluntary. Magistrate certifies the
confession as provided in this section and puts his signature.

Confession before Imam is admissible because he is public person and not a policeman thus
relevant to prove the guilt of accused. Confession before a policeman who acts as Imam is not
confession at all because law categorically prohibits it.

Philosophy of punishment: Punishment is not taken as revenge. It has philosophy behind it.
There are four major points, which supports it. They are as follows:

1. Crime must be punished, as it is evil as against public, which should not be left without
tracing.

2. It is deterrence (restriction, hindrance, control, limitation) to public as public remains away

in doing such things result of which is not desirable.

3. It is deterrence to offender himself, as he should not commit such offence again to prevent
himself from punishment.

4. Offender is put to jail as jail prevents offender himself and others to suffer from offences.

Confession after removal of danger Article 41: Where accused makes confession voluntarily
after the removal of impression caused by inducement, threat, or promise are relevant and used
in proceedings. Where confession is made in Panchayat (OÖB‡Ä‚), it is held inadmissible.

Relevant confession under certain circumstances Article 42: Where accused is not bound to
confess and confesses voluntarily is relevant. A relevant confession does not become irrelevant
because it was made:

1. Under a promise of secrecy.

2. In consequence of a deception practiced on the accused.

3. When the accused was drunk.

4. In answer to questions which the accused need not have answered.

5. In consequence of the accused not receiving a warning that he was not bound to make it and
that it might be used against him.
6. After removal of inducement.

7. After removal of threat.

8. Before lower rank.

9. Before private person.

10. Before Police Officer where is recovery.

11. After withdrawal of promise.

Statements made by a person in sleep are not receivable in evidence. But a statement made by an
accused when he is drunk is receivable in evidence. If a Police Officer gives an accused liqueur
in the hope of his saying something and he makes any statement, that statement is not rendered
inadmissible in evidence. In consequences of question and answering, statement of accused is
considered true. Where accused is not bound to confess, his confession renders him liable against
his guilt. It is notable that above provisions are not applicable in the cases of Hudood.

Consequences of confession are only for confessor Article 43: Where more than one persons
commit a crime and one of them makes confession in a trial, it shall be considered only against
the person who makes confession.

Joinders of the same crime are not subject of the confession, which is made from one of them.
However such confession is used as circumstantial evidence against the rest of offenders.

Illustrations: A and B are jointly tried for the murder of C. It is proved that A said: “B and I
murdered C”. The court may consider the effect of this confession as against B.

A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B,
and that B said: “A and I murdered C”.

This statement may not be taken into consideration by the court against A, as B is not being
jointly tried.

In these circumstances, confession of one accused and circumstantial evidence must be

corroborated against the joinder of the crime.

Applicability: Before a statement by one of the accused persons can be taken into consideration
against the other accused, following conditions must be satisfied:

1. The statement that is sought to be used, against the co-accused must be a statement that
amounts to a confession.

2. The confessing accused must be tried jointly with the accused against whom the confession
is sought to be used.
3. The confessing accused and the accused against whom the confession is sought to be used
must be tried for the same offence, or for attempt, or abetment thereof.

4. The confession must implicate the maker substantially to the same extent as it implicates the
accused against whom it is to be used.

5. The confession must be duly proved.

Liability of cross-examination Article 44: All accuseds are liable to cross-examination.

According to the Constitution of the Islamic Republic of Pakistan “no person when accused of an
offence, shall be compelled to be a witness against himself.”

Admission is not proof Article 45: Unless admission constitutes an estoppel, it is not
conclusive and it is always open to its maker to show that the statements were mistaken or
untrue.

Oral evidence Article 70: Facts can be proved by oral evidence where contents of documents
are not available. But it should be direct oral evidence. It means that person who is eyewitness
must appear in court to testify the truth of the facts. Since he has seen the facts on spot in his
presence therefore his presence in court strengthens the weight of evidence. Hearsay evidence is
not direct evidence. Law demands that there must be best direct evidence. Document is preferred
on oral evidence. Where written matter is in question, document is the only thing, which can
prove the truth of the dispute. Primary evidence is preferred on secondary evidence.

Secondary evidence is certified copy of public record. It is a document, which rests in the
custody of government officer. He certifies its copy as correct as original. It bears signature,
name, designation, and seal of the attesting officer. Photocopy from the original document is
admissible. Copy from copy is not acceptable. Counterpart of original document is desirable as
secondary evidence. Counterpart is the similar document prepared and signed by each party
separately. Each document contains only one signature.

Secondary evidence is given where court permits it. Party itself cannot decide whether primary
or secondary evidence is to be produced. It is only court, which decides the matter on merit. It is
allowed in the cases where circumstances allow. Destruction of documents by way of theft,
flood, earthquake, fire etc. may advance the need of secondary evidence. Where court satisfies,
secondary evidence is permitted. It should be taken into consideration that intentional or
fabricated or artificial destruction of document is not acceptable as good ground to advance oral
evidence.

Direct oral evidence Article 71: Oral evidence must be direct as seen, heard, perceived, or held
that opinion on such grounds.

Secondary evidence is permitted where documentary evidence is lost or not available due to
reasons uncertain. Permission of oral evidence requires sufficient proof of having no
documentary proof. Only court permits oral evidence. Where once permission for oral evidence
is granted, it excludes the chances to produce documentary evidence later on in any
circumstances. Documentary evidence shall be kept in pocket. Court may say that you were
given the opportunity to testify the truth by documentary evidence, but you failed to do so,
therefore, now your right to produce document shall be subject of the permission of court or the
adverse party. It is, in general, not granted. Where documentary evidence is available, it excludes
oral evidence.

Law says categorically that oral evidence must be direct, that is, if it refers to:

1. Seen fact: A fact, which could be seen, the evidence must be of a witness who says he saw
it. His evidence on the seen facts has more weight-age than of who has not seen the fact
himself. He also knows well about the circumstances in which incident takes place. He is the
direct source of evidence. Keeping in view of his importance, court considers his evidence
first before going into other sources.

2. Heard fact: A fact which could be heard, the evidence must be of a witness who says he has
heard it. Where in a case of bribe, during the handing over amount, the actual talk between
the person giving and taking bribe is the determinant factor. Mere observation of bribe is
insufficient to constitute the offence.

3. Perceived fact: A fact, which could be perceived, by any sense or manner, the evidence
must be of a witness who says that he has perceived it by that sense or that manner. Where
death is caused by gas, evidence of the person who actually smells the gas is relevant.

4. Factual opinion: An opinion, or the grounds on which that opinion is formed, the evidence
must be of a person who holds that opinion on those grounds. In the case of forgery, the
opinion of expert who can distinguish or compare handwriting or fingerprints is relevant.
Since he is expert therefore his report is best evidence.

Exception: Although in case of oral evidence it must be direct but there are some exceptions to
this rule which are as follows:

Shahadah-ala-Shahadah (ÑeBér»A Ó¼§ ÑeBéq): Where person has been died or left the
country or wants to conceal himself due to security reasons and possibility of his appearance
lacks, a party desirous to produce evidence has a right to produce Shahadah-ala-Shahadah
(ÑeBér»A Ó¼§ ÑeBéq). Where a witness is under fear that he shall be killed in combat (police
contest) can also produce this type of evidence. Under this type of evidence witness appoints two
witnesses who depose on his behalf. It should be kept in mind that clash in oral evidence
extinguishes its truth-ness.

Evidence can be transferred to two persons where life of innocent person depends upon evidence
of the person who wants to conceal himself and refrains to appear before court due to reasons
certain. Two persons are the requirement of law as their evidence can be tested against each
other while evidence of one person cannot be tested. So to conclude the case in the absence of
actual witness, evidence of two persons becomes necessary.

How oral evidence is got recorded: There are three main methods whereby oral evidence can
be got recorded, such as:
1. Spoken or oral recording: Where witness is educated and able to convey his evidence,
having well five senses, i.e., has good sight, hearing, and perception power, must get record
his evidence personally by way of oral evidence.

2. Written recording: Where witness has all requisite qualities except the power of speaking,
i.e., he is dumb (mute, tongue-tied, silent, speechless), but he may write, he may give
evidence by way of writing.

3. In “yes” or “no” form: Where witness is deaf (lacking sense of hearing, hearing impaired,
without hearing, unable to hear) and dumb, he can answer of questions of examiner in chief
or cross examiner in term of “yes” or “no” by body gesture (use of sign language, head
motion).

Preference of ocular evidence: Ocular evidence is preferred on hearsay evidence on the

grounds of test of eyewitness. Where document has been lost due to any reason uncertain,
evidence of eyewitness can testify its truth even the person testifying was not signatory on
document.

Test of evidence: Court may apply three tests to come to conclusion whether the evidence given
is true. Hearsay evidence is liable to test. Following are the three tests:

1. Oath: In first place, court takes oath from the witness. It is understood that the person giving
evidence under oath is true. But if, later on, it is revealed that the evidence given under oath
was false, the same punishment shall be imposed to the person who gave false evidence.
Punishment on false evidence is not forgiven. False evidence is not tolerated. Particularly
when death penalty is imposed on false evidence, the person upon whose false evidence,
innocent person is hanged is also punished with death penalty. In other cases imprisonment
upto ten years can be given.

2. Cross-examination: In second instance, test which court applies is cross-examination. If

cross-examiner puts right questions to witnesses, it can infer the reality. True and untrue can
be separated. False and truth can be discovered. Reality can be exposed. Good cross-
examination can bring to light the actual reality.

3. Demeanor (face reading): Finally court may examine the face expression during the
evidence. Court shall look into face and eye expression. Expressions never speak lie. Eyes
and face always speak truth. Variance in reality and statement appears on face, which
testifies the actual position of statement.

Exception: Evidence under Shahadah-ala-Shahadah (ÑeBér»A Ó¼§ ÑeBéq) is not applicable

in Hudood cases.

Cases in which statement of relevant fact by person who is died or cannot be found Article
46: Some time person dies and dying makes person incapable to appear in court to give
evidence. There may be some other reasons for such disappearance like that the person has left
the country or he cannot be found or he is under fear of death, or other reasons whatsoever
relevant are. His statement can be admitted in lieu of his personal appearance.
There are some exceptions to the Hearsay rule of the evidence. Secondary evidence of any oral
statement is called hearsay evidence. The repetition by a witness of that which he was told by
someone else, who is not called as a witness is hearsay, and is therefore, as a general rule,
inadmissible. The reasons for this rule are obvious. We can generally trust a witness who states
something, which he himself has either seen or heard; but when he tells us something, which he
has heard from another person, his statement is obviously less reliable thus unsatisfactory.

A multitude (gathering, collection) of probable contingencies diminishes its value. The witness
may have misunderstood or imperfectly remembered, or even may be willfully misrepresenting
the words of a third person; or the later may have spoken hastily, inaccurately, or even falsely.
Moreover, the person who is really responsible for the statement did not make it on oath; he was
not cross-examined upon it, and the court had no opportunity of observing his demeanor when he
made it. It is fundamental principle of our law that evidence has no claim to credibility, unless it
is given on oath, or what is equivalent to an oath, and unless the party to be affected by it has an
opportunity of cross-examining the witness.

Following are the cases in which statement in lieu of evidence is admissible:

1. When it relates to cause of death: Where a person is dying and cannot appear in court for
evidence in offence committed against his body is not required to attend court. Recording of
his statement in the presence of two witnesses is sufficient to prove offence committed. Only
Police Officer having jurisdiction over subject matter is competent to record such dying
declaration. Person dying knows well about the murderer or guilty person. He also knows the
reasons of such injury. His statement should be in written form. If he is incapable to write
statement, then competent Police Officer writes the statement in the presence of two
witnesses. It may contain different questions and their answers.

This evidence is admissible only in case where person injured has been died after getting
record of his statement. If he is alive, he must be produced in court for evidence. In another
case, this statement must be in writing.

Value of the evidence: Evidence given in such a manner has the same value as evidence
given in the ordinary manner. Death penalty may be given upon this evidence. It is as good
as evidence, as ocular evidence is. Court keeps in view of the smell truth in the evidence.

Case: In an English case an English lady received grievous injury and was near to death. She
was not in such a position to tell her story. Policeman said her to move her head in “yes” or
“no” position when he will ask questions from her. She replied all his questions, which he
recorded. Death penalty was given on this evidence.

