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LLB Notes Part 3

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CODE OF CRIMINAL PROCEDURE (CR.PC)

MEDICAL JURISPRUDENCE

Lecturer: Mobushar Iqbal Chohan

Advocate High Court

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“I am very thankful to my almighty ALLAH for giving me such a courage, success and honor. I am also
very thankful to all the students who appreciated my work and received them warmly. In these
notes the law has been elaborated with the help of landmark judgments which is delivered by the
Hon’ble Courts and has been written for the examination point of view and i hope that these notes
will also be received warmly by the students and may led to the success in the examination as well
as in their profession.

The below-given notes prepared for the students of the LLB. The subject is very technical, and i have
taken every step to ensure that these notes may fulfill the need of the students, but there may be
some shortcomings or flaws in it, so every suggestion for the improvement of these notes will be
warmly welcome.”

I Am Very Thankful To You All

Your Well Wisher

Lecturer: Mobushar Iqbal

ADVOCATE HIGH COURT

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Q. 1: Confession

1. PREFACE
Confession is an exception to the general rule “that hearsay evidence is no evidence.” The
concept of confession has been derived from Christianity where people went to the Pope
and acknowledge their guilt in front of him.

2. Relay Section
164, 364, 533 CR.PC

37 to 43 QSO

3. Applicable OF Confession
Qanun-e-Shahadat Order 1984 provides for three different kinds of Articles:

Exclusively applicable to Criminal Cases.

For example: confession.

Exclusively applicable to Civil Cases.

For example: Admission

Those applicable to both.

For example: Relevancy of facts

Examination of witnesses.

4. LEXICAL MEANINGS OF CONFESSION

Confession is a oral or written statement in which a person say that he have done
something wrong or committed a crime,

Law Dictionary
The act of telling person something that makes he embarrassed ashamed, etc.

5. DEFINITION OF CONFESSION
An act of confession, especially a disclosure of one's sins in the sacrament of reconciliation

6. REQUIREMENTS OF CONFESSION
In person
Voluntarily

Without influence

Free of hand cuff

7. THEORY OF CONFESION
Theory of confession is base to about ownself express own crime or illegal act

8. BASIS OF CONFESSION
The presumption of truth attaching to the incriminating statement made by an accused
person is based upon the sentiment of mankind that a person will not as a general rule
make statements against himself unless they are true.

9. KINDS OF CINFESSION
Main kinds:
i. Judicial Confession

ii. Extra judicial Confession

Other kinds:
i. Inculpatory

ii. Confession

iii. Exculpatory Confession

iv. Retracted Confession

EXLPANATION OF KINDS

10. PROCEDURE FOR RECORDING CONFESSION

I. When to be recorded
i. During the course of investigation

ii. After the filing of FIR u/s 154Cr.P.C

iii. Before challan u/s 173

II. FORMALITIES TO BE OBSERVED

i. Handcuffs should be removed.

ii. Police should be sent out of the courtroom

iii. Accused be given time to ponder.

III. INFORMATION TO BE GIVEG TO THE ACCUSED.

The Magistrate recording the confession must explain or inform to the person making the
confession

i. That he is not bound to make a confession

ii. If he makes it, it will be used against him in evidence

iii. That whether he makes a confession or not he will be sent back to the police custody.

IV. QUESTIONS PUT TO THE ACCUSED PERSON BEFORE RECORDING

CONFESSION.
The following questions to be put to the accused before recording confession.

i. How long have you been with the police?

ii. Has any inducement been given to you?

iii. Have you been threatened to make a confession?

iv. Has any pressure been put on you to make a confession?

v. Have you been told that you will be made an approver?

vi. Why are you making this confession?

vii. Have you consulted your relatives or lawyer?

11. Satisfy Of Majistrate

The Magistrate should satisfy himself that the confession is being made voluntarily and then
record it.

Judicial confession not recorded according to High Court Rules & order, Volume-III Chapter-
XIII, such confession ruled out of consideration.

I. HOW RECORDED.
Judicial confession must be recorded in the manner provided by Section-364 Cr.P.C.

II. CONSEQUENCES OF DELAY IN RECORDING THE CONFESSION

Where there was an unexplained delay of more then 24-hours in recording the confession
such confession excluded from consideration.
12. ADMISSIBILITY OF CONFESSION

Relay Article
Article 37,41, 42

Article 37
Confession caused by inducement, threat or promise is irrelevant in Criminal proceedings

Article 41
Confession made after removal of impression caused by inducement; threat or promise is
relevant.

Article 42
Unlike admission in Civil cases confession which is otherwise relevant does not become
irrelevant merely because it is made under promise of secrecy or deception practiced on the
accused person for the purpose of obtaining it, or when he was drunk etc.

13. EXPLANATION
A confession, which falls within the mischief of Art, 37 are inadmissible in evidence.

In order to attract the provisions of Art. 37, the following facts need to be established.

That the accused person has made the confession in authority.

That it must appear to the court that the confession has been obtained by reason of any

i. Inducement

ii. Threat

iii. Promise

14. Proceeding from a person in authority.

That the inducement threat or promise must have been with reference to the charge
against the accused person.

The inducement threat or promise must in the opinion of the court be such that it would
appear to the court that the accused in making the confession believed or supposed that he
would by making it gain any advantage or avoid any evil of temporal nature in reference to
the proceedings against him.

I. INDUCEMENT
Where accused when making the confession was entreating and praying to the court as well
as to the officer concerned to be forgiven. Statement of the accused indicated inducement
and could not be taken as admission of guilt.
II. THREAT.
AIR 1967 Manipur, 11

Confessions obtained from slaves under the whip or a threat of the whip have usually been
excluded, upon the circumstances of the case presented.

III. PROMISE
PLD 1972 Kar, 292 (DB)

Promise of being made approver held is sufficient inducement to obtain confession, such
confession is inadmissible.

15. REMOVAL OF IMPRESSION CAUSES BY INDUCEMENT THREAT OR

PROMISE.
AIR 1959 Modh par. 17

When once the existence of improper inducement, threat or promise has been established
so as to bring the case within the provisions of Art 37, there is a presumption of its
continuance, and the prosecution has to prove that the impression caused by the original
inducement, threat or promise was fully removed when the accused made the confession.

I. ESSENTIAL
IMPRESSION MUST BE FULLY REMOVED

AIR 1949 Madh Par. 17

The word “fully” in Art-41 means “thoroughly” “ completely” “entirely”, so as not to leave
any trace of the impression created by the torture or fear, for a confession forced from the
mind by the flattery or hope or by torture or fear comes in so questionable a shape that no
credit can be given to it. A free and voluntary confession is presumed to flow from the
strongest sense of guilt and therefore, it is admitted as proof of crime.

II. CONFESSION WHEN NOT ADMISSIBLE.

i. Confession recorded by a Magistrate without confirming to the mandatory provisions of
Section 164 or 364 of The Code of Criminal Procedure is inadmissible in evidence.

ii. Confession caused by inducement, threat or promise under Art. 37

iii. Confession before police officer is not admissible under Art. 38

iv. Confession made by a person in police custody, which is not made in the immediate
presence of a Magistrate under Art.39
16. EVIDENTIARY VALUE OF CONFESSION
1. Best evidence as against the maker (PLD 1964 SC 813)

2. Sole base of conviction (1998 MLD 94 (FSC)

3. Weakest kind of evidence (1999 PCrLJ 831)

4. Corroborative piece of evidence. (1996 PCrLJ 1621 (DB)

17. PRECLUDE REMARKS

Q. 2: Bail

1. Preface

PLD 2003 Kar 526

Held:

“A court considering a bail application has to tentatively look to the facts & circumstances of
the case & once fact & circumstances of the case & once It comes to the Preclude Remarks
that no reasonable ground exists for believing that the accused has committed a non bail
able offence it has the discretion to release the accused on bail”

2. RELAY PROVISION:

a. Sec: 496-502 The Code of Criminal Procedure 1898

b. Ch:10 Vol: III ,High Court Rules & Orders

3. HISTORICAL PERSPECTIVE OF BAIL:

The concept of bail emerges from the conflict between the police power to restrict the
liberty of a man who is alleged to have committed a crime it has a long history and deep
routs in English & American law, prisoners were bailed or delivered to reputable third
parties of their own choosing the law of bail being not static grew all the time molding itself
with exigencies of time

4. BAIL –DERIVATION TERM:

Bail bail
Latin word French word

Bajulare Billier

To bear a burden give or deliver

5. MEANING OF BAIL:

A. Black’s Law Dictionary:

“Release of a person from custody of law”

B. Case Law Meaning:

PLD 1998 S.C 1

“Ratio Decidendi”

“The basic concept of bail in release of a person from the custody of police & delivery into
the hands of sureties, who undertake to produce him in court whenever required to do so”

6. CLASSIFICATION OF BAIL:

a. As to nature of offence:

Bail

Bail able Non- Bail

Offence able Offence
b. As to Arrest:

Bail

Before After
Arrest Arrest

7. GRANT OF BAIL:

a. Magistrate Power to Grant

i. In offences up to three years imprisonment magistrate 1st class can

grant bail

ii. In offences from 3-10 years of imprisonment sec:30 magistrate can

grant bail.

b. Power of High Court:

In case of more than 10 years imprisonment or death penalty session court, High Court &
the Supreme Court can grant bail.

c. Bail by Police:

If a person is arrest by police in bail able offence the investigating offence can enlarge or
discharge him on bail or under a special order of magistrate.

d. Bail and Bail Bond:

Person arrested may also be discharged by police on his own bond
8. WHEN BAIL MAY BE GRANTED:

Bail

Before Arrest or
After Arrest
Pre Arrest Bail

9. BAIL BEFORE ARREST:

i. Meaning of Arrest:

Apprehension or actual restraint or deprivation or one’s personal liberty

ii. Relay Provision:

Sec: 46-61 the Code of Criminal Procedure 1898

Bail

Before Arrest After Arrest

Ss. 498 Ss. 497

 Offences

Bail able Non- Bail able

iii. Bail before Arrest

a. RELEVATNT PROVISION:

a. Sec:498 The Code of Criminal Procedure 1898

b. SCOPE OF PRE- ARREST BAIL:

2003 PCrLJ 135

Ratio Decidendi:

“Pre arrest bail can only be granted if there are ulterior motives humiliation in justify
harassment & apprehension of irreparable to the reputation”

c. PRE-ARREST BAIL- ANTICIPATORY BAIL:

Sec: 398 empower session court & high court to grant pre-arrest bail in cases or exceptional
retire but such power has to be exercised when preconditions laid down by superior courts
are satisfied.

iv. CONDITIONS FOR PRE-ARREST BAIL:

PLD 1983 SC 82

Ratio Decidendi:
 a. “Arrest being for ulterior motives.

b. Prosecution motivation to cause irreparable injury

reputation & liberty.

c. Motivation of police on police on political

consideration”

10. APPROACH TO HIGH COURT:

PLD 2000 Kar 6

Ratio Decidendi:

“High court can entertain application for pre-arrest bail & grant relief to accused in
appropriate cases”

11. MAKING OF APPLICATION:

No legal bar exists to release the accused on bail without application by him. No bail
application is required under section: 496, 493 & 426 CrPC

12. NOTICE TO STATE:

No time limit is fixed for a notice to prosecution and in appropriate cases of real hardship an
application for anticipatory bail can be heard on the some day when it is filed after giving
notice to prosecution.

13. REJECTION OF APPLICATION EFFECT:

Rejection of application for pre-arrest bail does not have any bearing on bail after arrest
14. CONDITIONS FOR BAIL BEFORE ARREST:

b. That there are genuine proved apprehension of imminent arrest with the
effect of virtual restraint on the petitioner

c. That the petitioner should physically surrender to the court.

d. That on account of ulterior motives, particularly on the part of the police,

there should be apprehension of harassment and undue irreparable
humiliation by means of unjustified arrest.

e. That it should be otherwise a fit case on merits for exercise for the purpose of
bail in this behalf s 497 would be kept in mind.

f. That unless there in reasonable apprehension the sessions court for the same
relief under sec:498

g. Element of ‘malafide’ false involvement arrest with motive to humiliate &

malicious prosecution are prime consideration for bail before arrest.

h. Accused would be entitled to anticipatory bail when malice of complaint is

visible and that his only purpose is to make accused bite the dust & not to
secure ends of justice.

i. The court dealing with an application of bail before arrest in whether an

irreparable injury to the name & liberty of a citizen would result if bail is
refused.

j. Bail before arrest is not the rule in cognizable offence there are some pew
liar feathers of the case which would justify the exercise of this discretionary
power.

15. SINE QUA NON- BAIL BEFORE ARREST:

PLD 1998 SC 97

Ratio Decidendi:

“Apprehension of arrest of an accused being for ulterior motive i.e. that of humiliation &
unjustified harassment is a sine qua non for pre arrest bail”
16. SUPREME COURT RULES:

O.XXIII R.6 Supreme Court Rules 1980

Permits the Supreme Court under its inherent power to make such order as may be
necessary for the ends of justice.

17. GRANT OF PRE-AREST BAIL IN MURDER CASE:

Grant of bail before arrest is a rare phenomena & should ordinarily not be granted. More
particularly, when it is a case of circumstantial evidence.

18. CANCELLATION OF PREARREST BAIL:

1994 PCrLJ 1784

Ratio Decidendi:

“Aggrieved person competent to move for cancellation of bail”

19. REFUSAL OF BAIL:

2000 PCrLJ 284

Ratio Decidendi:

“Bail can be refused even in cases which do no not fall within prohibitory clause of S.497”

20. PRECLUDE REMARKS

Rule: 5

Bail to be granted promptly

Rule: 15
Bail application to be treated as urgent
Q. 3: ARREST WITHOUT WARRANT

1. Preface

Sec 54 the Code of Criminal Procedure

2. Relay Provision

51, 54, 55, 57, 59, 124(6), 401(3), 22-A

3. Definitions

I. Arrest

II. Arrest without warrant

4. Object

Widest powers to the Police Officer to arrest who are involved in cognizable cases and only
limitation placed is reasonability and credibility to prevent the misuse of powers.

5. Circumstances where Arrest be made

I. Involvement of person arrested in cognizable case.

II. Reasonable complaint

 III. Credible information about involvement

IV. Reasonable suspicion about his being so involved

 Arrest without warrant may be affected

I. By a police officer 54s

II. By a private person u/s 59

III. By a magistrate u/s 64

IV. By Justice of Peace u/s 22-A

6. Instances

I. Arrest by a police officer:- a reason able suspicion exists of his having been so
concerned is a cognizable offence or against whom reasonable complaint has
been filed

II. Any person in possession of any implement of house-breaking 54(1)

III. Any proclaimed offender

IV. Any person suspected to be having stolen property

V. Any person obstructing Police Officer

VI. Any person suspected of being a deserter

VII. Reasonable complaint

VIII. Requisition by other Police Officer

IX. Non cognizable offence in presence of PO

X. Any person designing committee of offence

XI. Suspension or remittance has been cancelled

7. Arrest of Vagabonds (110) and Habitual Robbers (55)

 a) Arrest by magistrate 64-65

b) Arrest by private person 59

8. Arrest without warrant u/special Acts

I. Ammunition Act 1878 (S. 12)

II. Immigration Act 1883 (12)

III. Gambling Act 1867(S. 13)

IV. Explosive Act 1889 (S13)

V. Punjab Municipal Act 1891 (S. 18 & 83)

9. Preclude Remarks
Cases where the police officer may arrest without a warrant are specified in
Schedule II, column 3 of the Code.
Q, 4: ARREST OF VEGABOND & HABITUAL OFFENDER

1. PREFACE
Section 55 of the code of criminal procedure envisages that any officer in charge of police
station may arrest or cause to be arrested any person who comes under this section without
a warrant or an order of magistrate.

2. RELAY PROVISION:
i. Section 55

ii. Section 109 to 118 the Code of Criminal Procedure

iii. Ch:23 Vol: III Part A , High Court Rules & Order

3. WHO IS A VEGABOND & HABITUAL OFFONDER:

a. Vagabond:
John Burke’s View:

“Wander or persons persistently soliciting in public places for immoral purposes”

b. Habitual Offender
High Court Rules & Orders

“Any person convicted of offence punishable under ch: XII, XVIII, XVII of Pakistan Penal
Code.

Whose previous conviction or convictions, taken in conjunction with facts of present case
show ,that he is by habit a robber, house breaker dacoit, thief or receiver of stolen property
or that he habitually commits extortion cheating, counterfeiting coin, currency notes,
stamps etc

c. Principle
“The fact that a person is a habitual offender is by itself not an offence, but he may be
arrested under this section and dealt with under security section”.
4. INTERPRETATION OF TERMS UNDER SECTION 55:
i. Officer In charge of Police Station:
Sec: 4 (P)

“office in charge of police station includes the police officer present at the station house
who is next in rank to suck officer (who is officer in charge of police station and is absent
from station house, or is unable to perform his duties) and is above that rank of constable or
when the provincial Government so directs any other police officer.

ii. In like manner :

The expression in like manner means:

A. Without an order from magistrate

b. And with out warrants

iii. Arrest or Cause to be Arrested:

PLD 1964 Dacca 618

“ A police officer can therefore arrest or cause to be arrest without a warrant any person
come under ambit of sec:55”

b. “MAY”

It is a provision option and not mandatory upon a police officer in charge of police station.

4. SCOPE OF SECTION 55:

PLD 1964 Dacca 618

“Section 55 is independent of Chap: VIII of Code Through proceeding under Ch: VIII
may follow such arrest as a natural sequence”
5. OBJECT OF SECTION 55
“This section is intended for suppression of habitual bad character that an officer in charge
of police station suddenly finds within his circle or about he has reasonable apprehension no
action under this section can be taken where allegations are vague in nature”

6. APPLICATION OF SECTION 55:

1997 MLD 2294

“Section 55 empowers an officer in charge of police station to arrest any person found
taking precautions to cancel his presence causing reasonable cognizable offence”.

i. To commit cognizable offence

ii. Any person who has no ostensible means of substance
iii. Or who cannot give satisfactory account of himself or
iv. A person who is habitual offender

7. ARREST WHEN TO BE MADE:

a. Circumstances Afford Reasons to Believe:

Sec: 55 (1) (a)

An arrest without warrant can be made only under Sec: 55 (1) (a) when there exists a reason
to believe…

i. Cognizable Offence:
It is duty of every police officer to prevent cognizable offence u/s 149

ii. Person Within Limits Of Station:

1883 All 223

“It is illegal for an officer in charge to arrest a person under this section out of limits of his
station”.
 i. Who cannot give ‘satisfactory account’ of himself in the
circumstances in which he is found

8. NATURE OF POWER:
2001 YLR 744

“Power conferred upon police officer under Sec: 54, 55 & 56 are not unbridled power vested
in public functionary to administer justice”

9. ARREST HOW MADE:

Sec: 46

PLD 1963 SC 109

“For purpose of arrest it is sufficient if arresting officer confines the body of accused persons
or touches the body of accused unless accused submits to arresting officer’s custody words
or actions”

10. EFFECT OF NON-COMPLIANCE

Sec: 55

1998 PCrLJ 1035

“Disregard of conditions laid down in Sec: 55(1) by police officer would make the arrest of
the subject illegal and police officer liable would be exposed to prosecution under penal
code”

Since its duty of every police officer to prevent cognizable offences U/S 149.

11. SECURITY UNDER SECTION 109 & 110

U/S: 109

Security for good behavior form vagrants & suspected persons:

A. Scope & application:

It must be shown u/s 109 that the person proceeded against had taken some active steps to
conceal his presence such steps are taken with a view to commit a cognizable offence

i. To conceal his presence

ii. To commit an offence

iii. Who cannot give satisfactory account for himself

B. Object of Ss. 109:

“Is to furnish the criminal designs of persons”

12. SECTION: 110

Security for good behavior from habitual offenders:

Part: C Ch: 23 VOL: III

i. Habitual Offender
Magistrate of 1st class…..
Receiving information…. Persons within his local limits of his jurisdiction

a. Magistrate may

b. Require such persons

c. To show cause why he should not be ordered to execute both

d. With securities

Purpose: for his good behavior

e. For a period

f. Not exceeding 3 years

i. Object Of sec:110

Sec: 110 is aimed at protecting society from dangerous character against preparation of
crime under substantial but not excursive security
ii. Scope Of section 110

“Section is preventive not punitive which is intended to control the activities of persons
falling in categories mentioned therein”

(1990 PCrLJ 21)

iii. Procedure:
PLD 1953 Bal: 24

a. If a magistrate of first class deems it necessary to take

action u/s 109,110 he should make an order u/s 112

b. It is mandatory provision of law the substance of

information received be embodied therein

c. A copy of order as required u/s 115 should be believer to

him when he is served with summons

d. By virtue of sec:114 he is served within summons

e. Even if the person concerned expresses his willingness to

furnish security, a proper inquiry is to be adopted in a
warrant case must be held u/s 117

f. If such inquiry magistrate is satisfied what security should

be furnished he will pass such order as he thinks fit.

g. Order as to security shall be passed u/s 118

h. The words magistrate may show it is in discretion of

magistrate to proceed or not to proceed against person.

i. Order to execute bond with securities for his good

behavior

j. For a period not exceeding 3 years, as magistrate thinks fit

to fix

iv. Order of Magistrate:

Section 112 lay down that when a magistrate acting u/s 107 to 110 deems it necessary to
require any person to show cause under such section he shall mate an order.
 a. In writing

b. Setting forth the substance of information received

c. Amount of bond to be executed

d. The learn for which it is to be enforced

e. The number, character and class of securities if any,

required

12. PRECLUDE REMARKS:

Q.5: Compoundable OFENCE
Q. What is a “compoundable offences, what is the legal effect of valid composition, how would you
differentiate between withdrawals of case & composition of offence?

1. PREFACE:

“Detailed report of Sessions Court and the statements of the heirs of the deceased had
revealed that compromise between the parties was genuine and legal and both the heirs of
the deceased had pardoned the accused waiving their right of Qisas and Diyat---Compromise
was consequently accepted and the accused were acquitted accordingly.”

2008 SCMR 1147

2. RELAY PROVISIONS:
i. Section 345 of The Code Of Criminal Procedure, 1898

ii. Rule 10-11-12 ( High Court Rules and Order ) Vol III chap 1 part H

3. COMPOUDABILITY:

Black’s law Dictionary:

Literal meaning of compound is “to compromise” and term compounding means “any
person having been directly injured by a felony agrees with the offender that he will not
prosecute him unless he makes some separation or give reward”

i. Concept of Compoudability:
(1893) 21 cal 103

“The compound ability of an offence signifies that a person against whom the offence has
been committed has received some gratification not necessarily of pecuniary character, to
act as an inducement for his desiring to obtain from prosecution and if offence be
compoundable under the provision of law composition shall have the effect of an acquittal”
4. COMPOUNDING OF OFFENCE:
i. Scope of section 345

“A composition is an arrangement or settlement between the injured party and person

against whom the complaint is made.” AIR 1921 BOM 166

ii. Requirement of section 345

The legislature has laid down in Sec 345 the test for determining the classes of offence
which concern individuals only as distinguished from those which have reference to interest
of policy to compoundable offence.

iii. COMPOUNABLE OFFENCE:

Sec 345(7)

Offences that may be lawfully compounded are those that are mentioned in section 345
offences other than those mentioned cannot be compounded.

5. INSTANCES OF OFFENCES WHICH MY BE COMPOUNDED:

Subsection (1) of section 345 enlists certain specified offences which may be compounded.

 Deliberate intent to wound the religious feelings of any person

 Wrongful restraint
 Wrongful confinement
 Assault
 Use of criminal force
 Mischief
 Criminal trespass
 House trespass
 Adultery
 Defamation
 Insult to probe breach of peace
 Criminal intimidation
All above mentioned offences may be compounded by person specified in third column of
table.

6. INSTANCE OF COMPROMISE UNDER SECTION 345(2):

The permission of court for 345(2) is mandatory

 Qatl-e-Amd
 Other kinds of Qatl
 The Hurt cases
 Wrongful confinement for three
 Wrongful confinement for more days
 Assault for wrongful confining person
 Dishonest misappropriation of property
 Cheating
 Mischief
 House trespass
 Using a false trade or property mark
 Marrying again during the lifetime of a husband or wife
 Counterfeiting

All such offences may be compounded with permission of court by persons mentioned in 3 rd
column

7. WHO CAN COMPOUND:

“It is only the person specified in section 345 who can compound the offence”

PLD 1997 SC 1260

A. In offences under section 345(1) may be compounded by person against

whom offences specified have been committed with only 1 exception.
  In case of adultery the husband of a woman may compound

b. The offences under section 345(2) may be compoundable by

i. Heirs of victim

ii. Persons against whom offence was committed

iii. Person to whom hurt is caused

iv. The person to whom loss or injury is caused

8. CONDITIONS:

i. Composition U/S 345 (1)

 “Mutual agreement to terms or conditions for the settlement of a
difference or controversy”

a. No leave of court is necessary for compounding and

b. In such cases the magistrate has no option but to allow compromise

c. Unless it appears that the parties were free from influence of every kind and
were fully aware of their respective right, it would be impossible to give effects
to such arrangement

d. Where a compromise petition duly signed by both the parties is presented to

the court by the accused it amounts to composition

ii. Compromise u/s 345(2)

A. In agreement to compound an offence falling within this sub section can only be
effected with court’s permission before which the prosecution of the case is
pending.
9. WHICH COURT MAY SANCTION COMPROMISE:
345(2)

The only court which has power under section 345(2) is the court before which the
prosecution is pending.

10. STATGES WHEN COMPROMISE MAY BE MADE:

An offence which is compoundable without permission of court may be compounded even

before filling of complaint and after that at any time before judgment is pronounced.

11. COMPOSITION AT APPELLATE STAGE:

345 (5)

Court may grant leave to compromise during the pendency of appeal and not after its final
decision. Therefore, after conviction a composition can be effected only with the leave of
the Appellate Court.

“Application of compromise was accepted by High Court and appeal filed by accused was
disposed of in terms of the compromise”. 2008 MLD 1486

12. EXERCISE OF POWER IN REVSION:

345 (5-A)

Sub section 5-A explicitly confers on the High Court and Court of Sessions, acting in its
power of revision u/s 439 and 439-A respectively to allow any person to compound offences
which may lawfully be compounded.

 Power to be exercised only during the pendency of revision and not after
the disposal of the revision.

 The High Court allowed a compromise to be made where the complainant

stated that in the interest of future good relations with the accused he
did not want to pursue the prosecution.
13. RECISSION OF COMPROMISE:
A composition once effected cannot be withdrawn. Once the composition has been made
and effected it is entirely immaterial whether the terms of compromise have been carried
out or not.

 Incase of compromise for consideration where some compensation has

already been received by the heirs, ordinarily they cannot back out form the
compromise.

 Where it is a generous act on the part of the heirs i.e. in the name of Allah,
they are at liberty to withdraw from the compromise before it is made
effective.

14. COMPOUNDING IN CASE OF MINOR:

345 (4)

Where any offence is compounded on behalf of minor, lunatic or idiot permission of court is
necessary for the composition.

15. MAJOR OFFENCES IF COMPOUNDED:

“If the main offence was compoundable and the parties had compromised, then the small
offences should be treated as compromised though under the statute the same were not
compoundable”. PLD2008KAR420

1. POINST TO BE CONSIDERED BEFORE COMPROMISE IS PERMITTED:

The fact of each case requires careful consideration before compromise is permitted in
particular the following points:

i. Whether the assault was premeditated

 ii. Whether it was provoked in any way by complainant
iii. The nature and extent of the offence
iv. Whether the compromise is the result of genuine reconciliation or caused by
pressure
v. The extent to which violent crime is prevailing in society
vi. The nature of weapon or means used.

16. LEGEL EFFECT OF COMPOSITION:

As laid down in sub sec 6 that composition of offence shall have the effect of acquittal of
that accused with whom offences have been compounded, therefore:

i. No Retrial:

A case which has once been compounded can not be reopened.

ii. Acquittal:

Where legal heirs of both deceased had forgiven the accused in name of Almighty God and
to this effect made statement on oath, accused was acquitted

iii. Prosecution for other offences:

The composition has the effect of acquittal only in respect of offence which has been
compounded and not other offences of which accused is charged

iv. Explanation:

The composition of one offence will not bar a prosecution for distinct offence

v. Composition with one of several accused:

In case of several accused the compounding of offences against one or some of them alone
does not affect the case against the other.

17. INVALID COMPROMISE – INSTANCES

Where an order of acquittal has been passed on an invalid composition it may be set aside:

i. The compromise was permitted through duress or coercion

 ii. Compromise by person not actually the legal heirs of deceased.
iii. Upon some fraud practiced upon legal heirs of deceased.