Case: In another case witnesses told the story of the person killed. They said that bullet was
fired within 10 to 12 feet distance. After getting injury, victim turned back and saw his
enemy with gun and then recognized the guilty person who had fired over him. This evidence
was not admitted on the ground that it is not possible for an injured person to turn back for
the recognition of murderer within such distance against the injury caused by such high
velocity gun.
 Case: In another case an injured person was taken into hospital and was kept in lawn for a
longer time. His statement was recorded quite after his arrival in hospital. Evidence was not
accepted on the grounds of suspect that doctors might have tried to fabricate the evidence.
Since the smell of truth was suspected therefore evidence not admitted.

2. Where statement is made during the course of business: Where person has made his diary
in the course of business and left the country or concealed himself due to any reason, his
recordings can be produced in court as evidence.

For instance, Captain of the vessel maintains the logbook in which he records day to day
transactions such as speed of ship, its direction on certain time, position in sea, distance from
seashore, accident etc. Where Captain is incapable to appear before court to give evidence
due to any reason, his maintained logbook shall serve the purpose to confirm the evidence.
This evidence is as much as valuable as the evidence given by the actual person required.

Doctors maintain report while making postmortem. They put all transactions in register. In
the absence of the doctor who has made the report, such record can be produced in court to
prove the facts in lieu of person who made it.

Entry of death in corporation’s record is also another instance. Nikah is entered in prescribed
form and it is got registered. Such registry is conlusive proof of Nikah.

3. Admission against the interest of maker: Where an evidence may cause injury to the
person giving it and his statement may contribute in the decision or where he may suffer
from the pecuniary loss, upon his behalf, his statement can be put forward to decide case.
Where a person admits the borrowing of Rs. 20,000/- in civil suit, it means he has admitted
the fact against his interest thus his statement serves as valid evidence. Court always
welcomes this sort of admission because it leaves nothing undone.

4. Where custom proves: Where in the dispute as to claim of ownership over pasture (grazing
land) could not be proved due to non-appearance of person, then custom of the locality can
prove such dispute. There are certain customary rights of person over pasture, fishing,
boating, well, road etc. The questions whether road is public or private, statement of the
person who knows the facts or village headman are relevant. Person making evidence
certifies in writing that the particular right was customary.

5. Existence of relationship – other person who knows: There are three types of
relationships, i.e., blood, marriage, and by adoption. Where the relationship is to prove and
there is not personal evidence, how such relationship shall be proved? In the absence of
principal witness, other people who know or have reasonable believe on the existence of
relationship may appear to give evidence. He may be of witness of solemnization of his
marriage or he may have attended his wedding anniversary or his son’s birthday ceremony.
Marriage certificate can prove existence of relationship. Any other person who has special
knowledge can submit his written statement.

6. Proof of Will: Where Will is written and got registered, shall be enough to prove the
existence of relationships. Personal appearance shall become immaterial. When court issues
the certified copy of Will, which is called Probate, proves the relationship. Special mean of
 knowledge of the facts of relationship proves the case. Pedigree tree is such a thing to prove
relationship. Family settlement, which is written, is also proof of Will. Tombstone
(memorial, headstone, or piece of stone fixed on grave (iAl¿ `Ì»)) can also be determinant
factor. Family portrait in which all relatives are shown is also proof. It should be noted that
this writing must be made before the dispute is arisen. Fabrication can be put into writing
when dispute arises, therefore, statement produced in court should be prior written.

7. Creation of rights: Where rights are created in favour of others like grazing rights or fishery
rights etc., deed in which such rights are created is conclusive proof of right. Where
document or deed is not available the circumstances such as sub lease may prove the creation
of right of certain person or persons.

The question is whether A has a right to a fishery. A deed conferring the fishery on A’s
ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s
father, irreconcilable with the mortgage, particular instances in which
A’s father exercised the right, or in which the exercise of the right was stopped by A’s
neighbors, are relevant facts.

8. Several eyewitnesses: Where a person makes a caricature and fifty persons watch it and
make protest considering it defamation are not required to appear before court to prove
incident. Mere presence of one person shall be considered sufficient to prove case. For
instance, A sues B for a libel expressed in a painted caricature exposed in a Station Housing
Officer window. The question is as to the similarity of the caricature and its libelous
character. The remarks of a crowd of spectators on these points may be proved.

Relevancy of certain evidence for proving in subsequent proceeding the truth of facts
therein stated Article 47: Where a person gives evidence in a judicial proceedings or before any
person authorized by law is relevant in later stage even if he conceals himself later on. Prior
evidence is admissible. This provision has some exceptions:

1. Similar proceedings: Proceedings should be same otherwise evidence shall not be relevant.

2. Same parties: Proceedings should be within same parties or their representatives. Where
parties are not same, such evidence becomes irrelevant.

3. Right and opportunity of cross-examination: Right of cross-examination was provided to

adverse party. They also had opportunity to cross-examine. Whether they availed or not the
opportunity is irrelevant, but mere the provision of right and opportunity is sufficient to
consider the evidence.

4. Similarity of the questions: Questions should be same in the first and subsequent
proceedings. Minor change is negligible. Substantial similarity is required.

Relevancy of certain judgement in probate, etc., jurisdiction Article 55: Where a judgement
in personam is pronounced, it is considered conclusive proof. For example, where dispute
between A and B is pronounced against B shall not affect to C who is not party to this case. This
Article consists on two parts. The first part makes the final judgement, order, or decree of a
competent court in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction
relevant, the second part makes the judgements conclusive proof in certain matters. But as far as
judgement in rem is concerned, it not considered conclusive proof generally. But there are some
exceptions to this rule such as:

1. Probate: Where court issues certified copy of Will, it effects the necessary and proper
parties of the case either they are present or not in court. Their consents become irrelevant.
Where court issues certified copy of Will, it can be produced as relevant fact in other cases.
The grant of probate is conclusive proof of the title of executors and of the genuineness of
the Will admitted to probate. The conclusiveness of the probate rests upon the declared Will
of the Legislature. The grant of probate is the method, which the law specially provides for
establishing a Will. Probate ceases the legal character of demised person. He is now no more
owner of the property in question.

2. Matrimonial: Where divorce takes place and judgement is pronounced it becomes

conclusive proof being the separation of the two persons. It is relevant for other party. A
judgement of a matrimonial court, decreeing divorce or nullity of marriage is binding as to
the status of the parties concerned. It is conclusive upon all person that the parties have been
divorced and that they are no longer being husband and wife. But a judgement in a suit for
restitution of conjugal rights is a purely private suit between two persons, and such a
judgement is not a judgement in rem within the meaning of this Article.

3. Admiralty: Where matter is related with merchant navy, it affects others. It is relevant for
other party. Admiralty jurisdiction is conferred on several High Courts by Letters Patent. It
ceases its legal character.

4. Insolvency: Where a person has been declared insolvent, he affects others who are solvent.
His insolvency becomes relevant for others. A previous judgement passed on a compromise
is a judgement in rem within the meaning of this Article and is therefore no bar to a
subsequent suit. Judgement is relevant and conclusive proof for other solvent associated
parties. Judgement declares the legal character of solvent into insolvent. He ceases to be a
solvent.

Conclusive proof: When final judgement is pronounced, it becomes conclusive proof in all
cases above noted. Once the case has been decided it is binding on all parties and relevant as
well. Ignorance or consent of others remains no relevant and important.

Relevancy of judgement in rem Article 56: Any judgement, which is in rem, is relevant for
other parties but it is not conclusive proof, which it includes. This judgement can be considered
but not as conclusive proof.

Under this Article judgements relating to matters of a public nature are declared relevant,
whether between the same parties or not. It also forms exception to the general rule that no one
shall be affected or prejudiced by judgement to which he is not a party or privy. The exception
just stated is allowed in favour of verdicts. Judgements, and other adjudication upon subject of a
public nature, such as customs, prescriptions, tolls, boundaries between parishes (district),
counties, or manors (large house), rights of ferry, liabilities to repair roads, or sea-walls,
moduses, and the like. In all cases of this nature, as evidence of reputation will be admissible,
adjudication, which for this purpose are regarded as a species of reputation, will also be received,
and this, too, whether the parties in the second suit be those who litigated the first, or be utter
strangers.

These exceptions are based on the principle that in matters of public right the new party to the
second proceeding, as one of the public, has been virtually a party to the former proceeding and
therefore, he is properly excused. For the application of this Article two conditions are necessary.
Firstly, that the judgement must relate to a matter of public nature and secondly, that it satisfies
the first requirement that it is not a judgement which is admissible under either of the last
preceding two Articles.

Example: A sues B for trespass on his land, B alleges the existence of a public right of way over
the land, which A denies.

The existence of a decree in favour of the defendant, in A suit by a against C for a trespass on the
same land, in which C alleged the existence of the same right of way, is relevant, but it is not
conclusive proof that the right of way exists.

Judgement other than in rem, public right, and previous Article 57: Where previous
judgement, judgement in rem, and judgement of public right itself comes under litigation as fact
in issue then they become relevant.

The cases contemplated by this Article are those where a judgement is used not as res judicata or
as evidence more or less binding upon opponent by reason of the adjudication which it contains,
because judgements of that kind had already been dealt with under one or other of the
immediately precedent Articles. But the cases referred to in this Article are such as the Article
itself illustrates viz., when the fact of any particular judgement having been given is a matter to
be proved in the case. As, for instance, if A sued B for slander, in saying that A had been
convicted of forgery, and B justifies upon the ground that they alleged slander was true, the
conviction of A for forgery would be a fact to be proved by B like any other fact in the case, quite
irrespective of whether A had been actually guilty of the forgery or not.

A judgement recovered against a surety will be evidence for him to prove the amount which he
has been compelled to pay for the principal debtor but it furnishes no proof whatever of his
having been legally liable to pay that amount through the principal’s default.

If A gets a decree for the possession of land against X and Y, and X’s son murders A in
consequence thereof, the existence of the judgement is relevant as showing the motive for the
murder.

Fraud or collusion in obtaining judgement Article 58: If judgement, which is in rem, i.e.,
relevant and conclusive proof against other parties is obtained by way of fraud or collusion
(conspiracy) can be challenged on such grounds. Incompetence of court in above cases can also
be challenged.
For example, probate has to issue by District Judge and not by Magistrate. If issued by
Magistrate, can be challenged.

Where a child is killed in road accident and an irrelevant person by impersonation shows himself
his father and remits the guilty person for his acquittance, can be challenged.

Relevancy of third party’s opinion Article 59: There are certain things which alone court
cannot ascertain. Court needs help of expertise. Court may need expert opinion in following
cases:

1. Foreign law. 2. Science.

3. Art. 4. Identification of handwriting.

5. Finger impression.

Persons who help in such matters are termed as experts. Court forms its opinion with the help of
expertise. Their opinion is relevant.

As a general rule a witness is allowed to speak such facts only as are within his personal
knowledge, i.e., which he has seen or heard or otherwise perceived with his senses. His opinion
or belief as to the existence or non-existence of a particular fact is irrelevant because that is
within the exclusive knowledge of the court or the jury, who are to form their own opinions from
the facts placed before them by witnesses. Sometimes, however, cases come up in courts, which
involve matters that are beyond the range of common experience or common knowledge. In
those cases, to assist the court in coming to a correct conclusion, the opinion of those who have
had training or experience and are consequently experts on the particular matters are allowed to
be given. Expert opinion is relevant and admissible merely to aid the court forming its opinion.
The court can come to its own conclusion independently of expert’s opinion.

Illustrations: The question is, whether the death of A was caused by poison. The opinion of
experts as to the symptoms produced by the poison by which A is supposed to have died, are
relevant.

The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of
mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or
contrary to Law. The opinion of experts upto the question whether the symptoms exhibited by A
commonly show unsoundness of mind, and whether such unsoundness of mind usually renders
persons incapable of knowing the nature of the acts which they do, or of knowing that what they
do is either wrong or contrary to Law, are relevant.

The question is, whether a certain document was written by A. Another document is produced
which is proved or admitted to have been written by A.

The opinion of experts on the question whether the two documents were written by the same
person or by different persons is relevant.
Competency of varied opinion Article 60: Where opinion of expert is challenged or rebutted
remains relevant until disproved. When the opinion of an expert is relevant, any fact which
supports or is inconsistent with that opinion cases bearing similarity to the case under enquiry, in
order to support his opinion. Similarly, evidence of other facts, which though not themselves
relevant to the issue but which are inconsistent with the opinion of the expert, may be given in
rebuttal. The opinion of an expert is open to corroboration or rebuttal.

The question is, whether a certain poison poisoned A. The fact that other persons, who were
poisoned by that poison, exhibited certain symptoms which experts affirm or deny are to be the
symptoms of that poison, is relevant.