18. PRECLUDE REMARKS

The compoundability of an offence signifies that a person against whom the offence has
been committed has received some gratification not necessarily of pecuniary character, to
act as an inducement for his desiring to obtain from prosecution and if offence be
compoundable under Sec 345 composition shall have the effect of an acquittal.
Q. 6: DISPUTES AS TO IMMOVABLE PROPERTY

1. PREFACE:

2. RELAY PROVISIONS:
Ss 145 to 148 of Code of Criminal Procedure, 1898

3. LATEST AMENDMENTS:
i. Under section 145, words substituted “District Magistrate, or Sub-divisional Magistrate,
or an Executive Magistrate” by “Magistrate of the first class”

ii. Under section 146 words “District Magistrate” omitted

iii. Amendments under section 146(2), 147, 148.

4. SEC: 145-148 DISPUTES AS TO IMMOVABLE PROPERTY

LIKELY TO CAUSE BREACH OF PEACE
On information of any dispute relating to immovable property, magistrate must pass
preliminary order under sub-sec (1) and afterwards make an inquiry under sub-sec (4) for
prevention of breach of public peace in respect of dispute relating to immovable property

“If a magistrate finds in the inquiry that there is no dispute at all or it is not likely to cause
a breach of peace, he should cancel his preliminary order”.
AIR 1944 All 210

5. JURISDICTION:
Necessary elements for foundation of jurisdiction under section 145 of Cr.Pc, 1898 are that
Magistrate must be satisfied:
i. Dispute likely to cause breach of peace

ii. Dispute refers to land or boundaries

iii. Such land or water is situated within the limits of his territorial jurisdiction

iv. Jurisdiction of Magistrate is in fact transitory; he ceases to act when matter is seized by
the civil court.

ILLUSTRATION:
In case where both parties claim physical possession of the property in dispute, this section
is applicable and if the Magistrate was approached within two months of the dispute, the
possession to the rightful owner/possessor be restored by the Magistrate.

6. INGREDIENTS:
i. Dispute as to immovable property i.e. possession of landed property

ii. Must reach the Court within two months

iii. Within two months possession has been taken

iv. Right to use of land or water or boundary provided they all are likely to cause breach of
peace.

7. INITIATION OF PROCEEDINGS:
Necessary factors for the initiation of proceedings are as follows:

i. Magistrate:
The inquiry is to be by any of the Magistrate specially named. The magistrate must
act on his own initiative, and not at the instance of District Magistrate, the Sessions Judge,
or the High Court.

ii) Satisfaction of Magistrate:

Magistrate under this section can act only if he is satisfied that a dispute likely to
cause breach of peace exists.
  Either he should be satisfied from a Police Report

 Or from other Information.

iii) Police Report:

The Magistrate may act on any information, e.g. police report without
examining witnesses. The police report on which the Magistrate found the initial order
should contain a statement of facts from which he may be satisfied of the existence of a
likelihood of a breach of the peace.

iv. Dispute:
The essence and basis of the jurisdiction depends upon there being a dispute likely
to create a breach of the peace

 The Calcutta High Court has held that “Dispute” means actual disagreement
existing between the parties at the time of the proceeding even though the
question as to the right to possession has already been decided by a Civil
Court. 56 Cal 290

v. Breach of peace
It is not enough that a dispute likely to cause a breach of the peace existed but there
must be a likelihood of the breach of the peace, which likelihood must not be too remote.

 Likelihood with the consequent necessity for immediate action.

 “Order of the Magistrate clearly indicated that parties were bent upon to
breach the peace as already an occurrence had taken place for which F.I.R.
was registered---To prevent further violence or breach of the peace, the
Magistrate had passed impugned order.” 2009 YLR 211

vi. Territorial jurisdiction

The disputed land or water must be situated entirely within the local limits of the
jurisdiction of the Magistrate taking action.

vii. Preliminary order

The order need necessarily be in writing. It should be addressed to known
individuals, not be in form of public proclamation.

i) It must, set out grounds of the Magistrate’s belief.

ii) Call upon the parties concerned:

a) To attend the Court

b) To put in statements in writing showing their respective claims to possession.

8. OBJECT:
Maintenance of peace of public pertaining to disputes of immovable property. This section
is preventive in nature and not punitive. Order/direction given by the Magistrate under
section: 145 under the jurisdiction of criminal Courts are provisional and it operates until
rights are finally decided by competent civil Court if the dispute is as to the right of
ownership.

 “Prime object of proceedings under S.145, Cr.P.C. is to prevent breach of

peace and to maintain status quo till the controversy is decided by civil
Court of competent jurisdiction.” PLD 2007 SC 189

9. PROCEDURE:
Written information or police report when presented before the Magistrate, he may act on
the same if he is satisfied. Proceedings under this section constitute an inquiry within the
meaning of section 4 (1) (k).

 Proceedings under section 145 & 146 are of summary nature and they should
be disposed of as expeditiously as possible.

10. MAGISTRATES WHO ARE COMPETENT AND HAVE

JURISDICTION:
 Magistrate first class is competent to proceed under the provisions of Cr.PC.

11. NECESSARY ELEMENTS:

 There must be a dispute pertaining to land as well as apprehension to the breach of

peace.
  Magistrate will hold the inquiry of matter which was brought before him within two
months of such dispute.

 In case of urgency/emergency and the inquiry is pending before him, the Magistrate
may seal and lock the premises until final decision.

“It is mandatory requirement of S.145, Cr.P.C. that there must not only be a dispute but it
is essential that a dispute is likely to cause breach of peace”. PLD
2007 SC 189

12. COMPARISON WITH SECTION 144 & 107:

Exercise of powers under section 107 and 144 is discretionary while under section 145 it is
mandatory. Therefore whether action has been taken under section 107 or under section
144 or not the Magistrate must if the conditions as to its applicability exists, take action
under section 145 either in suppression or in continuation of the orders, if any, passed
under section 107 or section 144.

AIR 1922 Pat.435

13. INSTANCES OF DISPUTES FALLING UNDER THE SECTION:

i. Dispute relating to collection of rent in respect of immovable property

ii. Dispute relating to possession of standing crops and crops harvested but still on land,
trees growing on land, or which are cut and severed few hours/day before preliminary order
and are still lying near the land.

iii. Dispute relating to possession of a temple

iv. Dispute relating to right of fishery, mining and boring rights, channel used for irrigation
purposes.

14. INSTANCES OF DISPUTES NOT FALLING UNDER THE

SECTION:

i. Disputes of crops cut & removed from land

ii. Disputes relating to right to share in the rents and profits of immovable property

iii. Disputes relating to collection of fees from pilgrims, joint possession of immovable
property, film to be exhibited in cinema, control or management of an institution.

15. PRECLUDE REMARKS

Primary object of these provisions as enunciated under Code of Criminal Procedure is
prevention of public peace arising in respect of dispute relating to immovable property.
Q. 7: DOUBLE JEOPARDY

1. PREFACE:
For an act or omission constituting an offence under two or more
enactments, offender would be liable to be prosecuted and punished under any of those
enactments as provided by S.26 of General Clauses Act, 1897, but he could not be punished
twice for the same offence keeping in view the provisions of Art.13 of the Constitution and
S.403, Cr.P.C.---In such a ease it would be appropriate to record convictions separately and
award concurrent sentences if they were of imprisonment.

2006 PCRLJ 954

2. RELAY PROVISION:
Sec: 403 Code of Criminal Procedure

3. CROSS REFERENCE:
Sec: 11 Res judicata Code of Civil Procedure

Article 13 of the Constitution of Pakistan

Sec 26 of the General Clauses Act

4. INTERPRETATION OF THE TERM:

 Legal Meaning:

“The fact of being prosecuted or sentenced twice for substantially the same offence.”

Black’s law Dictionary

5. GENERAL RULE:
Any person once convicted or acquitted cannot be tried again for the same offence. The
judgment must be given by competent court on the same facts. Retrial cannot be held.
6. ESSENTIALS OF SEC: 403
i. Conviction or acquittal must have taken place

ii. Judgment was given by a competent court

iii. Judgment still in force

iv. Retrial cannot be held on the same facts and on the same offence

7. BASIS OF DOCTRINE OF DOUBLE JEOPARDY:

It is based on the Latin Maxim “Nemo debet bis puniri pro uno delicto”

“No one ought to be punished twice for one offense.

No one shall be placed in peril (jeopardy) of legal penalties more than once upon the same
accusation”.

8. COMMON LAW PRINCIPLE:

 Plea of Autre fois Acquit (Formerly Acquitted)

 Plea of Autre fois Convict (formerly Convicted)

Article 13 of the Constitution of has provided a constitutional guarantee for protection

against retrial and double punishment for the same offence which cannot be taken away
through a legislative measure.

9. “ESSENTIALS OF SEC 403” WHEN PLEA CAN BE

RAISED:

I. Any Person
Sec: 403 bars subsequent trial of a person who had once been placed for the same offence

Principle of Sec: 403 extends to such persons and therefore where three out of five persons
concerned in the offence were at first place on trail and were acquitted, subsequent trial of
remaining two in charge of abetment was barred by this section.
II. Tried
 Trial must be previous to bar subsequent trial.

 It is not necessary that there should be a full previous trial.

 Gross illegality or irregularity will not a bar

 Trial where conducted without complaint is void ab nitio

III. Acquittal or Conviction

This section bars a trial when accused is either acquitted or convicted in first trial

withdrawal of remaining charges under Sec: 240 upon conviction of several charges
amounting to acquittal

 What’s not acquittal under sec: 403

Order under Sec: 249 Person released by Appellate Court on grant of illegal/irregular
procedure in the lower court, release is no bar.

IV. Court of Competent Jurisdiction

Competency of court is extremely significant that forms whole basis of Sec: 430(1)

 Word “jurisdiction” not only refers to character or status of tribunal but also
territorial/local jurisdiction as laid down in Sec: 177, 184 &188.

V. For the same offence

The words “same offence” mean the same act or omission made punishable under
the same provision of law. They denote the same transaction, and the section provides that
on the basis of the same criminal charge a person cannot be vexed twice.

Where offences are distinct in form such as offence of embezzlement is distinct from
offence under Sec: 420 PPC, it does not bar second trial under Sec: 409, PPC. In case of
continuing offence such as retaining property is a continuing offence; acquittal in continuing
offence is no bar.
VI. Same facts
Trial for offence of theft of an animal bars in subsequent trial for offence of mischief of
subsequent killing of that animal

A person tried for using criminal force cannot be tried for hurt on same facts

Person charged under Sec: 211, PPC cannot be tried under Sec: 182, PPC

Person charged under Sec: 324, PPC cannot be tried under Sec: 323, PPC

VII. Any Other Offence

For which a different charge might have been made. Where a person charged under Sec:
302, PPC and no charge under Sec: 304 were framed, second trial under Sec: 304 are barred
under Sec: 403.

Sec: 403 and Principle of Constructive Res Judicata

VIII. Sec: 236 & 237 Cr.P.C

Any other offence for which a different charge might have been made under S. 236.

 A person tried for a substantive offence cannot be tried again for abetment
of the offence.

10. EXCEPTIONS:
Following are the exceptions of Sec 403:

i. Distinct Offence (SEC: 403(2))

Means an offence entirely unconnected with former offence

 Sec: 4 & 5 Explosive Substance Act and Sec: 307, PPC

 Counterfeiting coin Sec: 243 PPC distinct from Sec: 240 PPC

 Theft Sec: 379 PPC & opium Sec: 9 Opium Act

 Hurt & Affray

ii. Different Offences [SEC: 403(3)]

 Direct consequence (Sec: 307 &302)

 Consequences not known to the court but in case where they are in the knowledge then
this exception is not attracted

iii. Incompetent Court (SEC: 403))

Words “not competent to try” means had no jurisdiction to try cases meaning thereby it
refers competency of the tribunal to try offence not nature of offence.

11. EFFECT OF SUBSEQUENT LITIGATION:

Where accused acquitted of mischief on the ground that tree in respect of which the
offence was committed, was their own property, they afterwards may not be tried for theft
of the same on the same facts.

12. WHERE BAR UNDER CONSTITUTION AND UNDER SEC: 403

NOT ATTRACTED:
When there is nothing to indicate that accused was being prosecuted on same facts and in
respect of same offence.

13. RULE OF ISSUE ESTOPPEL PREVENTS RE-LITIGATION:

The principle underlying S. 403 does not rest on any doctrine of estoppel but
on grounds of public policy

14. WHAT TIME TO TAKE PLEA:

Proper time to take a plea under S. 403 is when the accused is called upon to plead.
But a plea of bar under this section can be raised at any stage of the case. It can be raised
even in revision.
15. DUE PROCESS OF LAW IN U.S CONSTITUTION:
Trying a person twice in the same jurisdiction for the same crime, a practice prohibited by
the Fifth Amendment to the Constitution. (See due process of law.)

16. PRECLUDE REMARKS:

“Person once tried or acquitted by a competent court for reason of inadequacy of

evidence, could not be tried again for the same offence, even though evidence

sufficient for his conviction could have been subsequently found against him.”

PLD 2007 KARACHI 44

Q. 8: FIRST INFORMATION REPORT

1. PREFACE

2. RELAY PROVISION
Section 154 Cr. P. C

3. INTERPRETATION
First Information Report is not mentioned in the Code of Criminal Procedure, but
these words are understood to mean recorded under Section 154.

4. SCOPE OF FIR
“F.I.R. is only a primary document, which provides legal basis to police for
proceeding further in accordance with law and for determination of relevant facts.”

2008 YLR 1891

5. OBJECT OF FIR
“First Information Report in a criminal case was an extremely vital and valuable piece
of evidence for the purpose of corroborating the oral and ocular evidence adduced at the
Trial.” 2008 MLD 1611

6. WHO MAY LODGE FIR

It is not a requirement of this sec that the person giving the information should have
personal knowledge of the incident.
7. FIR TO BE REDUCED INTO WRITING
Every information relating to the commission of a cognizable offence shall be
reduced to writing.

8. SUBSTANCE OF FIR SHALL BE ENTERED IN A BOOK

Only the substance of information relating to the commission of a cognizable offence
is to be entered in a book to be kept at every police station in such a form as the

Provincial Govt. may prescribe.

“F.I.R. is the document which is entered into the book maintained at the police station at
the complaint of the informant and brings the law into motion, whereby police starts
investigation of the case under S.156, Cr.P.C.”

2008 SCMR 1556

9. IMPORTANCE OF PROMPT FIR

The object of insisting upon prompt lodging of the FIR is to obtain the earliest
version regarding circumstances in which the crime was committed as the delay is likely to
cause coloured version.