Opinion as to handwriting when relevant Article 61: Persons who is acquainted (familiar,
conversant) with other person, his opinion is relevant where matters is concerned with his
handwriting. Statement of manager is relevant with regard to evidence against his stenographer.
Close friend or immediate senior can easily identify the handwriting of their related persons.
They have seen their handwriting in normal circumstances. Two persons who are interconnected
with each other and exchange their documents for regular course of business know each-others’
writing. Where person is aware of other, his opinion becomes relevant.

Comparison of signature by court Article 84: Where court is in doubt about the signature may
order such person to put his signature before court and court may compare itself the signature.
Court may also compare finger impressions.

The court may direct any person present in court to write any words or figures for the purpose of
enabling the court to compare the words or figures so written with any words or fingers alleged
to have been written by such person.

The court may compare the disputed signature, writing, or seal of a person with signatures,
writings, or seals which have been admitted or proved to the satisfaction of the court to have
been made or written by that person. A court may rely upon its own comparison of the signature,
writing, or seal, unaided by expert evidence.

There are various admissible ways of proving handwriting. Thus it may be proved:

1. By the testimony of an expert (Article 59).

2. By the person who wrote or signed the document in question.

3. By a witness who actually saw the party writing or to sign the document in question.

4. By the testimony of a person who is acquainted with the handwriting of the writer (Article
61).

Law of evidence provides another mode of proving the document, i.e., by direct comparison of
the disputed signature or writing with the one, which is admittedly genuine or proved to be so.
The court is also entitled to make independent comparison of handwriting apart from opinion of
expert.
If a person whose handwriting is in question is present in court, he may be asked to write
something for the purpose of comparison with the writing, which is alleged he has written.

Law authorizes court to order any person to allow his Finger Impression to be taken for the
purposes of any investigation or proceeding under the Code of Criminal Procedure provided that
such person has at some time been arrested in connection with such investigation or proceeding.

In applying the provisions of the law on this topic, it is important not to lose sight of its exact
terms. It does not sanction the comparison of any true documents but requires that the writing
with which the comparison is to be made or the standard writing as it may be called, shall be
admitted or proved to have been written by the person to whom it is attributed and next the
writing to be compared with the tendered or, in other words, the disputed writing must purport to
have been written by the same person, that is to say, the writing itself must state or indicate that
it was written by that person.

Opinion as to existence of right or custom, when relevant Article 62: Where court has to
ascertain the opinion about the existence of any general custom or right, the evidence of the
person who is likely to know the particular custom or right is relevant. Evidence of Headman of
village is relevant in such cases. This method is applicable in the ascertainment of general
custom or class of persons and not public. Public means entire Pakistan whereas general custom
means particular class of person.

The right of the dwellers of a particular village to use the water of a particular Well is a general
right within the meaning of this Article.

Opinions of persons who are in a position to know of the existence of a custom or usage in their
locality are admissible. For example, a person, who had been in the habit of writing out deeds of
sale, or one who had been seeing transfers frequently made, would certainly be in a position to
give his opinion whether there was a custom or usage in that particular locality. Opinion of such
person would be admissible.

When a custom has been repeatedly brought to the notice of the courts and has been recognized
by them regularly in a series of a case, it attains the force of law.

The law provides another exception to the general rule that opinions of witnesses are not
admissible in proof of facts. Law states that where any question of custom or right is to be
decided, opinions of person who are likely to know of it, are admissible.

Law makes relevant opinion as to the existence of any general custom or right, of those persons
who would be in a position to know of the existence of such custom or right if it did exist.

The law does not necessarily require that the person stating his opinion should have personal
knowledge of the existence of the right or custom. He will be qualified to state his opinion if he
is in a position to know of the existence of the custom or usage in question in his locality.
The opinions of person likely to know about village rights to pasturage, to use of paths,
watercourses, or ferries, to collect fuel, to use tanks and bathing ghats, mercantile usages, and
local customs would be relevant under this Article.

Tribal or family custom as to inheritance, when in issue, the evidence of members of family or
tribe is relevant. However, it is not necessary that specified instances should be cited.

According to law the opinion of only those person is relevant who are likely to know of the
existence of any general custom or right. Such persons should be residents of the locality.

Opinion as to usages, tenets, etc., when relevant Article 63: Under law opinion of witnesses is
admissible on the following matters:

1. Usages of any body of men, e.g., usages of trade and agriculture, mercantile usages, or any
other usages common to a body of men.

2. Usages of a family, e.g., custom of primogeniture (heritage, legacy, patrimony).

3. Tenets of any body of men. This includes opinion, principle, dogma or doctrine, which is
held or maintained as truth. It will apply to religion, politics, science, etc.

4. The constitution and government of any religious or charitable foundation.

5. Meaning of words and terms used in particular districts or by particular classes.

The opinion, in order to be admissible under law must be that of a person having special means
of knowledge. The opinion may be based on knowledge or information derived from statements
of deceased persons.

It is, of course, not the opinion of every person that is made relevant under law. The person
whose opinion is declared to be a relevant fact by this law are those who have means of special
knowledge of the matters given under law. In this way the opinion of the members of a family as
to the usages of that family is relevant as the opinion of those person who had special means of
knowledge about the usages of that family.

Opinion on relationship when relevant Article 64: Three ways establish relationship, i.e.,
blood, marriage, and adoption. Where court has to ascertain the relationship between two
persons, opinion of the person having special knowledge by way conduct or otherwise know
whether they have been living being husband and wife is relevant. This way of ascertainment is
applicable only in the cases where person has been died and inheritance cases etc.

Special knowledge becomes irrelevant where divorce or criminal proceedings are being
conducted. Remarriage during the lifetime of other partner is prohibited and punishable u/s 494
of Pakistan Penal Code.

1. Kinds of relationship: s
 a) Blood: s

b) Marriage: s

c) Adoption: s

2. Qualities: s

a) Personal knowledge: s

b) Seen marriage: s

c) Attended wedding ceremony: s

d) Attended son’s birthday: s

3. Administrator of Will: s

4. Witness in deed: Transfer of right.

5. Presence during transaction: Like marriage, adoption, or engagement.

Grounds of opinion when relevant Article 65: Where the opinion of an expert is receivable,
the grounds or reasoning upon which such opinion is based may also be inquired into. Opinion is
no evidence without assigning the reason for such opinion.

In civil cases character to prove conduct imputed irrelevant Article 66: Character of the
witnesses in both criminal and civil cases can be taken into consideration. As far as civil cases
are concerned personal character of party is irrelevant. But in criminal cases personal character
of the party is relevant.

Where itself character is under proceeding directly then personal character becomes relevant.
Piousness of the party is not taken into consideration. They have to produce evidence on the
matter under litigation.

In respect of the character of a party, two distinctions must be drawn, namely, between the case
when the character is in issue and is not in issue and when the case is civil or criminal. When a
party’s general character is itself in issue, whether in a civil or criminal proceeding, proof must
necessarily be received of what the general character is or is not. But when general character is
not in issue but is tendered in support of some other issue it is, as a general rule, excluded.

In criminal cases previous good character relevant Article 67: Good character of accused in
criminal case is relevant. The principle upon which good character may be proved is that it
affords a presumption against the commission of crime. This presumption arises from the
improbability, as a general rule as proved by common observation and experience, that a man
who has uniformly pursued an honest and upright course of conduct will depart from it and do an
act so inconsistent with it.
The accused, therefore, is always at liberty to adduce evidence of his good character as tending
to disprove his commission of the offence. But if the offence charged against the accused is
clearly established the evidence of good character will not be of much avail to him.

Meaning of character: According to Oxford dictionary the term “character” means, “collective
peculiarities or persons mental and moral qualities”.

Definition of character: According to Webster’s dictionary, “character is a combination of the

peculiar qualities impressed by nature or by habit of the person, which distinguish him from
others”.

Previous bad character not relevant, except in reply Article 68: Articles 67 and 68 should be
read together. This law does not apply to cases in which the bad character of any person is itself
a fact in issue. A previous conviction is relevant as evidence of bad character. Evidence of
previous conviction is relevant as evidence of bad character according to law.

The rule embodied in this Article is found on the reason that such evidence tends to prejudice the
tribunal against the accused and interferes with the formation of a calm and dispassionate (fair,
impartial, neutral, judicial) judgement of the case.

Evidence of bad character of an accused person (of whose good character, evidence has been
given) is not relevant under law for he purpose of raising a general inference that the accused is
likely to have committed the offence charged.

Such evidence is irrelevant and cannot be legally admitted in evidence whether elicited (obtain,
summon, gain) by prosecution or by the defence. Where accused is caught red handed, there
good character becomes irrelevant. Prosecution cannot advance bad character in arguments. It is
open only where accused gives evidence of his good character.

As a general rule, it is not competent for the prosecution to show in the first instance that the
accused bears a bad character. Where, however, the accused given evidence of his good
character, it will be then open to the prosecution to show that he is of bad character. In other
words, evidence of bad character of the accused is admissible only in disproof of the evidence of
his good character.

Character of affecting damages Article 69: In civil litigation where character affects the
amount of damages, it becomes relevant. It is in civil cases, where the question amount of
damages to be awarded to the plaintiff is concerned, that the character of the plaintiff becomes
relevant.

In civil cases good character, being presumed, may not be proved in aggravation of damages, but
bad character is admissible in mitigation of damages, provided that it would not, if pleaded,
amount to a justification. For instance, in cases of defamation the general bad reputation of the
plaintiff may be proved. In cases of breach of promise of marriage the plaintiff’s general
character for immorality is relevant. In cases of reduction evidence of the general character for
immorality on the part of the person is relevant. The argument in favour of considering
reputation is that the person should not be paid for the loss of that which he never had.

According to the law, evidence can be given only of general reputation and general disposition
and not of particular acts by which such reputation or disposition is shown.

Where the character of a person affects the amount of damages, such character is a part of the
issue. Where A sues B for defamation, and the issue is as to the proper amount of compensating
the question arises whether it is fair to measure his compensation by the quality of an original
actual standing in the community, and, in particular, whether the fact that he had little or no
reputation to loose may be considered as good reason for diminishing the damages accordingly.

Character evidence of the daughter is admissible in an action for seduction brought by the father
for her disgrace to the father must naturally be less or lacking if the daughter is already of bad
reputation for chastity; her previous bad reputation may, therefore, be show. The father’s own
reputation is immaterial in such a case.

In actions for malicious prosecution, the defendant may show the general bad reputation of the
plaintiff as known to him when he launched the prosecution.

Proof of contents of documents Article 72: Contents of documents should be proved either
they are direct or indirect. This proof should be upto the satisfaction of court. Where court does
not satisfy, proof shall remain unacceptable and judgement shall remain in pipeline. It may be
proved by oral or documentary evidence, but where documentary proof is available, it excludes
oral evidence. Oral evidence comes later where documentary proof becomes impossible. Where
both evidences are available, as a general rule, documentary evidence excludes oral evidence.

Where the contents of document are to be proved, the general rule is that these must be proved
by the production of the original document or what in other words is known “primary evidence”.
Where, however, the original cannot be obtained, e.g., where it is lost or destroyed due to any
certain or uncertain reason, there the secondary evidence, e.g., a copy of it or an oral account of
its contents may be adduced.

It is clear that contents of document must be proved by primary evidence unless secondary
evidence is declared admissible under circumstances which law accepts.

The term primary and secondary evidence, are mainly of importance in connection with
documents though the term primary evidence is also, but rarely, applied to oral evidence of
which direct evidence is said to be primary.

Primary evidence Article 73: Article 73 says that as far as primary evidence is concerned,
document itself constitutes it on which the dispute arisen.

This Article defines “primary evidence”, which means the document itself produced for the
inspection of the court. The fundamental notion of producing the primary evidence that the terms
of writing must be proved by producing it and not by offering testimony about it. When the
writing constituting a bilateral transaction is executed by the parties in duplicate or multiplicity,
each of these parts is the writing, because by act of the parties each is as much the legal act as
another. It can make no difference that one party has signed on the document, taken by the other,
except where it is desired to prove specifically the signature.

In the case of counterparts, each document is fully executed by that party. Execution in
counterparts is a method of execution adopted when there are two parties to the transaction. Only
that is to be bound by it and that party delivers it to the other party. Thus if the transaction is a
contract between A and B, the document is copied out twice and A alone signs one document
while B alone signs that other.

Where a document is executed in parts, i.e., each party prepares document on the stamp paper of
the similar value and signs it shall constitute the original document admissible for evidence. The
expressions “executed in several parts” and in “counterparts” refer to the mode in which
documents are sometimes executed. It is necessary to execute a document in several parts when
each party to a transaction wants to have a complete document in his own possession. To effect
this, the document is written as many time over as there are parties and each document is
executed, i.e., sealed and signed, as the case may be, by all the parties and then each party retains
one document thus executed.

There is a far better guarantee for a number of printed paper struck off from the same machine at
the same time being correct facsimiles of each other, than of a number of written paper, for here
the draftsman or draftsmen may introduces differences impossible with the machine. In this case,
each machine made copy is accepted as primary evidence of all the other, inter se. For instance,
if it is desired to prove the publication of libel in a newspaper and copy of the issue in which the
libel appears would be primary evidence of publication in all the other copies of that issue. Thus,
printed, lithographic, photographic, and other reproductions made by one uniform process are
primary evidence of each other. But if, in the circumstances of a particular case, the original not
a reproduction but the document from which the reproduction was made, the reproduction would
be merely secondary evidence of the original.

Secondary evidence Article 74: Where court accounts for a party and party advances reason for
the lost or damage of primary evidence, the secondary evidence shall be admissible. Original
document may be brunt, lost, stolen, or in the possession of opponent or adverse party and
cannot be produced in court as primary evidence.

Law says that primary evidence is the best evidence obtainable, i.e., the statement of an
eyewitness or an original document. This Article defines secondary evidence. The secondary
evidence as the name implies assumes the existence of better evidence, i.e., the original
evidence. As a rule secondary evidence is not admissible until the non-production of primary
evidence is accounted for.

Following constitutes secondary evidence:

1. Certified copies: Certified copies mean copies signed and certified as correct by officials
having custody of the original. Public document may be proved by mere production of
 certified copies. Law says that every document, which purports to be a certified copy, is to be
presumed to be genuine.

2. Copies by mechanical process: Where a number of documents are all made by one uniform
process, as in the case of printing, lithography or photography, each is primary evidence of
the contents of the rest. But where they are all copies of a common original, they are not
primary evidence of the contents of the original. This law supposes the document from which
a mechanical reproduction is made to be the original document. Copies in order to be
admissible as secondary evidence must have been made from the original by some
mechanical process which would ensure the accuracy of the copy, e.g., printing, lithography,
photography and the like.

3. Copies made or compared from original: A copy merely as a piece of paper, has no
standing as evidence. It is not admissible even as secondary evidence of the contents of the
original. But a copy made from the original though not compared with the original is
admissible as secondary evidence. So it is a copy compared with the original though not
made from the original. It follows, therefore, that a copy, which has neither been made from
the original, nor has been compared with the original, will be inadmissible in evidence.
Secondary evidence under this Article includes copies made from or compared with the
original and even oral account of the contents or a document given by some person who has
himself seen it.

4. Counterparts of document: Where a document is executed in counterparts, each party only

signs the part by which he is bound and each counterpart is the primary evidence against the
party signing it and his privies. But each counterpart is only secondary evidence as against
the parties who did not execute it. Execution in counterpart is a method of execution, which
is only adopted when there are two parties to the transaction. Thus simultaneous execution of
a lease and qabuliat (OλÌJ³) is a well-known form of the execution of a document in
counterparts.

5. Oral evidence of eyewitness: This clause means that the oral evidence of the contents of the
document must be given by some person who has seen its contents, that is to say, who has
read the document. The oral account of contents of a document given by some person who
has merely seen it with his own eyes but is unable to read it is not secondary evidence of the
document.

Proof of documents by primary evidence Article 75: This law embodies the general rule that
the contents of a document may be proved either by primary or by secondary evidence. This law
rests on the maxim that the “best evidence” must always be produced. The reasons are simple
and obvious enough, as dictated by common sense and long experience. Since the best evidence
of the contents of a written instrument is the instrument itself, that must be produced and no
secondary evidence of its contents will be admissible unless the absence of the original is
satisfactorily accounted for. For example, by proving that it is lost or destroyed, or that it is in
possession of the opposite party and he will not produce it after a notice to produce has been duly
served upon him.
Cases in which secondary evidence relating to document may be given Article 76: The
general rule is that the contents of a document must be proved by the production of the original
document itself and that no secondary evidence of its contents will be admissible unless the non-
production of the original has been satisfactorily accounted for. Document means a document
admissible in evidence. If a document is admissible in consequence of not being registered or not
being properly stamped, secondary evidence cannot be given to its existence. There are
exceptional cases, however, in which secondary evidence of document is allowed and those are
stated in this Article which are as follows:

1. Document is beyond reach: This clause contains three conditions for the application of this
clause namely, that when the original is:

(1) In the possession or power of the person against whom the document is sought to be
proved.

(2) Of any person out of the reach of or not subject to the process of the court.

(3) Of one legally bound to produce it but remain fails after notice is served.

Under this clause secondary evidence may be given of the contents of the document when the
original is in possession of power of the adverse party and he fails to produce it after a notice
to produce has been duly served upon him.

In this case any secondary evidence of the contents of the document is admissible.

2. Written admission against interest: Where opponent party admits the contents in writing.
Under this clause written admission of the contents of a document by person against whom
they are sought to be proved are always admissible as proof of the contents of the document
even though the original is in existence and no notice to produce it given. Under this clause
the person contemplated is the person in whose possession the document is. In such a case
secondary evidence of the contents of such a document can be given without giving notice to
that person to produce the document.

Only written admission is admissible.

3. Destruction cases: The loss of destruction of writing, if satisfactorily shown, opens the door
for the admission of secondary evidence as to its contents. Copy of a private document is
only admissible after proof of loss or destruction of original. Where it has been satisfactorily
shown that the original writing is lost or destroyed, secondary evidence of the contents of
such writing is admissible.

In this case any secondary evidence of the contents of the document is admissible.

4. Heavy in size: Secondary evidence is admissible when it is impossible or highly

inconvenient to produce the original or on account of the great and impracticability of
producing the original. This occurs where the original is a fixed inscription (writing), such as
that on a tombstone or flag displayed at a public meeting or a placard pasted on a wall.
 Similarly notices warning to trespassers affixed on boards may also be proved by secondary
evidence, since they account conveniently, if at all, be produced in court.

In this case any secondary evidence of the contents of the document is admissible.

5. Immovable: The law says that thing not easily moved, as in the case of things fixed in the
ground or a building, for example, notices painted on walls, tablets in buildings, tombstones,
monuments, or marks on boundary stones or trees. Secondary evidence is admissible on
account of the great inconvenience and impracticability of producing the original.

In this case any secondary evidence of the contents of the document is admissible.

6. Public document: Where the original is a pubic document, secondary evidence of its
contents is admissible even though the original is in existence and available. This exception
has been adopted for reasons of “the great inconvenience in removing the public documents”
and the risk of loss that would be incurred if they were removable. Under this clause only a
certified copy of the document is admissible. This clause is intended to protect the originals
of public records from the danger to which they would be exposed by constant production in
evidence. Public documents can only be proved by their production or by secondary evidence
of the nature described in this clause. The oral evidence of a witness cannot prove them.

Only certified copy of the document, but no other kind of secondary evidence, is admissible.

7. Permissible copy: Certified copies are admissible as secondary evidence under this clause.
Articles 76, 78, and 86 may be read along-with it where an original document cannot be
given in evidence owing to a statutory ban its certified copy cannot be admitted in evidence,
e.g., certified copy of the income tax return. When a document falls within this clause only a
certified copy is admissible in proof of its contents.

Only certified copy of the document, but no other kind of secondary evidence, is admissible.

8. Numerous accounts: This provision is meant for saving public time. Where the fact to be
proved is the general result of the examination of numerous documents and not the contents
of each particular a document and the documents are such as cannot be conveniently
examined in court, evidence may be given, under this Article, as to the general result of the
document by person has examined them and who is skilled in the examination of those
documents, although they may be public within the meaning of this Article.

Evidence may be given as to the general result of the documents by any person who has
examined them, and who is skilled in the examination of such document.

9. Forming judicial record: Where original document is within the custody of court being
judicial record and remains unable to produce, its secondary evidence shall be admissible.

Rules as to notice to produce Article 77: Notice is required in order to give the opposite party a
sufficient opportunity to produce the document, and thereby to secure the best evidence of its
contents. Such notice may be disposed of with if it is not necessary on the pleadings or the court
thinks fit to dispense with it.
When a document is in the hands of opposite party, it is necessary to serve him or his counsel
with a notice to produce it and upon proving the service of the notice, secondary evidence of its
contents may be given. The object of a notice is to give the adverse party an opportunity by
producing the original to secure, if he pleases, the best evidence of its contents, and if he does
not, to enable the party serving notice to give secondary evidence.

Notice to produce is not necessary in the following cases:

1. Notice: When the document is itself a notice, e.g., a notice to quit, a notice of dishonour of a
bill, or a notice to produce. The reason for this is that if notice were required in case of
notices, notices must go on ad infinitum (infinity, endless).

This exception appears to have been originally adopted in regard to notices to be produced
for the obvious reason that if a notice to produce such a document were necessary the series
of notices would become infinite.

2. Awareness of adverse party: Where a document is in the possession or under the control of
a party and he fails to produce it, it should be taken that from the very nature of the case he
knew that he would be required to produce it.

A notice to produce is not required when the nature or the case sufficiently informs the
adverse party that he will be required to produce the document.

3. Fraudulent acquisition of adverse party: A notice to produce is not required if the adverse
party obtains the possession of the document, the production of which is required, either
through fraud or force.

4. Original already in court: The object of the notice is not to give the opposite party an
opportunity of producing the proper testimony to support or impeach the document, but
merely to enable him to produce it, if he likes, at the trial and thus to secure the best evidence
of its contents.

Where a party is shown to have the original with him in court and refuses to produce it,
secondary evidence will be admitted notwithstanding the want of a notice to produce.

5. Admission of lost by adverse party: If the adverse party or his agent admits the loss of the
original document, notice to produce the document to the adverse party is nugatory
(worthless). Where the document is admitted by the opponent to have been destroyed or lost
or even out of his possession, no notice is necessary, for it is no longer a case of opponent’s
possession but of loss.

6. Person, out of the reach or not subject of the court: Where the original is in the
possession or power of a person outside the jurisdiction of the court, no notice to produce is
necessary.

Proof of signature and handwriting of person alleged to have signed or written document
produced Article 78: No writing can be received in evidence as a genuine writing until it has
been proved to be a genuine one, and none as a forgery until it has proved to be a forgery.
Writing itself is not evidence of one thing or the other unless accompanied by a proof of some
sort, admissible in evidence.

Merely presentation of document in court as evidence is not sufficient. It is to be proved. A

question always arises when document is produced, whether it is genuine one, i.e., signed or
written by the person by whom it purports to have been signed or written.

Two witnesses must prove its truth. Where two witnesses are not available, one alive witness
must testify its truth as document was written and executed before him and was signed in his
presence. Attesting witness has to be brought in court to prove contents of document.

Where signature is obtained on white paper and later on text is written on it in the absence of the
person, who had signed it, it shall not constitute the document originally executed. Execution of
document must be completed in the presence of the persons between whom it is. It shall not be
acceptable at all in the court of law. Such type of document does not create any right acceptable
by court.

Where a document is registered, it may be taken to be proved without any independent proof of
its execution being given.

This Article does not, however, lays down any particular mode of the proof of the signature of
the writing, it merely requires the signature or the writing to be proved. Any mode of proof
recognized by the Order may, in the discretion of the Judge and the circumstances of the case be
considered sufficient.

1. Comparison by Court itself under Article 84:

2. Testimony of export under Article 59:

3. Person who wrote:

4. Witness who saw:

5. Who acquittance handwriting under Article 61:

6. Counterpart:

7. Attesting witnesses:

8. Admission of party:

9. Circumstantial evidence:

10. Modern devices:

Proof of execution of document required by law to be attested Article 79: Two witnesses
must prove the authenticity of the written document. This is legal requirement without which is
has not evidentiary value at all. Both witnesses shall have to testify its truth. If one witness is
died, second one shall testify in the absence of second one. Witness testifying must be subject to
the court. Witness must be capable being witness. When witness becomes mad after making
attestation, he shall become incompetent to testify the contents of document.

There are, however, certain exceptions to the rule that a document required by law to be attested
must be proved by calling two of the attesting witnesses. These are:

1. When a party to the document admits its execution by himself.

2. When the document is thirty years old, the court may presume due execution and attestation
and dispense with proof.

3. When the document is a registered one and executant does not specifically deny its
execution, against whom it is to be used.

4. When the document is proved to be in possession of the adverse party who refuses to
produce it after a notice. In such a case the party may give secondary evidence without
calling the attesting witnesses.

Attestation means the witnessing of actual execution of document and of mere acknowledgement
of execution by the executant. The attesting person must have seen the executant signing the
document. Mere acknowledgement by executant before attesting person is insufficient.