10. EFFECT OF PROMPTNESS

FIR is substantive piece of evidence so it must be lodge as soon as possible

11. DELAY IN LODGING FIR

The delay in filing FIR must be explained by the prosecution, as delayed FIR does not
help the prosecution.

12. EXPLANATION OF DELAY

Delay in every case cannot be a ground to arouse suspicion. It can only so when the
delay is unexplained. Unexplained delay in lodging of FIR makes the evidence in the Court
unreliable for want of necessary corroboration.
13. EFFECT OF DELAY
Delay in setting the law into motion by lodging of complaint in Court or of FIR at
police is normally viewed by Courts suspicion because there is possibility of concoction of
evidence against an accused. So it is necessary for the prosecution to satisfactorily explain
the delay.

“Delay in lodging F.I.R. quite often would result in establishing that same was
a creature of afterthought.” 2008 YLR 1891

14. INORDINATE DELAY

“Delay in lodging F.I.R. quite often would result in establishing that same was a
creature of afterthought.”

15. TELEPHONIC MESSAGE

Whether a telephonic message can be treated as FIR depends on the facts of each
case. If the telephonic is not mysterious or vague, it can be treated as FIR, if on the other
hand, the telephonic message is vague, it cannot be treated as FIR.

 A telephonic message about the commission of an offence, entered in General Diary,

lacking details of the commission of offence would not be treated as FIR.

16. STATEMENT OF INFORMANT AFTER INVESTIGATION

Collection of evidence

Actuall Fact

Finding Truth

17. BEFORE WHOM FIR TO BE GIVEN

Police

Application TO Magistrate

SHO
18. INGREDIENTS OF FIR
a) An Information

b) Relating to commission

c) Cognizable offence

d) In writing

e) Signed by the person giving it if written by the person recording it

f) Substance to be entered in a book kept by such officer

g) In such form as the Provincial Government may prescribe

19. EVIDENTIARY VALUE

Fir is substantive piece of evidence

20. CORROBORATION TO ORAL EVIDENCE

CORROBORATION TO ORAL EVIDENCE Must be essentially .

21. SECOND FIR

“Registration of second F.I.R. regarding the same occurrence is not barred.”

2009 MLD 99

“Where a different, opposite or a cross version disclosing commission of a cognizable

offence, is put forth by the complainant, second F.I.R. is not barred.”

PLD 2008 LAH 103

22. RIGHT TO RECEIVE COPY OF FIR

Fundamental right to complainant

Legal heirs

In person

23. PRECLUDE REMARKS

Q. 9: HABEAS CORPUS

1. PREFACE:
 PLD 2008 LAH 479

Out of the legal rights, the right to liberty is placed on a higher pedestal, which is to be
respected by all and sundry---Courts are the guardians of the liberties of the citizens---Even
a worst criminal in the society is entitled to legal safe-guards and his legal rights cannot be
taken away in a slipshod manner.

2. RELAY PROVISION:
Sec: 491 Cr. PC

3. COMPARATIVE REFERENCE:
Sec 100 Cr. P. C

Sec 552 Cr. P. C

4. CROSS REFERENCE:
Article 199 (1) (b) (i) of Constitution of Pakistan, 1973

Sec 25 of the Guardians & Wards Act, 1890

5. MEANING OF HABEAS CORPUS:

a. Literal Meaning:

Have his body

b. Legal Meaning:

“A writ employed to bring a person before a court, most frequently to ensure that the
party’s imprisonment or detention is not legal.”
 Black’s Law Dictionary

6. DERIVATION OF HABEAS CORPUS:

 habēre to have + corpus body

7. SCOPE-- CONSTITUTIONAL PROVISION:

Inalienable right of every citizen under Art 4 to be dealt with in accordance with law and
Article 9 i.e. no person shall be deprived of life & liberty save in accordance with law.

Article 10 provides that safeguard as to arrest and detention.

8. OBJECT:
 AIR 1999 SC 843

“The whole object of habeas corpus is to make them expeditious to keep them as free from
technicality as possible and to keep them as simple as possible”

The incalculable value of habeas corpus is that it enables immediately determination of the
right to the petitioner’s freedom”

9. NATURE OF PROCEEDING:
 PLD 2008 LAH 479

“Proceedings under Ss.491 & 491-A, Cr.P.C. are summary in character and are not intended
to go beyond the summary consideration of the questions essentially relevant to the alleged
detention i.e., whether a detenue is to be set at liberty and as a consequence thereof be
permitted to go with the person of his or her own choice, or to drop the proceedings when
the detention is found legal”
10. MANNER IN WHICH PRESENTED:
In form of writ

Suo Moto

11. PROCEDURE:
i. Who may file
Under Article 199 of the Constitution, 1973, there is no restriction as to the person who may
make an application for order of habeas corpus.

As a general rule, however, any person having special interest, right or authority in or from
the person wrongfully detained may seek relief on his behalf.

ii. Adequate remedy

The writ may be refused where there is an alternative remedy available by which the validity
of the detention may be examined

iii. Satisfaction of court

To invoke the jurisdiction of Sec 491 it is necessary to satisfy the Court that there was
infringement of right of liberty of the detenue.

iv. Suo Moto Exercise of Powers

Words “whenever it thinks fit direct” are of wide connotation and do not provide any pre
condition for pressing into service the power contained in S. 491, Cr. P.C.

Therefore, High Court under S. 491 on the basis of inspection of a judge can without
any application initiate proceedings on the judicial side to ensure the personal liberty
granted by the Constitution of Pakistan, 1973.

v. Territorial Jurisdiction
Sec 491 authorize the High Court to deal with persons who are detained or alleged to be
detained within its jurisdiction.

12. JURISDICTION OF HIGH COURT:

 2001 MLD 819

“The High Court has two fold jurisdictions under s. 491

Firstly: To deal with a person within it’s appellate criminal jurisdiction according to law
Secondly: to set detenue at liberty if found to be illegally or improperly detained”

13. JURISDICTION OF SESSIONS JUDGES:

Inserted by Ordinance VIII of 2002 dated 9-2-2002

 pLJ 2002 sindh st 760

“The rules framed by the High Court under subsection I-A of Sec 491 shall, mutatis
mutandis, apply to proceedings in cases under s.491 of the Code before the Session’s
judges”

Sec: 491 [1-A]

Empowers that High Court by publishing the same in the official gazette may
delegate powers under sec: 491(1) (a) (b)

a. Session Judge

b. An additional session judge

Within the territorial limits of a session divisions.

14. PROCEEDINGS WHEN INFRUCTUOUS:

 1999 PCrLJ 1439

“Habeas Corpus would automatically become in fructuous, if detention of detune is

legalized subsequently”.
15. GRANT OF BAIL:

 2002 PCrLJ 303

“Although bail plea ordinarily is not to be considered yet in the peculiar facts &
circumstances of the case the detenue be ordered to be released on bail”.

16. PRECLUDE REMARKS:

Section 491 confers statutory powers and not generally the power of issuing writ of habeas
corpus. Provisions of S. 491, Cr. P. C. have been envisaged to deal with a person detained
illegally or improperly either in public or private custody and to give a direction to set him at
liberty if the detention is found to be illegal or improper.
 Q. 10: PUBLIC NUISANCE

1. PREFACE:

PLD 2000 Lah 133

“Sec: 144 is a transitory provision meant to cater for temporary
situation or to facilitate the stop gap arrangement till alternate measures
could be taken to safeguard the interest of the individual and to preserve
public peace and tranquility”.

2. RELAY PROVISION:

Ch: XI sec: 144

Ch: X sec: 133
The Code of Criminal Procedure, 1898

3. CROSS REFERENCE:

Sec: 134
The Code of Criminal procedure 1898
Sec: 91
The Code of Criminal Procedure 1898
Sec: 268
Pakistan penal Code 1860

4. SCOPE AND APPLICATION OF SEC:144:

1999 PCrLJ 218

“Magistrate not empowered to decide dispute of civil nature”

5. WHEN POWER TO BE EXCERISED:

 2000 KLR (CR) 344
“Powers can be exercised for public good and interest of country”

6. WHEN ORDER BE ISSUED:

 In urgent case of nuisance

 Apprehended danger

PLD 2001 Pesh 19

“Order under sec: 144(4) and (5) should not be passed unless absolute
necessary i.e. to meet emergent danger when sufficient and adequate
remedy is not available”

7. BASIS OF THE ORDER:

Salus populi suprema lex

Meaning
Welfare of people is supreme law

8. WHAT CONSTITULTES PUBLIC NUISANCE:

Sec: 268 of Pakistan Penal Code 1860

 A person must do an act or must be guilty of an omission
 Such act or omission must cause
i. Common injury, danger or annoyance
1. to the public
2. to the people in general who dwell or occupy property in
the vicinity
ii. Injury, obstruction danger or annoyance to person who may
have accession to use any public right.

9. WHO MAY PROCEED UNDER SEC:144:

 Zila Nazim:
Substituted by Ord. XXXVII of 2001
  Written recommendation:
Of district administrative officer or assistant district
administrative officer.
1. substituted by Baluchistan Ordinance XXXII of 2001

10. REASONS OF PROCEEDING UNDER SEC: 144:

 Urgent cases of danger

 Apprehension of danger
 Sufficient ground for proceeding
 Immediate prevention
 Speedy remedy is desirable

11. ORDER AND ITS CONTENTS UNDER SECTION 144:

 Form of order:
Order made under this section will be written in form

 Nature of Order:
Order under this section is prohibitory and preventive

 Contents of Order:
i. Be in writing and signed
ii. Be specific and definite
iii. Staling material facts
iv. To be co extensive with the prevailing emergent situation

 Direction made under orders:

i. To abstain from a certain act
ii. To take certain order
iii. With certain property
iv. In his possession or management

 effect of such order

Such direction would likely to
i. prevent
ii. attempt to prevent
1. obstruction
 2. annoyance
3. injury
4. risk of obstruction
5. annoyance, injury to any person lawfully employed
6. danger to human life
7. health or safety
8. disturbance of public tranquility
9. risk of
10.an affray
 Order How made:
Served in a manner stated in 134 of the Code of Criminal
Procedure, 1898 i.e service or notification or order

 Order When ex pate:

Where situation is of gross emergence so that notice or summons
are not feasible to serve than an ex-prate order is issued or made.

 To Whom Order Directed:

May be directed to a particular individual or to generally to public.

 Rescission or Alteration of order:

Zila Nazim

Suo Moto on application

May
Rescind Alter

Order

Made by Predecessor in
Him office

 Recession of Application:

Application

Opportunity of in person or through

Hearing pleader

To Give Reasons

If Zila Nazim

Partly rejects wholly rejects

 Shall

Record in writing
Reasons for doing
So
 Duration of Order:

Order

Two consecutive not more than 1

Days in a month in a month

If otherwise directed
by Provincial Government

12. PREVENTION OF PUBLIC NUISANCE BY MAGISTRATE:

[Sec: 133]
 Who is Empowered:
Magistrate of 1st class

 Source:
i. Receipt of police report
ii. Or other information
iii. On taking such evidence

 Nature of Order:
Conditional order

 In Case of Refusal:
Magistrate may modify or set aside such an order
  Mode of Service of Order:
As provided for summons

 To show cause to whom order directed:

To whom such order is directed he has three following options
i. Musty carry out order
ii. Show cause against the order
iii. He may apply for a jury

 Penalty for non compliance under sec:188:

[Sec: 136]
i.e. disobedience of order duly promulgated by public servant

h. Procedure where he appears to show cause or claims injury:

[Sec: 137 and 138]

Procedure

He appears to He Claims
Show cause jury [sec: 138]
[Sec: 137]

Magistrate magistrate uneven numbered not less

than
Satisfied not satisfied jury five

For order with the

to be un evidence
-reasonable fix time for giving order
Unless extended by giving
Good and sufficient reasons
He may stop he shall
Fur her pro make order
-ceeding Absolute If magistrate is satisfied with
the order he shall made such
order absolute
 i. Effect if absolute order:

Order

Made absolute under

Sec: 136 Sec: 137 Sec: 139

Magistrate shall

Give Notice to whom order

Was directed

To obey within fixed time

Non obedience causing

Penalty under sec: 188
Of PPC

13. Preclude
 Q. 11: Bail

Preface:

PLD 2003 Kar 526

Held:
“A court considering a bail application has to tentatively look to
the facts & circumstances of the case & once fact & circumstances
of the case & once It comes to the Preclude Remarks that no
reasonable ground exists for believing that the accused has
committed a non bail able offence it has the discretion to release
the accused on bail”

2. RELAY PROVISION:

a. Sec: 496-502 The Code of Criminal Procedure 1898

b. Ch:10 Vol: III ,High Court Rules & Orders

3. HISTORICAL PERSPECTIVE OF BAIL:

The concept of bail emerges from the conflict between the police
power to restrict the liberty of a man who is alleged to have
committed a crime it has a long history and deep routs in English &
American law, prisoners were bailed or delivered to reputable third
parties of their own choosing the law of bail being not static grew
all the time molding itself with exigencies of time

4. BAIL –DERIVATION TERM:

Bail bail

Latin word French word

Bajulare Billier

To bear a burden give or deliver

5. MEANING OF BAIL:
 a. Black’s Law Dictionary:
“Release of a person from custody of law”

b. Case Law Meaning:

PLD 1998 S.C 1
“Ratio Decidendi”
“The basic concept of bail in release of a person from the
custody of police & delivery into the hands of sureties, who
undertake to produce him in court whenever required to do
so”

6. CLASSIFICATION OF BAIL:

a. As to nature of offence:

Bail

Bail able Non- Bail

Offence able Offence

b. As to Arrest:

Bail

Before After
Arrest Arrest

7. GRANT OF BAIL:

a. Magistrate Power to Grant

i. In offences up to three years imprisonment magistrate 1st

class can grant bail
ii. In offences from 3-10 years of imprisonment sec:30
magistrate can grant bail.

b. Power of High Court:

 In case of more than 10 years imprisonment or death penalty
session court, High Court & the Supreme Court can grant bail.

c. Bail by Police:

If a person is arrest by police in bail able offence the investigating

offence can enlarge or discharge him on bail or under a special
order of magistrate.

d. Bail and Bail Bond:

Person arrested may also be discharged by police on his own bond

8. WHEN BAIL MAY BE GRANTED:

Bail

Before Arrest or
After Arrest
Pre Arrest Bail

9. BAIL BEFORE ARREST:

a. Meaning of Arrest:

Apprehension or actual restraint or deprivation or one’s

personal liberty

b. Relay Provision:

Sec: 46-61 the Code of Criminal Procedure 1898

Bail

Before Arrest After Arrest

Ss. 498 Ss. 497

Offences
Bail able Non- Bail able

Bail before Arrest

2. RELEVATNT PROVISION:

a. Sec:498 The Code of Criminal Procedure 1898

3. SCOPE OF PRE- ARREST BAIL:

2003 PCrLJ 135

Ratio Decidendi:
“Pre arrest bail can only be granted if there are ulterior motives
humiliation in justify harassment & apprehension of irreparable to
the reputation”

4. PRE-ARREST BAIL- ANTICIPATORY BAIL:

Sec: 398 empower session court & high court to grant pre-arrest
bail in cases or exceptional retire but such power has to be
exercised when preconditions laid down by superior courts are
satisfied.