Proof of signature: Ordinary rule for proving signature of any person on document would be to
call the person in evidence. Where person who was alleged to have executed document had
denied his signatures, calling that person in whose presence such document was executed could
prove his signatures.

Proof where no attesting witness found Article 80: Mere presentation of original document in
court is not sufficient to testify its truth or originality. Not only its production in court is
necessary but its prove by the attesting witness is necessary.

This Article lays down the mode of proof of execution of documents that require attestation. This
means that the Article is not attracted for the proof of documents, which requires no attestation.
It provides for the contingency when no attesting witness is found or the document is executed in
United Kingdom. It lays down that an admission of execution of the document by the party shall
be sufficient proof of the execution of the document even thought the document is one which by
law requires to be attested.

Where the witness is not available who had attested the document at the time of its execution, it
shall be proved either he has been died or gone elsewhere not possible to call.

Where the executant of, and all the marginal witnesses to, a mortgage deed was deed, it was held
that the mortgage deed was sufficiently proved by evidence that the signature of the mortgagor
was in his own handwriting. Also that the signatures of two of the marginal witnesses, were in
their handwriting.
Admission of execution by party to attested document Article 81: Law enacts that an
attesting witness is not necessary when a party executing a document admits the fact of
execution. This Article applies only to a document duly executed, that is, executed in accordance
with the formalities connected with a particular document.

The term “admission” in this Article relates only to the admission of a party in the course of trial
of a suit and not to the attestation of a document by the admission of the party executing it.

This Article applies only to documents, which have been properly attested. Provisions of law
requiring for the validity of certain instruments their attestation by certain number of witnesses
are rules of law and not mere rules of evidence.

According to this Article, the admission of execution is sufficient proof against the party who
admits the execution, but as against other parties the documents is to be proved by calling at least
one attesting witness. Such admission is neither binding upon the other defendants who were not
a party to it, nor upon the legal representative of the person admitting execution, as for instance,
his son, or transferee.

The effect of this Article is to make the admission of the executant a sufficient proof of the
execution of a document as against the executant himself, even though it may be a document
attestation of which is required by law.

This Article operates only where the person relying on a document has not given any evidence at
all of due execution of the document by the executant but relies on an admission of execution by
the later. So that if a mortgagor admits execution of a document in the written statement, it is
wholly unnecessary for the mortgagee to adduce any evidence as to the execution of the
document.

Where party admits the execution of document, it becomes sufficient proof of its truth and
originality. Sale agreement in which at least two witnesses are necessary and registry in which
also two witnesses are necessary itself is proof. Where legal requirements have been fulfilled, no
extra effort is required to prove the document.

Where it is proved that the document was executed on gunpoint or the white paper was got
signed and was not executed in accordance to law shall not be proof of its truth.

Proof when attesting witness denies the execution Article 82: Principally the attesting witness
is required to prove the contents of document, but where he so denies, other means are required
to prove the document. This denial may be at any reason.

This Article applies to all attesting witnesses, whether the documents require attestation or not.
Thus, this Article becomes applicable if the attesting witness when called and examined deposes
that the person alleged to have signed the document had only signed a blank paper. To sum up,
this Article provides that if attesting witness to a document denies or does not recollect the
execution of the document, its execution may be proved by other evidence.
Where an attesting witness has denied all knowledge of the matter the case stands as if there was
no attesting witness and the execution of the document may be proved by other independent
evidence.

The attestation of a document does not amount of an admission of its contents by the attesting
person unless it can be proved that the document was read ever to him and that he made
attestation conscious of the statement made in the document.

Proof of document not required by law to be attested Article 83: Under Registration Act,
there are two types of documents, i.e., registration of those is necessary and those registration of,
which is optional. If document is got registered registration of, which is optional, does not
require to be proved as if it was unattested.

This provision is applicable only if all the parties are before the court, and in ex parte
proceedings, the attesting person should yet be called. The executant of a receipt need not be
examined where the payer has sworn to the payment.

Where the law does not require attestation for the validity of a document, it may be proved by
admission or otherwise, as though no attesting witness existed.

Comparison of signatures, writing, or seal with other admitted or proved Article 84: There
are certain modes of proving documents as follows:

1. Opinion of expert Article 59: Where court becomes unable to ascertain the originality of
the fact, opinion of an expert resolves the problem.

2. Opinion of the person so acquainted Article 61: Person who is so acquainted with the
handwriting of the writer, e.g., Manager may prove the handwriting of his Steno.

3. Person who writes the document: Person who actually writes or signs the document may
also prove the truth of the document.

4. Who has seen the writing actually: Person who actually saw the party wrote or signing the
document may also prove its contents.

Court may compare the signature, writing, or seal itself. Person present in court is asked to
produce his writing, signature, or seal to append before court. Court itself examines the
originality.

The court may compare the disputed signature, writing, or seal of a person with signatures,
writings, or seals which have been admitted or proved to the satisfaction of the court to have
been made or written by that person.

In applying the provisions of this Article it is important not to lose sight of its exact terms. It
does not sanction the comparison of any true documents but requires that the writing with which
the comparison is to be made or the standard writing as it may be called, shall be admitted or
proved to have been written by the person to whom it is attributed. Next the writing to be
compared with the tendered or, in other words, the disputed writing must purport to have been
written by the same person, that is to say, the writing itself must state or indicate that it was
written by that person.

Maxim “secundum allegata et probat” person alleging a fact must prove it. Plaintiffs having
relied upon documents in question were required to satisfy court about the correctness and
genuineness of the same.

Where such signature, writing or seal on particular document is not proved or admitted to be
genuine, it cannot be legitimately used for comparing it with the signature, writing, or seal on
other documents.

A court can call upon the accused to give his writing in court and make it available for
comparison by an expert. A court has power to direct an accused person, present in court to make
his finger impression for the purpose of comparison with another impression supposed to have
been made by him.

Public documents Article 85: Documents are of two types, i.e., public and private. Article 85
deals with public documents. Article 86 simply says that documents which do not fall within the
purview (reach, range) of Article 85 are private documents.

Under Article 85 only such documents are considered to be public document as form the acts or
records of public officers. The mere fact that a document is kept in a public office does not entail
the inference that it is a public document. It must be shown that it was prepared by a public
servant in the discharge of his official duty. It can be produced as evidence without seeking of
permission from court.

Following are the public documents as enumerated under Article 85:

1. Record or Act of the sovereign such as statues, gazettes, proclamations, and such like that.

2. Act or record of the tribunals such as records of courts of justice, decrees, judgements, writs,
warrants, bill, etc.

3. Act or record of the public officers, legislative, judicial and executive of any part of Pakistan
or of a foreign country.

4. Public records kept in Pakistan of private documents such as registries, Wills, etc.

5. Record of judicial proceedings such as record of confession made by Magistrate, deposition

(attestation, announcements) of witnesses, oral information given to the pubic officer as to
the commission of a cognizable offence and reduced to writing by him u/s 164 of Code of
Criminal Procedure.

6. Any documents which maintains public servant under any law of Pakistan such as mortgage
deed register according to law is a public document under this clause.
7. Registered documents the execution whereof is not disputed.

Private documents Article 86: All the documents, which do not fall within the definition of
public documents, are private documents. All the documents, which are not defined as public
documents, are private documents.

Certified copies of public documents Article 87: Under this Article certified copy of public
record is defined. Following are the ingredients to form a public record as certified copy:

1. Who may issue: A public officer in whose custody public record is kept ordinarily during
the course of normal work is authorized by law to issue certified copy of public record.
Person who does not keep such record in ordinary course of official duty is not authorized by
law to issue such certified copy.

2. Payment of legal fee: It is very important part of the issuance of certified copy of public
record that fee has been paid for it before its issuance.

3. Issuance on demand: Person who has right to inspect the record may apply for the certified
copy of public record. It is not issued without application of its demand.

4. Certification on foot of document: At the foot of the copy from public record, officer
authorized puts the words “certified to be true copy”. Mere photocopy of public record does
not form certified copy unless it is specifically certified as provided in law under Article 87
of the Qanun-e-Shahadat Order.

5. Name of issuing authority: Person who is issuing the certificate shall mention his name on
certified copy.

6. Designation: Authority issuing certified copy shall also provide her designation as to have
authority to issue such certified copy.

7. Signature: Officer issuing the certified copy puts his signature below the words “certified to
be true copy”.

8. Date: Date is mentioned on which certified copy is issued.

9. Seal: Certified copy of public record remains incomplete until or unless official seal is not
put into it.

Proof of documents by production of certified copies Article 88: Under law, entry contents of
public record can be proved by production of certified copy. This rules is based on the ground of
convenience of, since removal of the original for production in evidence would delay and hinder
the official use of the files, would subject them to the risk of loss and would damage them by
constant wear and tear.

Proof of other public document Article 89: This Article indicates how certain public
documents are to be proved. A public document may be proved by the production of the original,
or by a certified copy under Articles 88, or in the manner prescribed by Article 89.
1. Government notification may be proved by producing a copy of the Gazette in which it is
published

2. Proceedings of the Legislature may be proved by the journals of those Legislatures, or by

published Acts or by copies purporting to be printed by Government.

3. Proceedings of municipal body may be proved by a copy of which proceedings certified by

the keeper thereof, i.e., secretary of municipality.

4. A foreign public document may be proved by the original or by a certified copy. But in the
later case, the legal keeper of the document must certify the copy and there must be a
certificate by a notary public or a diplomatic agent, to the effect that the legal keeper of the
original has certified the copy.

Presumption as to genuineness of certified copies Article 90: Law raises a presumption as to

the genuineness of certificates, certified copies or other documents which purport to be certified
by any officer of the Central Government or by duly authorized officer in an acceding or non-
acceding State.

Document produced in court in compliance of prescribed manner is presumed genuine and

officer who attests it is presumed authorized by law until this presumption is disproved.

Court is bound to draw the presumption that a certified copy of a document is genuine and also
that the officer signed it in the official character which he claimed in the said document. This
presumption is liable to be rebutted. The words “shall presume” indicate that if no other evidence
is given the court is bound to find that the facts mentioned in the Article stand exist.

When case comes to court, court presumes in favour of one party. Accused is presumed innocent
until or unless prosecution proves his guilt.

Where stolen goods are recovered from a person, court shall presume that he is either thief or
receiver of stolen goods until or unless he proves his innocence.

There are two types of presumptions, i.e., presumption of law (ir-rebut-able) and fact (rebut-
able).

Under the old law of Evidence, where child is born after marriage, even after a week, was
presumed legitimate provided husband does not denounce his legitimacy. This was rebut-able
presumption of fact.

According to current Qanun-e-Shahdat Order, a child is presumed legitimate if he borns at least

after six month of the solemnization of marriage provided husband does not denounce his
legitimacy. This is also rebut-able presumption of fact.

Where presumption has been drawn in favour of one, no one can rebut it. Law has presumed that
child under age of seven year is doli incapax, i.e., incapable of having mens rea. Therefore
murder cannot be proved against child under seven years of age. This is ir-rebut-able
presumption of law.

Presumption as to documents produced as record of evidence Article 91: This Article does
not deal with the admissibility of the document referred to therein, but simply dispenses with the
necessity of their formal proof by raising the presumption that everything in connection with
them had been legally and correctly done. The court shall presume these things, viz.

1. That the document purporting to be recorded evidence or statements or confessions are

genuine.

2. That the statements as to the circumstances under which they were taken by the officer who
affixed his signature are true.

3. That the evidence, etc., was duly taken.

The Article does not render admissible any particular kind of evidence but only dispenses with
the necessity for formal proof in the confession duly taken is tendered in evidence in the Sessions
Court, calling Magistrate who recorded it. The court in such a case will presume that the
document is genuine and the signature affixed is that of the Magistrate by whom it purports to be
signed.

Presumption as to genuineness of documents kept under any law Article 92: Any document
kept as required by law is presumed correct and genuine. Marriage Certificate is a public record.
Date of birth in Municipal Committee is public record thus authentic and correct. Under this
Article the court is bound to presume the genuineness of every document purporting to be a
government Gazette, a newspaper, a journal, or a copy of a private Act of Parliament printed by
the official printer. The presumption is rebut-able.

Presumption as to maps or plans made by authority of government Article 93: Any plan or
map which government either central or provincial publishes for public purposes are supposed
correct and genuine. Published charts are true until they are rebutted or disproved. They must be
available in market for public use. Where map is prepared for departmental use or for own use
shall not be presumed as genuine or correct.

Presumption as to collections of laws and reports of decision Article 94: The Article
dispenses with the proof of books purporting to be published by the government of any country,
containing laws and decisions of the court. Their accuracy and genuineness is to be presumed.

This Article lays down that when the court has to form an opinion as to a law of any country, any
statement of such law contained in a book purporting to be printed or published under the
authority of the government of that country and to contain any of the laws of that country shall
be presumed to be genuine.

Presumption as to power of attorney Article 95: When principal gives authority to his agent to
act on his behalf is presumed the act of the principal itself. This Article authorizes court to
presume the genuineness of the execution and authentication of a power of attorney when such
execution was done before and authentication was done by any of the officials mentioned in this
Article.

The court shall presume the due execution and authentication of a power of attorney when
executed before and authenticated by a Notary Public, or any court, Judge, Magistrate, Pakistan
Counsel, or Vice Counsel, etc.

A power of attorney is writing authorizing another person to do any lawful act instead of another,
e.g., to receive debts or dividends, sue a third person, etc. This instrument empowers that other to
act in his name exactly as the party giving it himself would do until revocation.

Presumption as to certified copies of foreign judicial records Article 96: Where double
certification is obtained as to foreign judicial record attested by Pakistan Counsel is presumed
correct. It is mandatory and not optional. The authority of that relevant country firstly attests
copy of the foreign law and then by the Pakistan Counsel.

This Article lays down that the court may presume the genuineness and accuracy of any
document purporting to be certified copy of any judicial record of any foreign country, provided
such copy is duly certified by a representative of the Central Government in that country, to the
effect that the copy has been certified in conformity with the rules in force in that country for the
certification of copies of judicial records. The presumption is permissive as the words “may
presume” indicate and is rebut-able.

Presumption as to books, maps, and charts Article 97: Where any book, map, or chart is
published nature of which is public or general interest, court presumes that it is done by the
person who claims it. Where book of art or science is published for public consumption, court
draws presumption as to its author, publisher, and date of publication is correct as indicated in it.
But the rest material is to be proved.

Presumption as to telegraphic message Article 98: Where telegraphic message is transmitted

from the telegraphic office, court may (optional) presume its contents are correct because there is
no reasonable cause that office of telegraph shall change the contents of the transmission. But
name of the transmitter is not presumed as it appears on the face of transmission. Contents of the
telegraphic message are presumed correct which were given to telegraphic office. Presumption is
not drawn as to its sender. It is to be proved.

The court is forbidden to make any presumption as to the person who transmits telegram. The
Article enables the court to accept the hearsay statement as evidence of the identity of the
message delivered with that handed in.

This Article raises the presumption that a telegraph message received by addressee from the
telegraph office corresponds exactly with the message handed in by the sender at the office of
origin. This Article does not allow court to presume as to the persons by whom the message was
delivered for transmission.
Presumption as to due execution, etc., of documents not produced Article 99: Where
document is executed, court shall presume that it is originally executed according to law and date
and signatures are correct. Two competent witnesses have duly verified it.

Where document is within the custody of person other than original, court shall summon him.
Where summon is defeated court shall allow the secondary evidence and also presume that the
document refused to produce was duly attested, stamped, and executed in the manner prescribed
by law.

Presumption as to documents thirty years old Article 100: Normally document produced in
court is required its proof. But the ancient document of thirty years needs not to be proved. Its
contents are presumed correct but it is optional and not obligatory on court. As is apparent from
the words of the Article, the presumption mentioned herein is permissive and not imperative.
Thus, if a document is proved to be thirty years old and comes from the proper custody, the court
is not bound to presume its genuineness.

Where documents is within legitimate custody where they should be, theirs contents also be
presumed correct. Custody of bank is valid where documents are pledged for the purpose of
credit facility. Custody of real brother is also real custody where actual person goes to abroad
and hands over them to his real brother for it proper use.

Certified copies of documents thirty years old Article 101: Certified copy of the ancient
document of thirty years is as admissible as the original is.

Evidence of terms of contracts, grants, and other disposition of property reduced to form of
document Article 102: When a transaction has been reduced to writing either by agreement of
the parties or by requirement of law, the writing becomes the exclusive memorial thereof, and no
evidence shall be given to prove the transaction, except the document itself or secondary
evidence of its contents where such evidence is admissible.

Sale, transfer, and mortgage etc. are the transactions write up of which is compulsory by law.
Without the attestation by two competent witnesses they cannot be got registered.

Meaning: Where parties agree to reduce into writing the transaction, it must be produced in
court as evidence. Oral evidence is not allowed. Principal and same document is requirement of
the law for the purpose of evidence. It should be produced in the court.

Types of document: There are two types of documents, i.e., one is registration of, which is
compulsory, and second one is optional. One is required to be reduced into writing compulsorily
and second one is optional. Transfer of Property, sale, mortgage, and gift should be duly
executed, i.e., written, signed, verified, stamped, and attested. Document should not be prior
signed but subsequently. Write up on the paper signed before its execution is nullity in the eyes
of law. It should be properly executed, as law requires.

Rule: According to the law, where there is written document, it must be produced in court to
prove contents. In certain circumstances it cannot be made available to produce in court as
evidence. It may be within custody of opponent party, which has refused to produce it. It may
either be damaged by fire, earthquake, flood, stolen, washed away by the river. Where damage is
caused, it must be proved by right reasons, then court may account for and may permit to adduce
secondary evidence.

Where document is within custody of opponent party and it has refused to produce it after
summoning of the court, then also court shall allow secondary evidence. Oral evidence can be
adduced. Also certified photocopy of public record can be produced.

Types of secondary evidence: There are three types of secondary evidences admissible in place
of original document such as:

1. Photocopy: It is made from original document by some mechanical process. Same copy is
produced.

2. Made from original: Copy, which is made from the original, can also be produced as
secondary evidence.

3. Counterpart of original: Where more documents are prepared and each party executes
them and then exchanges the documents bearing the signature of others is called counterpart
of the original. It is admissible in evidence as secondary evidence.

4. Oral evidence: Court may also permit oral evidence where document is not available.

Exceptions: As a matter of rule original document is to be produced in court as evidence, but

there are some exceptions in the general rule as follows:

1. Public document: Certified copy from public record does not need to be original thus it can
be produced without permission of court.

2. Probate: Will can be proved by the probate thus production of probate becomes immaterial.

3. Any document: Any document where there are more than one original documents can be
adduced as evidence without permission of court in place of original one.

Exclusion of evidence of oral agreement Article 103: Where any document required by law
should be written, it must be written and it shall exclude the oral evidence. Only written
document must be produced before court to prove its contents.

There are some exceptions to this general rule such as:

1. Any act of fraud or illegality: Where any fraud or illegality is committed in the execution
of document can be proved by oral evidence.

2. Separate connected agreement: Where document is silent on any separate connected

agreement, can be proved by oral evidence. It should not be irrelevant to the document.
3. Condition precedent on execution: Where any condition is attached separately to execute
the document, can be proved orally.

4. Distinct subsequent condition: Where any subsequent condition is imposed to alter the
agreement orally, can be proved by oral evidence. This subsequent condition is not
applicable where it is required by law to be written.

5. Implied provision of usage or custom: Where any custom or usage is not expressly
provided under contract and is impliedly considered being part of contract can be proved
orally provided it is not inconsistent with the terms of contract.

6. Language of the document: If a document is doubtful in its meaning, evidence of

surrounding circumstances is receivable for the purpose of throwing light on its
interpretation. Such evidence is admitted on the principle that a person, who has to interpret a
document, ought to be put into the same position, as the person whose language is being
interpreted.

Exclusion of evidence against application of document to existing facts Article 104: Where
the language of document is patent and plain and not latent, oral evidence shall be disallowed to
show different intention.

Where no doubt arises from the plain language of document, otherwise evidence is wholly
inadmissible to show different intention was meant.

For instance, A agrees to sell B white horse, and actually A is in possession of white horse, here
different intention shall not be allowed as to red horse was meant.

Evidence as to document unmeaning in reference to existing facts Article 105: Where the
language of deed is plain but doubt arises at to its meaning, then evidence can be given to clarify
its real sense.

For example, A agrees to sell land to B situated in Lahore but A has not land in Lahore but in
Shahdara Town, possession of which B has taken since the execution of deed.

Evidence as to application of language, which can apply to one only of several persons
Article 106: Where the language of deed is not accurately fits to a person or some other fact,
evidence can be given to fix the meaning of the document.

For instance, A sells to B one Pentium – III Computer, but A possesses two such computers, thus
evidence can be adduced as to show whether which computer was meant to sell.

Evidence as to application of language to one of two sets of facts to neither or which the
whole correctly applies Article 107: Where language of the deed could not mention the
application of contract on one set of fact and applies partly on two sets, then evidence can be
given to fix the application of agreement.
For example, A agrees to sell to B, “my land at X in the occupation of Y”. A has land at X, but
not in the occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence
may be given of facts showing which he meant to sell.

Evidence as to meaning of illegible characters, etc. Article 108: Evidence as to the meaning
of illegible characters, e.g., shorthand or writer’s notes or of foreign, obsolete, technical, local,
and provincial expressions and of words used in a peculiar sense may be given.

As a general rule, in constructing written instruments, the grammatical and ordinary sense of the
word is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest
of the instrument, in which case the ordinary and grammatical sense may be modified so as to
avoid that absurdity or inconsistency.

Who may give evidence of agreement varying terms of document Article 109: Where right
of third party suffers from the oral agreement of two parties apart from whatever is committed in
a deed, he may give evidence to prove the fact upto the extent of his suffering.

For example, A and B make an agreement to sell wheat. An oral agreement is made for one
moth’s credit. C can give evidence where his interest suffers from the agreement of A and B.

Facts judicially noticeable need not be proved Article 111: Judicial notice is the cognizance
taken by the court itself of certain matters which are so notorious or clearly established that
evidence of their existence is deemed unnecessary. Judicial notice is taken of such facts, the
notoriety (fame, repute) or regular occurrence of which in the ordinary court of nature or
business had made them familiar to the Judge. And if such facts form part of the litigant’s case,
he is excused from proving them or in other words, the court will take judicial notice or
cognizance of their existence.

Laws of Pakistan or proceedings of parliament etc. need not to be proved. Court itself is required
to take their cognizance.

When the case comes to court for its determination, it needs proof. It must be proved. It cannot
be decided until it is proved. There is no need to prove the issues on which court is required to
take judicial notice, e.g., laws of Pakistan, flags of countries etc.

Facts of which court must take judicial notice Article 112: This Article contains the long list
of laws, which are judicially noticeable by court itself.

Facts admitted need not be proved Article 113: In civil cases if party admits his case against
whom, case to be proved, there shall be no need to prove it by evidence. In civil litigation written
statement is supplied to the court which may include admissions on certain facts which needs no
proof.

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or
stated to be not admitted in the pleading of the defendant, shall be taken as admitted.
Estoppel Article 114: The word “estoppel” means the rule of evidence or doctrine of law which
precludes a person from denying the truth of some statement formerly made by him, or the
existence of facts which he has by words or conduct led others to believe in. If a person by a
representation induces another to change his position on the faith of it, he cannot afterwards deny
the truth of his representation.

There are three ingredients of estoppel such as:

1. Misrepresentation, e.g., the material in contract is trust worthy but actually it is not as such.

2. Other party believes him, e.g., other party makes an agreement believing on the statement of
promisor which actually is misrepresentation.

3. Acts upon it, e.g., party gives to others token money to form contract.

Later the person who misrepresents alienates the property to its legatees by way of inheritance;
he can be stopped to do so. He cannot say that property did not belong to me. He shall be
estoppel to do so.

Proceedings against misrepresentation can also be lodged either in civil or criminal courts. For
the purpose of claiming damages, proceedings can be initiated in civil court, but for the purpose
of punishment proceedings can be get started in criminal court.

Where no person believes in misrepresentation thus does not act upon it, it does not binding on
party to estop other party.

Estoppel of tenant and of licensee of person in possession Article 115: Where tenant gets the
possession of property with the permission of its ostensible owner, tenant cannot, later on, deny
the truth of being his ownership. Tenant shall be estopped to deny the truth.

When the relation of landlord and tenant is once established, the estoppel will attach to all who
may succeed the tenant, immediately or remotely.

Where one tenant comes under licence of the owner, his successor cannot deny the truth of
ownership of the landlord.

Estoppel of acceptor of bill of exchange, bailee, or licensee Article 116: This Article deals
with three more estoppels by agreement. These are:

1. The acceptor of a Bill of Exchange is precluded from denying the authority of the drawer to
draw the bill or endorses.