5. CONDITIONS FOR PRE-ARREST BAIL:

PLD 1983 SC 82
Ratio Decidendi:
a. “Arrest being for ulterior motives.
b. Prosecution motivation to cause irreparable
injury reputation & liberty.
c. Motivation of police on police on political
consideration”

6. APPROACH TO HIGH COURT:

PLD 2000 Kar 6

Ratio Decidendi:
“High court can entertain application for pre-
arrest bail & grant relief to accused in
appropriate cases”

7. MAKING OF APPLICATION:
 No legal bar exists to release the accused on bail without
application by him. No bail application is required under section:
496, 493 & 426 CrPC

8. NOTICE TO STATE:
No time limit is fixed for a notice to prosecution and in appropriate
cases of real hardship an application for anticipatory bail can be
heard on the some day when it is filed after giving notice to
prosecution.

9. REJECTION OF APPLICATION EFFECT:

Rejection of application for pre-arrest bail does not have any
bearing on bail after arrest

10.CONDITIONS FOR BAIL BEFORE ARREST:

a. That there are genuine proved apprehension of imminent arrest

with the effect of virtual restraint on the petitioner
b. That the petitioner should physically surrender to the court.
c. That on account of ulterior motives, particularly on the part of the
police, there should be apprehension of harassment and undue
irreparable humiliation by means of unjustified arrest.
d. That it should be otherwise a fit case on merits for exercise for the
purpose of bail in this behalf s 497 would be kept in mind.
e. That unless there in reasonable apprehension the sessions court for
the same relief under sec:498
f. Element of ‘malafide’ false involvement arrest with motive to
humiliate & malicious prosecution are prime consideration for bail
before arrest.
g. Accused would be entitled to anticipatory bail when malice of
complaint is visible and that his only purpose is to make accused
bite the dust & not to secure ends of justice.
h. The court dealing with an application of bail before arrest in
whether an irreparable injury to the name & liberty of a citizen
would result if bail is refused.
i. Bail before arrest is not the rule in cognizable offence there are
some pew liar feathers of the case which would justify the exercise
of this discretionary power.

11.SINE QUA NON- BAIL BEFORE ARREST:

PLD 1998 SC 97
Ratio Decidendi:
 “Apprehension of arrest of an accused being for
ulterior motive i.e. that of humiliation & unjustified
harassment is a sine qua non for pre arrest bail”

12.SUPREME COURT RULES:

O.XXIII R.6 Supreme Court Rules 1980

Permits the Supreme Court under its inherent power to make
such order as may be necessary for the ends of justice.

13.GRANT OF PRE-AREST BAIL IN MURDER CASE:

Grant of bail before arrest is a rare phenomena & should ordinarily

not be granted. More particularly, when it is a case of
circumstantial evidence.

14.CANCELLATION OF PREARREST BAIL:

1994 PCrLJ 1784

Ratio Decidendi:
“Aggrieved person competent to move for
cancellation of bail”

15.REFUSAL OF BAIL:
2000 PCrLJ 284
Ratio Decidendi:
“Bail can be refused even in cases which do no
not fall within prohibitory clause of S.497”

16.PRECLUDE REMARKS
Rule: 5
Bail to be granted promptly
Rule: 15
Bail application to be treated as urgent
 Q. 12: APPEAL

1. PREFACE:

Appeal is a continuation of on going judicial proceedings, however,

according to sec: 404, no appeal lies against any judgment or order of a
court exercising criminal jurisdiction unless special provision has been
made by this code or any law time being in force.

2. RELAY PROVISION:

Sec: 404 to 431

The Code of Criminal Procedure 1898
Ch: 25-c, Vol III

3. MEANING OF APPEAL:

Oxford Dictionary Meaning:

“To remove a case formally from an inferior to a higher court”
Case Law Definition:
PLD 1966 Lah 684
“Appeal is a right created by statute and exercisable when expressly
given, A right of appeal is neither natural nor inherent but to be expressly
provided for”

4. APPEAL WHEN ADMISSIBLE:

APPEAL

MATTERS
 Fact law

5. FORM OF APPEAL:
Sec: 419
Sec: 419 provides presentation of appeal which should be
 In writing
 Be accompanied by a copy of judgment or order appealed against
 Presented by the appellant or pleader

1997 P.Cr.L.J. 1181

Principle:
“Appeal should accompany the memorandum of appeal in order to
enable the court to know what accompanies the memorandum of
appeal is a true transcription of the original judgment or order”

6. DUTY OF APPELLATE COURT:

Appellate court is liable to consider

 The view of the trial judge as to the credibility of the witnesses
 Presumption of innocence in favor of the accused
 The right of the accused to the benefit of any doubt
 The slowness of an appellate court in disturbing in finding of fact
arrived at by a judge who had the advantage of seeing the witness

7. STATUS OF APPELLATE COURT’S JUDGMENT:

Sec: 430
Principles of finality of judgment is attached with full force of decisions
or orders passed by an appellate court except in cases as being provided
in sec:417& chap: XXXII.

i. CASES IN WHICH NO APPEAL LIES:

When Accused Pleads Guilty:
Sec: 412
 Sec: 412 of the Code bars a convict to prefer an appeal where conviction
is based on his pleading guilty plea of guilty to be considered on the basis
of circumstances approved against him (the accused)

Jurisdiction Of Appellate Court:

Jurisdiction of appellate court would extend to question of legality
& extent of sentence only.
Appellate forum:
Conviction by High Court and magistrate of the first class or a
court of sessions be exercising power to the extent of legality &
sentence

Imprisonment …..Six Month:

Where a high court passes sentences of imprisonment not
exceeding six month only or of fine not exceeding Rs. 200/= (sec:
413)

Sentence by sessions court:

Where a court of sessions passes a sentence of imprisonment not
exceeding one month only no appeal shall lie against such order
Sec: 413
Fine Not Exceeding Rs. 500/=
Where a court of sessions, district magistrate or first class
magistrate passes a sentence not exceeding Rs. 50 (sec: 413)
Imprisonment In Default of payment:
No appeal shall lie against an order or sentence of imprisonment is
inflicted in default of payment of fine when no substantive
sentence of imprisonment has been passed (Sec: 413)

Summary Convicting:
Sec: 414
Where in a summary trial a magistrate passes a sentence of fine not
exceeding Rs. 200/= appeal shall not lie against such an order.

Dismissal of Complaint:
Sec: 203
An appeal shall not lie against when a complaint is dismissed for
insufficient ground.
 Exception to sec: 413 & 414
 Sec: 415
Section: 415 is an exception to the law stated in sec: 413 and
414 which says that appeal may be brought appeal may be
brought against 413 & 414 when maintain punishment is
combined with any other punishment.

8. APPEALATE ORDERS AND JUDGMENT:

An appeal may lie from the following judgments and orders passed by a
court of law
1. order rejecting application for restoration of attached property:
Sec: 405
according to sec:405 everybody whose application filed
under section 49 for the purpose of delivery of property or
sale proceeds earned wherefrom, has been rejected by any
court of law may prefer an appeal to the court to which
appeals are ordinarily filed against the order of sentence
passed by the former court
2. appeal against order requiring security for keeping peace or
for Goble behavior: Sec:406
a. Order Given by:
Keeping in view the language of Sec: 406 an
ordered is to be passed by a magistrate
b. Order Given under:
To attract the provisions of sec: 406 an order
must be given under Sec: 118
c. Reasons of Order:
Order must be given to give security for
keeping peace or for good behavior
d. Forum of appeal:
Order by magistrate under sec: 406 lie to the
court of sessions
e. Exceptions:
Such persons are excluded against whom
proceeding are into process in the court of
sessions under sec 123(2) or 3-A
3. Appeal From Order Refusing to Accept or Reject a Surety:

a. Who may appeal:

Any person who an order refusing to accept or
reject a surety, under section 122
 b. Forum of Appeal:
Appeal against such an order lies to the court of
sessions

4. APPEAL FROM SENTENCE OF ASSISTANCE SESSIONS

JUDGE OR JUDICIAL MAGISTRATE:

a. Who May Appeal:

According to Sec: 408 any person who has been
convicted on a trial being held by an assistant
Sessions judge or any judicial magistrate or any
person sentenced under Sec: 349
b. To Whom Appeal Lies:
Appeal under sec: 408 lies to the court of sessions,
provided as follows
1. Appeal to High Court
An appeal to high court shall lie when
A.S.J has passed any sentence of
imprisonment for a term exceeding four
years.
2. appeal to High Court:
When a magistrate convicts persons under
sec: 124-A of P.P.C, appeal lies to high
court
5. appeal from sentence of court of sessions:
Sec: 410
a. Who May Appeal:
Any person may acquire the right of appeal
under sec: 410 who has been convicted on trial
held by a sessions judge or an additional judge.
b. To Whom Appeal lies
Appeal against sentence of Court of Session’s
lies to the high court.
c. Sec:410 real with Lahore High Court Rules&
Order
Rules: 5 ch: 19-A Vol: III
Which provides that where a person is
convicted of an offence made up of parts each part
which constitute offence or when a person is
convicted of more than one offences than one the
limitation imposed by (s. 71 P.P.C) & (Ss. 35 CrPC
) must be adhered to
6. Order to pay compensation:
 a. Who May Appeal:
A complainant or informant who by a magistrate
trial class been ordered under sec: 250(2) to pay
compensation exceeding 50/= rupees may appeal
b. To Whom Appeal lies:
The appeal would be competent before the district
magistrate or the court of sessions.

7. Forfeiture of Bond:
Sec: 514

a. Who May Appeal:

Any person against whom an order under Sec: 514
has been passed may prefer an appeal
b. Forum of Appeal:
All orders passed under sec: 514 by a magistrate
are appeal able the session’s judge.

8. Order of Disposed of Property:

Sec; 517
An appeal may also be preferred under sec: 517 against
disposed order of property regality the commission of
offence

9. Order to Pay an Innocent Purchased of The Property:

Sec: 519
Order made under sec: 519 is also appeal able
10.Order of Disposal of Property:
Sec: 524
a. Who May Appeal:
A person aggrieved by an order of disposal of
property with provincial government may appeal In
this respect
b. To Whom Appeal Lies:
Every order passed under sec: 524 is subject to be
appeal able in the court to which appeal against
sentences of the court passing such order would lie.
11.Order of Court as to release of convicted offender on good
conduct:
Sec: 526
a. Who May Appeal:
Any convicted offender may prefer an appeal
under this section
 b. To whom appeal lie:

c. Extent of Appellate Court:

To set aside such order or in lie thereof pass
sentence on such offender according to law.
12.Appeal From Sentence of High Court:
Sec: 411-A
a. Who May Appeal:
Any person convicted on the trial held by a High
Court may appeal to high court
b. Ground of Appeal:
Appeal to be made against the conviction on any
ground involving a matter of law only.
c. To Whom Appeal lies:
An appeal shall be heart by a Division court of
a High Court consisting not less than 2 judges
other than those of the original trial.
1. Transfer of Appeal:
If the Constitution of Division Court seems
impracticable it may be transferred under
sec: 527 to another High Court
2. Appeal To Supreme Court:
An appeal shall lie to Supreme Court from
any order made an appeal by Divisional
court in which the High Court Grants leave
to appeal
13.Special Right of Appeal in Certain Cases:
Sec: 417
a. Who May Appeal:
Right of appeal against an order of acquittal has
been conferred to any aggrieved person.
b. Forum of Appeal:
Any case instituted upon complaint and acquitted
is passed complainant may appeal to the high court
when special leave to appeal has been made from
the order of acquitted
LIMITATION:
After expiry of ’60 days’ no appeal from special
leave to appeal will be entertained
c. Limitation:
30 days
9. POWERS OF APPELLATE COURT IN DISPOSING OF APPEAL:

 Scope Of sec: 423

Sec: 423 defines the powers of the appellate court in dealing with
appeals

 After Pursuing Such Record:

It is mandatory for the appellate court to summon the record for its
perusal
 Hearing:
The expression ‘hearing’ is implied in Sec: 423(1).it gives the
convict appellant right of audience through counsel in his appeal
against conviction and to hear the appellant or his pleader.
 Disposal of Appeal From An Order of Acquittal:
Sec 423 (1) (a)
1. Reverse order of acquittal
2. Direction of Further inquiry to be made
3. that the accused be rehired
4. to be sent to High Court or the Court of Session
5. On finding him guilty pass sentence according to law.
 Disposal of an Appeal From a Conviction:
Sec: 423 (1) (b)
1. Reverse the finding and sentence and acquit or discharge or sent
for trial or to be rehired by a court of competent jurisdiction
subordinate to such appellate court
OR
2. Alter the finding, maintain, the sentence or with or without
altering reduce the sentence
OR
3. without reducing and altering the finding alter the nature, of the
sentence, subject to sec:106(3) not to enhance the same
 Disposal of Appeal From Other Order
Section 423 (1) (c)
a. Alter or
b. Reverse such order
 Amendment to Any Consequential or Incidental Order:
Sec: 423 (1) (d)

1. Consequential ‘or’ Incidental

The consequential or incidental order can only follow from
the operative order in appeal which can be either affirming
the conviction or setting aside reduce or alter the sentence.
 2. Amend:
Under section 423(1) (d) High Court has the power to make
any amendment
3. Just & Proper:
Any Amendment that may be just or proper in the
circumstances of the case.

10. abatement of appeal

Sec:431 The Code of Criminal Procedure 1898

Abatement of Appeals

Appeal under sec: 411-A (2) or every other appeal

Except an appeal from
a sentence, of fine

Shall finally abate on the

Death of the accused on the death of the
Appellate

11. PRECLUDE REMARKS:

Rule: 5
Appeal should not be dismissed in default
High Court is not competent to review it order disposing of criminal
matters finally which is in nature of judgment
Q. 13: Irregular Proceeding & its vitiation

1. PREFACE NOTE:

Law demands that there must be no irregularity or illegality in any case but in conducting
judicial and proceedings and applying legal provisions same irregularities or illegalities are
observed the question of their affect on continuing proceedings and their outcomes calls for
serious consideration.