2. A bailee is estopped from denying that his bailor had, as the time the bailment was made
authority to make it.

3. A licensee is estopped from denying the title of the licensor to grant the license.
1. Meaning of estoppel: s

2. Principles: s

a) Misrepresentation: s

b) Act upon it: s

c) Immediate cause: s

d) Unawareness of real facts: s

e) Belief of other party: s

f) Intention: To make belief.

3. Objects: s

a) To prevent fraud: s

b) To prevent from litigation: s

c) For speedy justice: s

4. Where no estoppel: s

a) In criminal cases: s

b) In parliamentary laws: s

c) Opinion: s

d) Corporation/companies: s

5. How estoppel: s

a) By Court: s

b) By deed: s

c) By conduct: s

Burden of proof Article 117: When any party wants to take decision in his favour requires
proving facts in issue in his favour. Mere presentation of suit or case in court is insufficient to get
remedy. Material evidence is required to prove the facts in issue.

For example, a person has acquired property can prove his ownership either by way of
inheritance or sale deed.
One who imposes allegations, i.e., plaintiff or prosecution must prove his suit or case. One who
alleges must prove his claim.

Who prays to impose death penalty to murderer must prove the fact of murder committed by
such alleged person. Where there is no murder, there is no death penalty and in the same manner
where there is murder but there is no proof against accused, there is no death penalty. Facts
alleged must support the commission of offence.

In civil litigation, plaintiff and in criminal trial, prosecutor, has to prove facts through evidence
so that court may reach on conclusion beyond any reasonable doubt in their favour for
judgement.

On whom burden of proof lies Article 118: Article 118 of Qanun-e-Shahdat Order gives test
whether who has to prove the case. Where both sides fail to adduce evidence in their favour, then
party who alleges shall be responsible to give evidence. Where neither plaintiff nor defendant
may prove their case then one who fails shall prove the facts, e.g., plaintiff or prosecutor.

As a matter of principle, originator is bound by law to adduce evidence to prove facts in issue.
This Article lays down a test for ascertaining on which side the burden of proof lies. The Article
makes it clear that the initial onus is on the plaintiff. If he discharges that onus and makes out a
case, which entitles him to relief, the onus shifts on to the defendant to prove those
circumstances, if any, which would disentitle the plaintiff to the same.

Burden of proof as to particular fact Article 119: This Article deals with the plea of Alibi
(proof of absence). Where in criminal case, a murder takes place during of period of
imprisonment of alleged accused, such accused can take plea of alibi being not present at the
seen of occurrence. Burden of proof lies on the shoulders who alleges the fact of being absent,
i.e., plea of alibi.

Where presence of accused is impossible, case cannot be made out thus he is acquitted. Accused
has to prove whether it was impossible for him to keep his presence at the place of alleged
occurrence. Mere plea of alibi is insufficient, but strong proof is required to belief of court.

As a matter of principle anybody is presumed before court being innocent unless his guilt is
proved beyond any reasonable doubt. Where stolen goods are recovered from the custody of
someone, it is presumed either he has stolen or received stolen goods. He is required to prove his
innocence.

Condition for plea of alibi under Articles of 24(2) and 119:

1. Must be criminal charge:

2. Impossible to reach:

3. Time distance:

4. Presence out of place:

5. Only in criminal cases:

Burden of proving fact to be proved to make evidence admissible Article 120: Where any
fact is dependent on other fact, that fact must be proved before proving the actual fact.

For example, where anybody wants to adduce secondary evidence has to prove the loss of
primary evidence and not available. Where dying declaration has to be proved, firstly death of
the person has to be proved. In short, proof of dependent fact opens the door for court to believe
in the actual fact.

Value of dying declaration – whether conviction can be based on it:

1. Definition:

2. Essentials of admittance:

a) Death of maker:

b) Recording in its actual words:

c) Circumstances of death: That must be direct consequences of death.

d) Death itself is fact in issue:

e) Declaration must be complete:

f) Must be corroborated:

g) Must be taken as a whole:

h) Must be complete:

i) Must be clear:

3. Modes of recording dying declaration:

a) Written:

b) Oral:

c) Signals:

4. Evidentiary value: It is as good as actual evidence is.

Burden of proving that case of accused comes within exceptions Article 121: Who alleges
the commission of crime under grave and sudden provocation must prove the existence of such
circumstances.
Where any person alleges commission of offence comes under exceptions provided under
Pakistan Penal Code and any other special law, he has to prove that his act comes under such
exceptions.

Burden of proving fact especially within knowledge Article 122: When a person does any act
under special knowledge, he has to prove such fact. This is exception to this general rule that
burden of proof lies on the party who asserts the affirmative of the issue.

Where a passenger is charged travelling without ticket in railway, he has to prove whether he had
bought the ticket.

Burden of proving death of person known to have been alive within thirty years Article
123: A person who has been seen within last thirty years alive is presumed alive unless it is
proved that he has been died. If his death is alleged, it requires its proof other court shall draw
presumption that he is alive.

Burden of proving that person is alive who has not been heard of for seven years Article
124: This Article is related with the special knowledge of relatives or some special persons.
Where a person is not seen or heard within last seven years by the blood relatives or friends, it is
presumed that he has been died. Otherwise his alive is to be proved.

Burden of proof of as to relationship in the cases of partners, landlord and tenant,

principal and agent, Article 125: Where existence of some special relationships is proved,
presumption goes in its favour, otherwise their non-existence is to be proved. And burden of
proof lies on the person who alleges it.

Burden of proof as to ownership Article 126: Person who has possession of anything is
presumed its ownership. One who denies such ownership has to prove such fact.

Proof of good faith in transaction where one party is in relation of active confidence Article
127: There are always two parties in agreement. Party who has upper hand is required to prove
the fact alleged against him. This is depart from general rule of evidence. This comes only in
fiduciary relationship.

Birth during marriage conclusive proof of legitimacy Article 128: When the child is born
after six lunar (of the moon) months while the wedlock and husband does not denounce his
legitimacy, it shall be presumed that such child is legitimate.

There are two types of presumptions, i.e., presumption of law (ir-rebut-able) and fact (rebut-
able).

Under the old law of Evidence, where child was born after marriage, even after a week, was
presumed legitimate provided husband does not denounce his legitimacy. This was rebut-able
presumption of fact.
According to current Qanun-e-Shahdat Order, a child is presumed legitimate if he borns at least
after six month of the solemnization of marriage provided husband does not denounce his
legitimacy. This is also rebut-able presumption fact.

Where child is born after dissolution of marriage within two years provided mother remains
unmarried, it shall be presumed that such child is legitimate.

Pregnancy can be determined within a month when husband dies; therefore, question as to
legitimacy does not arise.

Where husband disowns the legitimacy of child, then it shall be required to prove legitimacy of
child.

Court may presume existence of certain facts Article 129: In certain cases, there is no need of
evidence and court draws it opinion automatically. In such cases court draw adverse inference.

Where goods are recovered from possession of one person soon after theft, court shall presume
that he either has stolen goods or received stolen property.

Approver is unworthy of credit unless his evidence is corroborated from some independent
sources.

Judge to decide as to admissibility of evidence Article 131: Anything, which is to be proved,

must be relevant. Anything, which can effect the proceeding, is relevant. Judge can ask question
as to get satisfaction whether fact on which evidence is to be adduced is relevant. When Judge
satisfies, then he gives permission for the evidence.

Where one evidence is dependent on another fact or document, that must be proved first before
going into further evidence. Where original document is not available to produce in court in
evidence to prove the fact, party is obliged to satisfy court as to its damage. Where court is
satisfied that original document is not available due to reasons certain, then courts permit
secondary evidence.

Examination-in-chief, etc., Article 132: This Article defines the three important terms of
evidence such as:

Examination-in-chief: This is the party who produces the witnesses in court and asks questions
from her witnesses.

Cross-examination: It is the opposite party who asks questions from the witnesses of adverse
party. It must be directly relevant to the case.

Re-examination: It is last possibly order of examination of witnesses by its own party with the
permission of court.
Cross-examination of person called to produce a document Article 134: Where person is not
called as witness, he cannot be cross-examined. Mere courier who produces the document in
court is not witness. However, if he is called as witness, then he can be cross-examined.

Where a party examined no witnesses but only certain documents were tendered and exhibited
without any objection, question of cross-examination would not arise.

Witness to character Article 135: Character is immaterial in civil litigations but it is so much
important in criminal cases.

The use of character evidence is to assist the court in estimating the value of the evidence
brought against the accused. It is observed in a case that “a man is not born a knave; there must
be time to make him so; nor is he presently discovered after he becomes one. A man may be
reputed an able man this year, and yet be a beggar the next; it is a misfortune that happens to
many men, his former reputation will signify nothing to him upon this occasion.”

Leading questions Article 136: This Article merely defines the leading question. Leading
question is a question under which answer of the question is provided. Party putting questions
suggests answers.

Person to whom questions are asked understands easily that what answer he has to give.
Normally form of leading question is objective, whether negative or affirmative.

When leading questions must not be asked Article 137: Party is not allowed to ask leading
questions either in examination or re-examination.

Examples of leading questions: Following are some examples of leading questions:

1. Did you see A strike B?

2. You were present at the time of occurrence?

3. Murder was taken place with pistol?

4. Resistance was not made?

Only court can permit to ask leading questions. Party cannot cross-examine the witnesses who
produce him except in a single case where court declares witnesses as hostile under Article 150.

When leading questions may be asked Article 138: Only adverse party can put leading
questions during cross-examination.

Under Article 150, examination-in-chief can ask leading question where court declares a witness
hostile.

Object of leading questions: The reason why leading questions are allowed to be put to an
adverse witness in cross examination is that the purpose of a cross examination being to test the
accuracy, credibility, and general value of the evidence given, and to fit the facts already stated
by the witness. It sometimes becomes necessary for a part to put leading questions in order to
elicit facts in support of his case, even though the facts so elicited my be entirely unconnected
with facts testified to in an examination in chief. Where a general order is made that no leading
question shall be allowed in cross-examination, the order is illegal and vitiates the trial.

Evidence as to matters in writing Article 139: Oral evidence can be give as to the matters who
were written. Where adverse party objects, then original documents shall be produced in court to
prove the contents of the oral evidence.

Cross-examination as to previous statements to writing Article 140: Previous statements in

criminal cases such as First Information Report or statements u/s 161 of Code of Criminal
Procedure can be cross examined. Police records statement u/s 161, which can be given to the
advocate of accused for cross-examination. These statements can be proved false.

Questions lawful in cross examination Article 141: When evidence is given then person is
cross-examined. Only relevant questions are allowed to ask. Character can be impeached.
Standard of life, income, or character can be discussed.

This is also provided under Article 151. It objects to find out truthfulness, accuracy, source of
knowledge, and his memory. What is his social status? Whether he sell heroine or wine.

When witness to be compelled to answer Article 142: Witness can be compelled to answer the
questions, which directly criminate him. Witness is protected under Article 15 that he shall not
be arrested or criminated on the ground of answer in evidence.

Court to decide when question shall be asked and when witness compelled to answer
Article 143: Where court thinks fit to compel a witness to give answer compulsorily may
compel witness to give answer. On the base of his evidence, witness cannot be arrested or civil
or criminal proceedings cannot be started. He is protected from any criminate. Where court feels
better that answering of the questions is not directly related to proceedings or unnecessarily
impeaches the character of the witness, may warn witness not to answer the questions.

Court has to regard the following things during cross-examination:

1. Where questioning does not effect the decision of court, court shall no interfere in
examination, provided questions are proper.

2. Where questions are irrelevant, court may want witness not to answer the questions. Court
may also disallow such type of questions.

3. Where stock witness is proved who are readily available to testify the facts, court may refuse
their evidence.

4. Litigation must be concluded. Where question either is improper or too remote, court may
disallow.
Question not to be asked without reasonable grounds Article 144: Where attack is made on
credit, question cannot be asked without reasonable ground.

All questions should be relevant and merely insult is not allowed. Credibility can be attacked but
on reasonable grounds.

Procedure of court in case of question being asked without reasonable grounds Article 145:
Although attack on credit or character is allowed in examination but it must bear reasonable
grounds and it should not be baseless.

Where any advocate asks questions having no proper grounds or merely based on insult, court
may report of such matter to High Court or any other authority to which advocate is subject, i.e.,
Punjab Bar Council or Pakistan Bar Council.

Indecent and scandalous question Article 146: Court monitors the proceedings. Indecent and
scandalous question are not allowed. Where they are put, court can forbid putting them.

Procedure of court in cases of defamation, libel and slander Article 147: Where proceedings
are under litigation or trial as to the defamation either libel or slander, court shall not allow
impeachment of character unless two things are determined first, that is:

1. Whether defamation has been committed.

2. Whether defamation committed is true.

Questions should not be insulting type. Only relevant questions are allowed.