2. RELAY PROVISION:

Sec: 529 throw 532,535,537 through 539 The Code of Criminal Procedure 1898

3. MEANING OF IRREGULARITY:

Black’s law Dictionary Meaning:

The irregularities are those judicial proceedings which are carried on erroneously but in
good faith

4. OBJECT:

The object of law is to safeguard the rights of parties which suffer at the hands of a judicial
forum and to prevent endless litigation between the parties
Irregularity

Which do not vitiate which vitiate

Proceedings [Sec: 529] proceeding [Sec: 530]

Effect

Illegality

5. IRREGULARITY WHICH DO NOT VITIATE PROCEEDINGS

[Sec: 529]

a. Scope of sec:529

Sec:529 provides that where a magistrate not empowered does any of the acts specified in
this section erroneously in good faith his proceedings will not be set aside merely on the
ground that he was not so empowered.

b. Empowered:

The word ‘empowered’ inserted in the section refers to the ordinary or additional powers
conferred upon magistrate under section 36 and 37 schedule III & IV

c. Instances of irregularity not amounting to vitiate proceedings

i. Warrant of search of a house:

Search warrant of a house suspected to contain stolen property forget documents false
seals for counterfeit stamps, banks notes or currency notes or coins and instruments or
material used for kept for such purposes are kept or deposited if issued by a magistrate not
empowered under section 98 is an irregularity the proceedings taken up will not be set
aside for lack of powers.

ii. Investigation of an order offence by the police:

If a magistrate who does not have power to try such cases directs a police officer to
investigate into a non cognizable offence case u/s 155 it will an irregularity the proceeding
conducted by such magistrate will not be set aside or vitiated merely for want of powers

iii. To hold inquest:

If a magistrate not empowered by law under section 176 himself holds and inquiry into the
cause of death or direct a police officer to hold an inquiry into an offence, will tantamount
to an irregularity but will not vitiate the proceeding.

iv. Accused committed an offence outside jurisdiction:

In case a magistrate, not empowered under section 176 issues a process for the
apprehension of a person within his territorial jurisdiction has committed an offence buyer
such limits, will be an irregular the proceedings will not be set aside.

v. Cognizance of offences by Magistrate:

If any magistrate not empowered to take cognizance of an offence under section

190(1)(a)(b), erroneously in good faith take cognizance of it, his proceedings shall not be set
aside merely on the ground of his being not so empowered.

vi. To transfer a case:

If a magistrate who is not empowered to make over cases transfers a case to a subordinate
magistrate the irregularity is ignored under this section if the transfer is made erroneously
in good faith.
 vii. Tender of pardon:

If under section 337 and 338 a magistrate without having powers at any stage of the
investigation or inquiry into or the trial of an offence tender a pardon to any person, would
amount to an irregularity but the proceeding will not be set aside.

viii. Sale of property:

According to section 524 and 525, if magistrate without having been specially empowered
directs that a property of whom no claimant appears within six months be placed at the
disposal of provincial. Government and sold under the order of a district magistrate a
property which is object to speedy and natural decay, be sold for the benefit of it owner,
will be an irregularity though not resulting to vitiate the proceeding.

ix. Withdrawal and trial:

Magistrate not clothed with a power to withdraw a case and to try it himself will not vitiate
the done proceeding but will be an irregularity.

6. IRREGULARITY WHICH VITIATE PROCEEDINGS:

[Sec: 530]

A. Scope of section 530:

PLD 1968 Quetta 15

“The list of irregularities in section 530 in not exhaustive”

B. Instances of irregularity leading to illegality:

i. Attachment and sale of property:

In case a magistrate is not authorized to order sale or attachment of property under section
88 belonging to an absconder any such ordr if issued by him, shall have no force and will be
illegal & void.

ii. Issuances of search warrants etc:

If a magistrate without special empowerment, issued a search warrant for an item of

correspondence i.e. latter, parcel in post office and a telegram in a telegraph office,
anything done by him in this behalf shall be an illegality and the order shall have no force.

iii. Security for peace:

A magistrate who has not been specially empowered in this behalf is not competent to
demand security for keeping in peace maintained in Sec: 107 any such order shall be devoid
of any force and legality.

iv. Security for good behavior:

For good behavior form person responsible for disseminating seditious intimidating or
deforming matters under sec:108 any order parcel by him under this section shall be void
and illegal.

v. Discharge of person of good behavior:

A magistrate is entitled to discharge a person lawfully bound to be of good behavior, who

has not been in custody for keeping peace and maintaining good behavior under sec119 but
if he is not so empowered any order passed under this section shall be void.

vi.Cancellation of Bond:
According to section 125 a magistrate specially empowered are recorded in writing cancel
any bond executed for keeping peace or for good behavior if a magistrate not so
empowered cancel such bond it shall be a grave illegality.

vii.Eradication of nuisance:

If a magistrate makes an unconditional order for removal of public nuisance under section
133 without any empowered such order shall carry no force and legality hence illegality not
curable by law.

viii.To prevent nuisance:

If a magistrate who has not been specially empowered by the provincial government under
section 143 to order prohibit a person from repeating or contributing of public nuisance,
passes such order, it shall have no legality & be void ab intio

ix. Temporary orders in urgency:

Where a magistrate is not empowered to issue absolute order in urgent cases of nuisance or
apprehended danger where immediate prevention or speedy remedy is available, issues
such order it shall carry no force hence void ab initio

x. Making of an order: Ch: XXII

Under section 145 of the Code a magistrate cannot pass an order unless the area where the
dispute arises lies within his jurisdiction, if he does so his order is void.

xi. To take cognizance under section 190:

Magistrate who himself is the complainant taking cognizance of the offence under section
190(1) (c) and convicting the accused after taking evidence would make the proceeding void
under this section.

xii. Passing of sentence under sec349:

If the district magistrate or sub divisional magistrate transfer a case submitted to him under
section 349 to a first class magistrate and such magistrate passes an order thereon, the
proceedings will be void under this clause.

xiii. Calling under sec:435:

If a magistrate calls for and examine the record of any proceeding pending before any
magistrate inferior in rank to him dealing with criminal cases without special empowered
such order shall be of no force and value.

xiv. Revision of an order:

A sub divisional magistrate who is not exercising the powers of a district magistrate is not
empowered to decide an appeal under section 515 and if he does so his order will be void
under this clause.

xv. Trial of an offender:

Where an accused is trial by a magistrate without a prior sanction of provincial government

the proceeding are void

xvi. Summary trial of an offender:

A magistrate not empowered to exercise summary jurisdiction under section 260 tries an
offence summarily his proceeding are void under this clause.

xvii. Disposal of an appeal:

Where an appeal is decided by the sessions judge in a case, where no appeal lies to him the
proceeding are void.

xviii. Proceedings under section 110:

Where proceeding u/s 110 were drawn up by the sub divisional magistrate but they were
transferred to another magistrate who was not empowered to deal with them, proceedings
by that court were illegal & thus not curable.

7. PROCEEDINGS INITIATED IN WRONG FORUM….EFFECT:

[Sec: 531]

Sec:531 relates to proceeding in a wrong place and cures defaults as to the local jurisdiction
of the court any proceedings upheld or decisions or orders passed by such a court lacking
jurisdiction is not to be set aside unless failure of justice has accrued.

8. PRECLUDE REMARKS:

2001 MLD 1281

“Sec:529 provides that where a magistrate not empowered does any of the act specified in
this section erroneously and in good faith, his proceedings will not be set aside merely on
the ground of his not being so empowered another qualification though implied to such acts
of magistrate is that they should have caused failure of justice”.
Q. 14: Transfer of case

1. PREFACE:

The necessity for transfer of a case may arise purely on grounds of convenience of the
parties, fair & impartial trial where the parties have this impression that the judge has
biased opinion.

 “Mere apprehension in the mind of applicant that one would not get justice at
the hands of Presiding Officer of the Court was no ground for transfer of the
case” 2009 MLD 16

2. RELAY PROVISION:
Ss. 526 to 528 of the Code of Criminal Procedure, 1898

3. BASIS OF TRANSFER OF CASES:

Latin maxim “Salus Populi Suprema Les esto” Let the good of the people be the
supreme law

4. APPLICATION OF SECTION 526:

It can be brought into action in any of the three ways, namely:

 The High Court can act suo moto

 The lower Court may apply

 The interested party may apply

5. CONDITIONS FOR APPLICATION:
Transfer of case is resorted only when one or more of the following five conditions
are fulfilled:

i. Fair, impartial inquiry or trial cannot be had

ii. Some question of unusual question of law is arise

iii. An order under this section is required by any provision of this Code will tend to the
general convenience of the parties or witnesses

iv. A view or place required further inquiry or trial

v. It is expedient for the ends of justice

6. ORDER FOR THE COST:

5. GROUNDS FOR TRANSFER

i. When fair trial and impartial trial is not impossible

ii. When question of law of unusual difficulty is involved

iii. When any complicated question is involved

iv. General convenience of parties and witnesses

6. OTHER INSTANCES TO ORDER

i. If an offence be required into or tried by court not empowered under Sec: 177-184
ii. Particular case or appeal be transferred from criminal court to any other criminal
court of equal or superior jurisdiction

iii. or an accused person sent for trial to the said court or to a court of sessions

7. WITHDRAWAL OF TRIAL BY HIGH COURT

When the High Court withdraws any case for trial before itself or from any court it observes,
except as provided in Sec: 267, the same procedure that court would have observed

I. Application can be made Before the High Court for the same by motion, in case where
applicant is Advocate General. It should be supported by affidavit or affirmation

II. High Court directs the applicant to execute a bond subject to the condition that he will
pay any amount by way of costs to the person opposing an application. He must deliver
notice to the public prosecutor along with copy of grounds on which it is made.

III. Order on such application can be made after twenty-four hours after submission and
hearing of such application

IV. In case of dismissal of application, High Court may order payment of costs to a Person
who opposed the application i.e. expenses incurred by him

V. In case of inquiry or trial, complainant or the accused notifies the court his intentions to
make an application for transfer, the court shall not pronounce its final judgment or order
until the application has been finally disposed of.
8. POWERS OF PROVINCIAL GOVT TO TRANSFER CASES (SEC:
527)
The Provincial Government may by notification issue direction for transfer of any particular
case or appeal whatsoever from one high Court to another High Court, or for that matter
from subordinate criminal court to High Court or to any other criminal court in order to
convene the party or for the purpose of administration of justice.

9. WITHDRAWAL OF CASES FOR INQUIRIES AND TRIAL (SEC:

528)
A sessions judge may withdraw, recall a case which he has made over to magistrate
subordinate to him, may inquire or try such case himself, or refer it for inquiry or trial to any
other competent magistrate

10. POWERS OF DISTRICT MAGISTRATE TO TRANSFER CASES

(SEC: 528-A)
A District Magistrate may withdraw, recall a case which he has made over to magistrate
subordinate to him, may inquire or try such case himself, or refer it for inquiry or trial to any
other competent magistrate subordinate to him.

11. SUO MOTO ACTION OF THE COURT

The court at the application of any party may transfer case from one court to another in the
interest of justice. A written petition along with affidavit stating therein reasons for transfer.

The court will admit the petition or may call other party to defend and send the comments
from the concerned court, thereafter may pass an appropriate order.

12. PRECLUDE REMARKS

General convenience of public at large

To secure the ends of justice

Speedy trials

Court may act suo moto or as directed by the Provincial Government, as it may deem fit for
the case
Q. 15: compel to accused appearance of the Court

1. Preface
Compelling the attendance of an accused before a court of law has been prescribed in the
code of criminal procedure, it is very important to act in accordance with their under
mentioned sequence and order , otherwise negative effects on the case may not be ruled
out.

2. Modes
Following are the modes to be adopted by the court to compel appearance of the accused.

1. Summon ( section 68 )

2. Warrant ( section 75 )

3. Proclamation ( section 87 )

4. Attachment of property ( section 88 )

1. Summon ( section 68 )
When the court tries a criminal case and if it thinks that the case can be tried under the law,
it issues summons to compel attendance of the accused or a witness or any person in
possession of a material evidence with the direction to submit written reply before the
court. The summons is an order of the court to either party of the case calling for his
explanation on a fixed date and time. Summon is issued under the seal of the court sign by
the presiding office of the court.

i. Essentials of a summon
Following are the essential of summon

1. It must be written

2. It should bear the signature of the presiding officer of the court or any other person
authorized by the court

3. Nature of the offence must be mentioned thereupon

4. The place where the offence was committed should be mentioned

5. The point or question which the court intends to put to the accused must be mentioned
therein

6. The date and time required for appearance of the accused must be stated.
7. It should also be mentioned whether accused should appear personally or through
counsel.

8. The name and place of the court must be mentioned

9. The particular of accused such as full name, parentage, residential address, etc should be
stated in the summon

10. A clear declaration for not leaving the territorial jurisdiction without permission of such
court should also be mentioned.

ii. Service of the summon

According to section 69 the summons as far as is practicable should be served in duplicate
upon the accused personally through process server of the court in case of non practicable it
can be served through registered post . the person who received the summons should sign a
receipt in case of absence of accused the summon should sign by any adult member of
family of the accused on behalf of the accused.

2.Warrant ( section 75 )
There comes a warrant where the process in the form of summons fails to compel the
attendance of an accused or a witness. A warrant is an always issued as an order of the
court in the name of concerned station house officer whereby such officer is directed to
arrest the required person and produce him before the court on a date and time specified in
such warrant

i. Kinds of warrant
Following are the kinds of warrant

1. Warrant for arrest or attendance

2. Search warrant

i. Warrant for arrest or attendance

According to section 75 , this is such an order of the court whereby the concerned SHO is
directed to arrest the person named in the warrant and produce him before the court at the
place , time and date specified in such warrant.

i. Ingredients
Following are the ingredients of an arrest warrant.

1. Name of the court issuing it must me mentioned

2. It must bear the signature of the presiding officer of the court along with the seal of the
court

3. It must carry full particular of the person to be arrested

4. Brief description of the offence for which the arrest of the accused is required should be
mentioned

ii. How long a warrant remain in force

According to sub section 2 of section 75 a warrant of arrest shall remain in force until

A) It is cancelled by the court which issued it under the law

B) It is executed and the person is arrested.

iii. Difference between bailable and non bailable warrant

Every warrant issued by the court is not bailable . every court is authorized to issue bailable
warrant for arrest of any required person keeping in view the facts of the case.

For bailable warrant, it is mandatory for the court to mention on the back of such warrant
that,

a) Sufficient number of sureties for his attendance

b) The sum for which the sureties and the person for whose arrest such warrant is issued,
are to be respectively bound

c) The accused must be produced before the court on the specified time and date.

ii. . search warrant

Where the court of competent jurisdiction has reason to believe that the person in whose
name a summons of the court or order for production of any material or document is
issued, will not appear or produce such material or document . in this situation, the court
may issue search warrant.

Condition for issuing search warrant

The search warrant may be issued in the following circumstances

A) When any investigation complaint or any other proceeding is already continuing; and

B) The court without any prejudice arrives at a Preclude that such interference is necessary
for such investigation.

3.Proclamation ( section 87 )
When an accused could not be arrested in execution of a warrant and his presence at a
specified place is not known to the court, the court may declare such person absconder,
such court may publish a warrant proclamation requiring such person to appear at a place
mentioned and time specified not less than thirty days from the date of publishing such
proclamation.

i. Procedure for issuance of proclamation

The proclamation of the court shall be proclaimed in the following manner.
a) The proclamation shall be read out at some open place of the area, that is town or village
where such persons ordinarily reside;

b) The proclamation shall be affixes at some conspicuous place of the house or adjacent
property, where such person resides

c) A copy of such proclamation shall also be affixes at some conspicuous part of the court.

4.Attachment of property ( section 88 )

The court which has already issued proclamation for compelling personal attendance of an
accused, may pass an order for reattachment of movable or immovable property or both
belonging to the accused, such order may be passed even before passage or lapse of time
limit specified in the order for proclamation.

i. Procedure for attachment

Following are the procedure for attachment of movable or immovable property

ii. Movable property or loan

In case of movable property or loan the attachment shall be made in the following manner;

By seizure;

By the appointment of receiver; or

By an order in writing prohibiting the deliver of such property to the proclaimed person or
to any one on his behalf; or

By all or any two of such methods, as the court thinks fit.

iii. Immovable property

In case of immovable property the attachment shall be made in following manner

a) Where property to be attached is paying land revenue to the provincial government, its
attachment shall be made through the collector of the district in which such land is situated;

iv. In other cases;

i) By taking possession or

ii) By the appointment of receiver; or

iii) By all or any two of such methods as the court deems fit.

5. Other devices
For the attendance of the parties before the court fax and email services can also be used by
the court if needed.
4. Preclude
Q. 16: Procedure of trial before a Magistrate

1. Preface
The trial of a criminal case means the proceeding which starts when the case is called on
with the magistrate on the bench, the accused in the dock, and the representatives of the
prosecution and the defense if the accused be defended, present in the court for the
hearing of the case.

2. Procedure for conducting trial by a Magistrate

According to section 241 of the CrPC, A Magistrate is obliged to follow the procedure
prescribed in sections 241 to 245 for trial of cases falling in his jurisdiction.

The procedure to be observed by a magistrate for trial of cases is us under

1) Supply of statements and other documents to the accused;

2) Framing of charge in the presence of accused;

3) Conviction of the accused on admission of truth of accusation;

4) Process when the accused does not plead guilty;

5) Evidence ; and

6) Acquittal or sentence

3. cases tribal by magistrate

According to section 190, all magistrates of first class or any other magistrate, whom the
provincial government, on the recommendations of concerned High Court, has so
authorized, may try the following cases:

i) On receipt of complaint which constitutes an offence triable by magistrate

ii) On receipt of report by a police officer concerning any incident which constitutes an
offence triable by the magistrate;

iii) On receipt of complaint from any person other than the police officer mentioned above;

iv) On the bases of personal knowledge or reason to believe of concerned Magistrate.

Section 190 authorize a magistrate to try a case on the basis of police report irrespective of
the fact that the case is cognizable by police or not.
4. Object of Section 190
The object of section 190 is to full empowerment of a magistrate to try cases instituted on
the basis of complaints or the police report so that he may try cases on account of verbal or
written information. He should immediately take cognizance of the offence whenever its
commission comes to his notice.

5. Proceeding on a police report

Under section 190, a magistrate cannot try a case which has neither been brought to his
notice by a complaint or a police report. Therefore, a magistrate is authorized to try a case
on the basis of a complaint or police report.

A magistrate is not bound by a police report and he may direct the police officer to prepare
and submit fresh challan even if investigation branch reported that relevant facts do not
constitute an offence against the accused.

6. Requisites of the written complaint

According to sub-section 20 of section 241-a in all those cases which are instituted upon a
complaint submitted by the complainant in writing, the complainant shall,

A) State the substance of the accusation;

B) Supply the names of his witnesses;

C) Mention the gist of the evidence which he is going to produce before the magistrate
during the trial commenced on his complaint;

D) Within three days of the order of the court passed in this behalf, file as many copies of
the complaint and other relevant documents filed with his complaint according to the
number of accused.

7. Exception
When the complaint has been made by a court or a public officer who is acting in discharge
of official duties assigned to him under the law,

Following information shall not be mentioned in the complaint;

a) Substance of the accusation;

b) The names of relevant witnesses; and

c) The gist of the evidence which is to be produced before the magistrate during the trial.
8. Framing of charge in the presence of accused
Under section 242, the magistrate is bound to ensure presence of the accused before he
proceeds to frame charges on the basis of material available before him. Where the accused
appears before him, the magistrate shall frame formal charge or charges strictly pertaining
to the offence he is being tried. Then the accused shall be asked as to whether he admits
that he has committed the offence he has been charged with on the basis of police report or
written complaint submitted by the complainant.

9. Conviction of the accused on admission of truth of accusation

After the charge has been conveyed to the accused, if he has submitted that he has
committed the offence with which he has been charge under section 243, the magistrate is
bound to reduce into writing his admission as nearly as possible in the words uttered by the
accused. An accused should not be convicted on his admission if he fails to submit
reasonable grounds for his admission.

10. Process when the accused does not plead guilty

According to section 244 , when an accused has been formally charged, and the accused
does not plead himself guilty, magistrate is bound to proceed further with the trial under
this section.

11. When admission of guilt has not been made

When admission of guilt has not been made by accused, the magistrate is bound to afford
hearing to the complainant . then he shall take all evidence which may be produced in
support of the prosecution. The magistrate shall also hear the accused and take into
consideration the evidence which he may produce in his defense.

12. Acquittal
According to section 245, magistrate after examine the evidence referred to under section
244 or any further evidence which he has required to be produced of his own motion and
examine the accused, if finds the accused not guilty of offence charged with, shall record an
order in writing for the acquittal of the accused

13. Sentence
in case the offence, with which the accused has been charged fall within the jurisdiction of
magistrate, he if finds the accused guilty, shall pass sentence upon the accused strictly in
accordance with law.
In case, if the offence do not fall within his competence, the magistrate shall proceed
further under section 439 and after recording his opinion, he shall forward the accused to
magistrate of competent jurisdiction for inflicting lawful punishment upon him.

14. Preclude
Q. 17: Trail by Court of Session

1. Preface
Chapter XXII-A comprising of Section 265-A to section 265-N, and particularly section 265-F,
is to ensure a fair trial not only to the accused by also to the prosecution or, as the case may
be, the complainant, in administering justice in criminal matter and to remove the
misconception that a fair trial means such steps and measures as are to the advantage and
benefit of an accused principle, that justice should be administered in criminal cases,
between the complainant or prosecution and the accused person evenly, for, it should not
be forgotten that it is the prosecution or complainant who sets the bail rolling to restore
tranquility in the society and for seeking relief against excess allegedly done by the accused,
and as such knocks at the door of the court of justice, for a fair trial. A plaint reading of the
aforementioned provision reflect the same view in that it is the right of both the parties to
have a fair trial and there should title in favor of either.

2. Relay Provision
Section 265-A to 265-N Code of Criminal Procedure 1898

3. Meaning of Trial
Trial means a formal judicial examination of evidence and determination of legal claims in
adversary proceedings.

4. Trials before Court of Session to be conducted by Public

Prosecutions
According to section 265-A, where trial initiated before a court of session upon a police
report, the prosecution shall be conducted by the Public Prosecutor.

In AIR 1924 Pat. 283, where the proceedings are initiated on a Police Report, a private
prosecutor has no position at all in that litigation.

5. Procedure in cases trial courts of session u/s 265-B

Following is the procedure followed by the courts of session during trial,

i. Supply of statements and documents to the accused u/s 265-C

a. Where cases instituted upon police report u/s 265-C (1)
Copies of the following documents shall be supplied free of cost to the accused not later
than 7 days before the commencement of the trial namely.

i. The FIR
ii. The police Report

iii. The statement of all witnesses recorded u/s 161 & 164

iv. The inspection note recorded by an investigation officer on his first to the place of
occurrence and note recorded by him on recoveries made.

b. Where cases instituted upon a complaint in writing u/s 265-C (2)

i. The complaint shall

a. state in the petition of complaint the substance of the accusation

b. state the manes of his witnesses; and

c. state the gist of the evidence which he is likely to adduced at the trial; and

ii. Copies of complaint and any other documents which the complainant has filed shall be
supplied free of cost to the accused not later than 7 days before the commencement of the
trial;

iii. And the statements under section 200 or 202 shall be supplied free of cost to the accused
not later than 7 days before the commencement of the trial.

ii. When charge is to be framed u/s 265-D

The court has to frame charge u/s 265-D Cr.P.C, after perusing the police report or
complaint and all other documents and statements filed by the prosecution and if the court
is of the opinion that there is ground for proceeding with the trial the charge could be
framed.

iii. Plea u/s 265-E

The charge shall be read and explained to the accused, and he shall be asked whether he is
guilty or has any defense to make. If he pleads guilty, the court shall record the plea and
may in its discretion convict him.

(iv) Evidence for prosecution u/s 265-F

a. Where the accused does not plead guilty or the court does not convict him on his plea u/s
265-F91)

The court shall proceed to hear the complainant and takes all such evidence as may be
produced in support of the prosecution.

b. Summoning of witnesses u/s 265-F(2)

The court shall summon such persons who are acquainted with the facts of the case and be
able to give evidence for prosecution.

c. When court refuse to summon any witness u/s 265-F(3)

If the court is of opinion that such witness is being called for the purpose of vexation or
delay or defeating the ends of justice.

d. Where the examination of the witness for the prosecution and the examination of the
accused are concluded u/s 265-F (4)

The accused shall be asked whether he means to adduce evidence.

e. Where accused puts in any written statement u/s 265-F(5)

The court shall file it with the record.

f. Where the accused says that he means to adduce evidence u/s 265-F (6)

The court shall call on the accused to enter on his defense and produce his evidence.

v. Summoning up by prosecutor and defense u/s 265

a. Where the accused does not adduce ev8idence in his defense u/s 265-G(1)

The court shall call upon the prosecutor to sum up his case where after the accused shall
make a reply., on the close of the prosecution case and examination of the accused.

b. Where the accused examines evidence in his defense u/s 265-G (2)

The court shall the accused to sum up the case where after the prosecutor shall make a
reply, on the close of the defense caste.

vi. Acquittal or conviction u/s 265-H

a. Where a charge has been framed the court finds the accused not guilt u/s 265-H (1)

The court shall record an order of acquittal.

b. Where the court finds the accused guilt u/s 265-H (2)

The court shall pass a sentence upon him according to law.

vii. Procedure in case of previous conviction u/s 265-I

This section is imperative. It is based on the principle that a prisoner on his trial ought not to
be prejudiced by a statement of a previous conviction suffered by him. It indicates the
importance of the complete exclusion of the knowledge of previous conviction when
weighing the evidence as to the truth or otherwise of the main charge.

6. Preclude
To conclude that trial is the stage where guilt of the accused is determine and it is the right
of both the parties to have a fair trial and the same is reflected by the provisions 265-A to
265-A of Cr.P.C which deals with the procedure of trial by the session court and a fair
opportunity is provided to the prosecutor and the accused to present their case in the court
of session.
Q, 18: Procedure for Arrest

1. Preface
The arrest is sufficient if there is a submission to the custody by word or act8ion, in which
case, there is no need actual touch or confine of the body of such person. An arrest in police
custody does not necessarily mean custody after formal arrest, but also includes some form
of police surveillance and restrictions on the movements of the person concerned by police.
Procedure for arrest of accused viz., (i) commission of offense, (ii) registration of FIR (iii)
Start of investigation (iv) Collection of Evidence, and (v) arrest of the accused for the
purpose of investigation.

2. Relay Provision
Section 46 to 53 and 55 of Code of Criminal Procedure 1898

3. Reason for arrest

a. Matter of Public importance

b. Administration of Justice

4. Definition of Arrest
Confining the body of a person required to be arrested by actual touching of the body by the
police officer.

5. Types of arrest
Following are the types fo arrest;

i. Parole Arrest

ii. Arrest without Warrant

iii. Arrest with warrant

iv. Civil Arrest

v. Re-arrest

Arrest of Vagabonds, Habitual Robbers

6. Arrest now made u/s 46
The general principle of law is that in making an arrest no more force is to be used than is
necessary. It is sufficient if the arresting officer touches the body of the person to be
arrested and even this si unnecessary when the latter summits to the arresting officer’s
custody by word or action.

It is by no means necessary that the arresting officer should, in arresting the person,
immediately proceed to put handcuffs on him with chord of chain, such articles are used as
a means of restraint and their use can only be justified on the ground that they are means
necessary to effect that arrest.

7. Search for Arrest

i. Search of place entered by person sought to be arrested u/s 47 Cr.P.C

This section entitles the police to enter a house, disregarding the provisions of Section. 103
Cr.P.C, which is intended to warrant fair play at the time of making search. The distinction in
case of section 103 the warrant of search is to be obtained from a competent Magistrate
and then the search is to be made, whereas section 47 Cr.P.C, does not enjoin such
formality because it envisages eventualities wherein no recourse can practically be made to
obtain search warrant, and therefore, this provision of law does not make it necessary that a
search under these circumstances should be witnessed by respectable persons from the
locality.

ii. Procedure where ingress not obtainable u/s 48 Cr.P.C

This section provides that if difficulties are placed in the way of a police officer he may sue
force to obtain ingress.

iii. Power to break open doors and windows for purposes of liberation u/s
49 Cr.P.C
This section provides that any police officer or any other person authorized to make an
arrest may break open any outer or inner door or window of any house or place in order to
liberate himself or any other person who, having lawful entered for the purpose making an
arrest, is detained therein.

iv. No unnecessary restraint u/s 50 Cr.P.C

This section provides that the person arrested shall not be subjected to more restraint than
is necessary to prevent his escape.

v. Search of arrested person u/s 51 Cr.P.C

Police is competent to make search of the person of an accused only one under this section.
vi. Mode of searching women u/s 52 Cr.P.C
This section provides that whenever it is necessary to cause a woman to be search, the
search shall be made by another woman, with strict regard to decency.