Questions intended to insult or annoy Article 148: Court has power to forbid to ask any
question which either is irrelevant and which unnecessarily injures the character of person.

Exclusion of evidence to contradict answers to questions testing veracity Article 149: When
a witness deposes to facts, which are relevant, evidence maybe given in contradiction of what he
has stated. But when what he deposes to effects only his credit, no evidence to contradict him
can be led for the sole purpose of shaking his credit by injuring his character. However, a witness
answering falsely can be proceeded against for giving false evidence under S. 193 of the Pakistan
Penal Code.

The object of the Article is to prevent trials being spun out (continued) to an unreasonable
length.

Checks on unfettered powers of cross examination under Articles 143 to 149:

1. Court can compel:

2. Only on reasonable grounds:

3. Report to High Court:

4. Cancellation of license:

5. Forbid to ask question:

6. Forbid to give answer:

7. Record of finding where defamation:

8. Insulting question are not allowed:

9. Annoying not allowed:

10. Legitimate limits:

11. Stop cross examination:

12. Stop repetition:

13. Stop long question:

14. Privileged questions:

Question by party to his own witness Article 150: Where a party calling a witness and
examining him discovers that he is either hostile or unwilling to answer questions put to him, he
can obtain permission of the court to put question to him by way of cross examination.

Object to bring witness in court is to prove vindication of the party and where witness deviates
and makes collusion with adverse party, party can take plea of its hostility. Only court may
declare witness of examination-in-chief as hostile.

Hostile witness: A “hostile witness” is one who from the manner in which he gives evidence
shows he is not desirous of tellingly the truth to the court. A witness who is unfavorable is not
necessarily hostile. A witness who is gained over by the opposite party is a hostile witness.

Impeaching credit of witness Article 151: This Article only prescribes that as to how credit of
a witness can be impeached. Following are the rules:

1. Witnesses: Witnesses may be produced to impeach the credit of the witness under
proceedings.

2. Bribe: By proof of bribe or other corrupt inducement.

3. Contradiction of statements: By contradicting the statements particularly u/s 161 of the

Code of Criminal Procedure under which police records statements of the witnesses.

4. General immoral character: By general immoral character, character of the witness can be
proved unworthy or credit.
Questions tending to corroborate evidence of relevant fact admissible Article 152: Person
who is giving evidence of corroboration can be asked question which are though not relevant but
can assist to reach on truth. Questions can be asked about the extra incidents, e.g., stay in hotel
before committing robbery or murder, repair of vehicle before dacoity etc.

Manager of the hotel can give evidence that accused stayed at his hotel before commission of the
offence and he took meal. Accused was suspicious at that time.

Owner of type shop can give evidence that he did repair puncture before commission of the
offence and accused was suspicious at that time.

These facts are though irrelevant but can assist court to conclude the proceedings.

Former statements of witness may be proved to corroborate latter testimony as to same

fact Article 153: Where witnesses have given the statements in any former incident to the
authority competent, can be used again to prove fact.

What matters may be proved in connection with proved statement relevant under Article
46 & 47, Article 154: All matters are proved where any statement is proved under Article 46 &
47 which is related with hearsay evidence.

Refreshing memory Article 155: It is permissible under Qanun-e-Shahdat Order that written
statement can refresh memory. Permission of court is obligatory. Witness can refresh his
memory before giving evidence. Statement must be written. Where articles are stolen and details
of them is written soon after occurrence is admissible for refreshing the memory. Witness may
say let me refresh memory before giving evidence. It is presumed that he has written the detail
soon after occurrence and it is correct.

He also may take plea that original document is out of my reach at the moment because the
person occupying such statement has left the country.

Expert may also consult his statement in writing to refresh memory before giving evidence.

Testimony to facts stated in document mentioned in Article 155, Article 156: Where any
expert has forgotten his write up, he can refresh his memory.

Right of adverse party as to writing used to refresh memory Article 157: When party
refreshes memory from document, adverse party may inspect such document for the purposes of
cross-examination.

It can be objected whether detail was written, document was written one year before, from where
document was taken, from where paper was obtained, or whether removed from copy. What was
the writing medium whether ball pen or fountain pen. What was the colour of ink whether black
or red. Whether paper was lined or not.

1. What is refresh of memory: s

2. How refresh memory: s

a) By reference of documents: s

b) By any writing: s

c) Copy: s

d) Counterpart: s

3. Who can refresh memory: s

4. Right of adverse party: s

a) As production of document: s

b) To inspect document: s

c) Cross examination: s

5. How documents examination – questions: s

a) When document was written: s

b) From where paper was taken: s

c) Whether paper was lined: s

d) What was time of recording: s

e) Where was recording with respect of place: s

f) Medium of recording: Whether ball pen was used.

g) Colour of ink: s

Production of documents Article 158: Where court orders for the production of document in
court in evidence, it must be produced in court. Secret of state is not ground to disobey orders of
the court. Court has to decide all the objections.

Translator is also under obligation to keep the contents of the document hidden so translated if
they relate to state secret.

Giving, as evidence, of document called for and produced on notice Article 159: Where a
party to a suit gives notice to the other party to produce a document, and when produced, he
inspects the same, he is bound to give it as evidence if the other party requires him to do so.

Using as evidence, of document production of which was refused on notice Article 160:
Where party fails to produce document on the notice of court, later on such document cannot be
produced. Its subsequent production is subject to the permission of either court or party.
Secondary evidence when admitted it excludes the production of primary evidence. This is
departing of general rule.

Judge’s power to put questions or orders production Article 161: During the trial Judge can
put questions at to ascertain truth. Party cannot refuse to answer the question of Judge. Cross-
examination is subject to the permission of Court. Form to put question is right of Court. Court
may at any time put question. Court may put question to any witness. Court may also put
question about any fact.

Limitation of Court: Court cannot ask privileged questions. Questions bearing insult of party or
witness cannot be asked. Legal requirement cannot be forgone. Judge cannot bypass legal
requirements.

No new trial for improper admission or rejection of evidence Article 162: Where Court
commits any mistake in trial or litigation on record, it cannot be made ground for new trial
provided it does not effect the decision of Court. Where mistake is removed without effecting the
Court decision or its non-removal does not effect the decision, it shall not be made ground for
new trial.

Judgement based on improper evidence (which does not fulfill the requirement of court) cannot
be retried for new judgement if it cannot be changed. But if judgement can be changed then case
can be retried.

1. Base of decision:

a) Evidence:

b) Proper evidence:

c) Proper trial:

d) Examination:

e) Jurisdiction:

2. Where no proper evidence is admitted or rejected: Following the law for the retrial of
denial of new trial:

a) No base of retrial:

b) Where is new trial:

i) If it effects decision:

ii) Where mistake is substantive:

iii) Where removal of mistake effects charges:

Acceptance or denial of claim on oath Article 163: This Article is applicable only in civil
suits. Where plaintiff takes oath in support of his claim, Court may call defendant to deny the
facts. Where defendant fails to deny the fact, he is declared guilty. Decision is given against
defendant.

It is not applicable in Huddod or criminal cases.

Production of evidence that has become available because of modern devices, etc. Article
164: Court may consider modern devices in evidence.

Order to override other laws Article 165: This law has superiority on all the laws enforced for
the time being.

Repeal Article 166: The Evidence Act, 1872 (I of 1872) is hereby repealed.

Kinds of evidences: Following are the kinds:

1. Judicial:

2. Extra judicial: Intermediaries make it.

3. Real:

4. Personal:

5. Primary:

6. Secondary:

7. Direct:

8. Circumstantial:

9. Oral:

10. Documentary:

11. Hearsay:

Identification parade: Following are its rules:

1. Definition:

2. When conducted:

a) Where person is unknown:

b) Immediate:
 c) Only in presence of Magistrate:

d) In jail only:

3. Conditions:

a) Presence of Magistrate:

b) More than one accused:

c) Similar face:

d) One witness in one time:

e) Part of offence is stated:

f) Writing by Magistrate:

g) Identification of offender:

4. Value:

a) No value:

b) Corroboration is required:

Difference between admission and confession: Following are the differences:

1. Definitions:

a) Admission:

b) Confession:

2. Distinctions:

a) Cases:

i) Admission: It is used generally in civil cases.

ii) Confession: This term is specifically used in criminal cases.

b) In all cases:

i) Admission: It is not confession.

ii) Confession: But it is admission in some cases particularly where confession is

retracted.
c) Result:

i) Admission: It admits rights of others.

ii) Confession: It is admission of guilt of self.

d) Conclusive proof:

i) Admission: It is not conclusive proof.

ii) Confession: It is conclusive proof as far as law is concerned on confession.

e) Recording:

i) Admission: It may not be voluntary.

ii) Confession: It is always voluntary. Where is coercion, it is not accepted.

f) Base of conviction:

i) Admission: It is not base of conviction.

ii) Confession: Law on confession is very clear and punishment can be imposed but it
must be corroborated from some independent sources according to unanimous
decisions of higher courts.

g) Used under exception:

i) Admission: It can be used under Article 34.

ii) Confession: It is used only its maker/confessor.

h) Against others:

i) Admission: It cannot be used against other.

ii) Confession: Yes it can be used against other as corroboratory evidence.

i) Estoppel:

i) Admission: Law of estoppel is applicable in admission.

ii) Confession: Since the question of life and death is involved therefore it can be
retracted.

j) Before police:

i) Admission: Can be made before Police Officer.

 ii) Confession: Confession made before Police Officer is not acceptable at all unless
some weapon of offence is discovered.

k) By whom:

i) Admission: It can be made some agent also.

ii) Confession: Only accused can make confession.

l) Value in evidence:

i) Admission: It is not strong evidence.

ii) Confession: Yes, it is strong evidence against its maker.

m) Term:

i) Admission: It is broader term.

ii) Confession: It is narrower term.

What is difference between Article 16 and 129(b):

1. Who is accomplice:

2. Competency as witness under Article 16:

3. Unworthy of credit under Article 129(b):

4. Conviction based upon evidence of accomplice:

5. Corroboration is required: It is decision of higher courts.

6. Why corroboration is required:

a) Shifting of guilt:

b) Pardon:

c) Disregard of oath:

d) Possibility of involvement of innocent:

e) Undue influence of prosecution:

7. In hudood cases:

a) No evidence of accomplice:
 b) No conviction:

c) No corroboration:

Where non-relevancy becomes relevancy under Article 24:

1. Facts which determine damages:

2. Where custom is in question: Deed in which rights are created.

3. Particular instance in which right is claimed: Like mortgage.

4. Facts showing existence state of mine: Knowledge, good faith, bas faith, negligence, ill
will are instances.

5. Act forming part of series: Purchase of car for accident, chasing of victim, accident,
showing otherwise etc.

6. Existence of course of business: Where letter is posted in post box during working hours
shall be presumed that is has be posted and reached to the addressee because it is not reached
back.

7. Please of alibi:

Ingredients of valid custom: Following are the ingredients of valid custom:

1. Ancient:

2. Continue and uniform:

3. Reasonableness:

4. Certain:

5. Compulsory:

6. Peaceable:

7. Consistent:

Relevant judgement under Articles 54 to 58: Following the judgement which can be used as
convulsive proof in another case:

1. Double jeopardy u/s 403 CrPC:

2. Judgement in rem under Article 55:

3. Decree of probate:
4. Matrimonial:

5. Admiralty:

6. Insolvency:

7. Legal character:

8. Exceptions:

a) Which is obtained through fraud:

b) Adverse:

c) Want of jurisdiction:

All relevant facts are not admissible but all admissible facts are relevant:

1. Repayment of loan by cheque: Where property is purchased by the amount of cheque, can
be produced as evidence of repayment of loan.

2. Murder: Stay in hotel before commission of offence of murder can be produced as evidence
where Court admits it.

3. Opinion of expert:

4. Conditions:

a) Matter of transaction:

b) Constitution of crime:

c) Purchase of offence weapon:

d) Purchase of vehicle for accident:

e) Direct effect:

f) Conspiracy:

g) Character in criminal cases:

h) Amount of damages:

Modes of proving handwriting under Articles 61, 78, 84, and 164:

1. By writing himself:

2. By calling witnesses:
3. By expert:

4. By comparison:

5. By acquittance:

6. By self harming admission:

7. By statement of deceased:

8. By circumstantial evidence:

a) Thirty years’ old document:

b) Thirty years’ attested copy:

c) Official custody:

d) Legitimate custody:

9. By modern devices:

10. Execution of document:

11. Where opposite party refused despite order of Court:

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