8. Arrest of Vagabonds, Habitual Robbers etc u/s 55

This section is intended for suppression of habitual bad characters whom an officer-in-
charge of a police station suddenly finds within his circle or about whom he has good cause
to fear that they will commit serious harm before there is time to apply to the nearest
Magistrate empowered to deal with the case under section 112.

9. Remedies for Maliciously arrest

i. Section 491 Cr.P.C 1898

ii. Writ u/Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

10. Preclude
It is clear that the word “arrest”, when used in its ordinary and natural sense, means the
apprehension or restraint or the deprivation of one’s personal liberty. The question whether
the person is under arrest or not, depends not on the legality of the arrest, but on whether
he has been deprived of his personal liberty to go where he pleases, when used in the legal
sense, in the procedure connected with criminal offenses, an arrest consists in the taking
into custody of another person under authority empowered by law, for the purpose of
holding or detaining him to answer a criminal charge or of preventing the commission of
criminal offense. The essential elements to constitute elements to constitute an arrest in
the above sense are that there must be intent to arrest under the authority, accompanied
by a seizure or detention of the person in the manner known to law, which is so understood
by the person arrested. Section 46 Cr,P.C does not contemplate any
Inquiry, Investigation, Trial and its difference

Q. 19 : investigation. Inquiry, Trial

1. Preface
The definition of the word “investigation” is not exhaustive. An investigation by the police
commences with the first step taken by the police-officer in the matter of the offence and
the culprit thereof. The word ‘inquiry’ means to include everything done in a case by a
Magistrate whether the case has been challenged or not. It does not always mean a judicial
inquiry. The word “inquiry must be distinguished” from “investigation” under Chapter XIV
on the one hand and a “trail” on the other. A “trail” is a judicial proceeding which ends in
conviction or acquittal. All other proceedings are inquiries which have various endings
according to circumstances.

2. Relay Provisions
Section 4(1)(k) Cr.P.C 1898 for Inquiry

Section 4(1)(I), 1898 for investigation

3. Inquiry

i. Literal Meaning of Inquiry

a. Research

b. Interrogation

c. Investigation

ii. Meaning of Inquiry

a. Any proceedings conducted by Magistrate

b. Any proceedings conducted by a Court

iii. Definition u/s 4(1)(k) Cr.P.C

“Inquiry includes every inquiry other than a trial conducted under this code by a magistrate
or Court”.

(iv) Object of Inquiry

Determination of truth

(v) Kinds of Inquiry

a. Departmental Inquiry
b. Judicial Inquiry

(vi) Inquiry vs Trial

Inquiry is the proceeding which may be prior to trial.

(vii) Authority to conduct Inquiry

Magistrate or Court

4. Investigation

i. Literal Meaning of Investigation

a. Study

b. Search

c. Inquiry

ii. Meaning of Investigation

a. Proceeding conducted by Police Officer

b. Proceeding for the collection of evidence

iii. Definition of Inquiry

“Investigation includes all the proceedings under this code for the collection of evidence”.

iv. Nature of Investigation

Criminal in nature

v. Object of Investigation
To collect evidence relating to commission of an offence.

vi. Authority to Investigate

The Police officer or any person authorized by a Magistrate not a Magistrate.

vii. Step of Investigation

a. Commission of offence

b. Cognizable offence

c. Registration of FIR

d. Visit of place of occurrence by Police Officer incharge

e. Ascertainment of facts by Police Officer incharge

f. Calculation with reference to circumstances

g. Recovery of any material

i. Arrest of suspected persons

j. Arrest of nominated accused persons

k. Collection of evidence

I. Examination of various persons

m. Reduction of their statement into written form

n. Search or censor of place of occurrence

o. Formation of opinion

p. writing of daily diary (Zimni)

q. Preparation of final report

5. Trial

i. Literal meaning of Trial

a. Attempt

b. Examination by a test

c. Judicial examination or investigation

ii. Meaning of Trial

The judicial proceedings conducted by Court.

iii. Commencement of Trial

Trial starts after submission of challan till announcement of judgment.

iv. End of Trial

a. In acquittal or

b. Conviction

v. Procedure for Trial under Cr.P.C

a. Trial by Magistrate

b. Summary Trial

c. Trial by High Court & Court of Session

6. Distinction between Inquiry, Investigation and Trial
Following are the distinction between inquiry, investigation and Trial

i. Conducting Authority
a. Inquiry. Magistrate or the Court

b. Investigation. Police officer or any person authorized by a Magistrate.

c. Trial. Judge or a Magistrate

iii. Commencement
a. Inquiry. It starts when complaint is filed to the Magistrate

b. Investigation. It starts when FIR is lodged or complaint is made to the Magistrate.

c. Trial. It starts either by framing of charge or arrangement of the accused.

iv. As to meaning
a. Inquiry. Any proceedings conducted by Magistrate or a Court.

b. Investigation. Proceedings conducted by Police Officer.

c. Trial. The Judicial Proceedings conducted by Court.

v. Result
a. Inquiry. It finishes only with the recommendations.

b. Investigation. It finishes with the result but with opinion of the police officer to be
submitted before the Court.

c. Trial. It finishes with the punishment or acquittal.

vi. Purpose
a. Inquiry. Determination of truth.

b. Collection of evidence for reading near the truth.

c. Trial. Finalization of truth and falsity.

vii. Proceedings
a. Inquiry. It is proceedings by Magistrate.

b. Investigation. It is proceeding by Police Officer

c. Trial. It is judicial proceedings.

viii. Framing of Charge

a. Inquiry. In a charge is framed during inquiry.
b. Investigation. In it, no charge is framed.

c. Trial. It starts after farming of charge.

ix. Remedy.
a. Inquiry. Appeal or revision against decision.

b. Investigation. Second inquiry order

c. Trial. Transfer of investigation order

x. Process
a. Inquiry. It is the last process

b. Investigation. It may be 1st and 2nd process.

c. Trial. 1st process

6. Preclude
Under the code investigation consists generally of the following steps; 1. Proceedings to the
spot, 2. Ascertainment of the facts and circumstances of the case. 3. Discovery and arrest of
the suspected offender 4. Collection of evidence relating to the commission of the offence
which may consist of a. the examination of various persons (including the accused) and the
reduction of their statement into writing, if the officer thinks fit, b the search of places or
seizure of things considered necessary for the investigation and to be produced at the trial.
Q. 20: Inherent Powers of Court

1. Preface
Every court, whether civil or criminal, in the absence of prohibition of procedure is to be
deemed to possesses inherent powers embodied in its constitution as may be necessary, to
do justice and to undo the wrong, in the course of administration of justice. The inherent
powers of the court a fairly wide to serve the ends of justice.

2. Relay Provisions
Following is the Relay Provision of CPC regarding inherent power of Court

i. Section 151 of Code of Civil Procedure

Cross Reference:

i. Section 561-A Cr.P.C

ii. Section 16 of General Clauses Act

iii. Art 183 and 199 of 1973 Constitution of Pakistan

3. Meaning of Inherent Power

“An authority possessed, without its being, derived from another”.

4. Inherent Power of Court u/s 151

Sec 151 does not confer any new power upon a court but only save its inherent powers to
do right and undo wrong.

5. Nature of Inherent Power

Jurisdiction of Court u/s 151 is not additional or alternate, and when alternate remedy is
available, the inherent jurisdiction cannot be entertained.

6. Inherent Powers of the Court

The court has the following inherent powers
i. To postpone the hearing of suits pending the decision of a selected action

ii. To stay cross suits on the ground of convenience.

iii. To ascertain whether the proper parties are before it.

iv. To inquire whether a plaintiff is entitled to sue as an adult.

v. To entertain the application of a third person to be made a party.

vi. To allow a defense in formal pauperism.

Vii. To decide one question and to reserve another for investigation, it did not require any
provision of the code to authorizes a judge to do what in this matter was justice and for the
advantage of the parties.

viii. To remand a case to which order 41, order 23 or order 41, order 25 applies.

ix. To stay the drawing up of the court’s own orders or to suspend their operation, if the
necessities of justice so require.

x. To apply the principles of res judicata to cases not falling within section 11 of the code.

xi. To add a party, or to transpose parties, or where the appeal is filed against a dead person
or persons to allow the appellant to add legal representatives of the deceased as parties in a
proper case.

xii. To modify a scheme prepared by itself under section 92.

xiii. To set aside a court sale on the ground of the minority of the purchaser.

xiv. To order security for costs in a revision application in a proper case.

xv. To direct restitution.

7. When inherent powers may be used u/s 151

Courts can exercise inherent powers u/s 151 in the following circumstances.

i. In absence of express provisions of law

Inherent powers can only be exercised by the court when there is no express provision in
the code.

ii. To give effect to any order under CPC

Inherent power may be exercised by the court to give effect to any order under CPC.

iii. To prevent abuse of Process of any Court

Court may exercise powers u/s 151 to prevent abuse of process of any court.

iii-a. Meaning of abuse of process

The term abuse of process of any court has not been defined by the code. It may be define
as under

“Misuse and colorable use of the powers and procedure or usurpation of jurisdiction not
vested in the court.”
Iii-b. Who may commit abuse of process of court?
Abuse of process of court may be committed either

a. By the court or

b. By the party

iv. To secure ends of justice

Inherent powers may be exercised by the court, to secure ends of justice, and it necessarily
means, justice administered by the court, and not justice in abstract sense.

8. Limitation or Restrictions against the arbitrary exercise of Inherent

power
Following are the restrictions on the inherent powers of the court

i. Inherent power can’t be extended to make a new law on the subject

ii. It cannot be used against the express intention of the legislature.

iii. It cannot override the express provision of law

iv. It cannot be used where there is remedy is provided

v. Inherent powers should not affect the substantive rights of the parties.

vi. It should not be exercised, to assist a party guilty of laches or delay.

9. Instances of Inherent Powers

Following are some of the instances of inherent powers of court u/s 151 cpc

i. Correction of Error
Court can correct error in the judgment and decree, or even correct its own order, or to
recall an erroneous order in an appropriate case.

ii. Issuance of Injunctions

Court may issue injunction in cases not falling under order 59 Rule 1.

iii. Determination of Jurisdiction

Courts have inherent power to determine the question of their own jurisdiction, and it may
also set aside an order passed without jurisdiction.

iv. Production of Additional Evidence

Court in exercise of its inherent jurisdiction under section 151 may allow production of
additional evidence for doing justice between the parties.
10. Appeal
Order passed u/s 151 is not appealable, unless they fall within the definition of decree or an
appealable order.

11. Revision
Generally revision will not be competent against order u/s 151 but in appropriate cases
revision may lie.

12. Limitation Period

The law of limitation will not bar the exercise of inherent powers.

13. Preclude
By the above discussion it can be said that the courts have inherent powers to take all steps
to execute its own order, as this power flows from the jurisdiction itself. The power u/s 151
is discretionary in nature, though this discretion has to the exercised only to secure ends of
Justice. Section 151 is exercise able only with respect to procedural matters and an
application may be filed u/s 151, but in a proper case, a second application can be barred by
Res Judicata.
Q. 21: Remand

1. Preface
To check police from exercising powers in arbitrary manner, provisions have been provided in
Criminal Procedure Code. Detention of an accused arrested without warrant cannot cross the limits
of 24 hours. In fact, this provision has made police duty to complete investigation within twenty four
hours, if police fail to complete investigation within twenty four hours, police is to present arrested
person to magistrate who may pass for his order of remand. At this point, it is very important thing
that remand cannot exceed more than 15 days.

2. Relay Provisions
Section 167, 173, 344, 61 and 62 of Code of criminal Procedure,1898

3.General Meaning of Remand

The act or process of sending (a prisoner or accused person) back into custody, as to await trail or
further investigation.

4.Lexical meaning of remand :

According to black’s law dictionary:

“The act or an instance of sending something back for further action”.

5. Remand Under Section 344

Grant of remand in every case should not be a medical exercise and it must be ascertained by the
Magistrate that the accusation is will founded and remand will render substantial assistance in
investigation of the matter.

Explanation of Remand

i. Detention exceeding 24 Hours

An accused should not be detained for more than 24 hours without a special order of a magistrate. If
it is done, will be absolutely unlawful.
ii. Duty of Magistrate
Citizens have certain fundamental rights guaranteeing them freedom, which it is the duty of the
court of safeguard.
iii. Detention and Formal arrest
There is no difference between the detention and the formal arrest, when the person is detained by
the police, he is arrested, and it is not necessary that in order to make the arrest legal, he should
further be handcuffed or put in the police or judicial lock up.

iv. Computation of 24 Hours

The 24 hours of detention are to be counted up to the time when the accused leaves the police
station on the way to the Magistrate.

v. Remand by Magistrate
A magistrate can grant a remand to the police only when the accused in produced before him. He
cannot great a remand by himself going to the police officer where the accused is being detained.

6. Remand under Section 167 Cr.P.C

i. Person Presenting himself before the Magistrate

Magistrate in the exercise of the discretion allowed to him under the law, hands over the custody of
a person to the police for a limited time for a particular purpose, he is legally competent to do so.

ii. Magistrate must be satisfied

While granting a remand a Magistrate must have before him copy of the entries in the diary. It
means that the Magistrate has to scrutinize the act of the police and see whether the act was legal
and proper and further formalities required by law had been complied with.

It is the duty of the Magistrate to study the police diaries and to see for himself as to what are the
accusation against the accused and what is the evidence which the police has been able to secure to
justify the grant of remands.

iii. Accused to be forwarded

When the police officer completed his duty of investigation within a period of 24 hours, it is his duty
to forward the accused before the Magistrate.

iv. Production of Accused

According to High court Rules and orders Volume-III. When a prisoner is produced before a
Magistrate for remand, it is duty of the Magistrate to inform him that he is a Magistrate and that a
remand has been applied for and whether the accused has any objection to the grant of remand.

The remand is to be written in the presence of the accused himself. If the accused wishes to be
represented by a counsel the Magistrate should allow him time for the counsel to appear and argue
the matter before him.

v. Record to be forwarded to Magistrate

A police officer should send along with an accused copy for the entries the diary which he is bound
to keep under section 172 of Cr.P.C.

vi. Magistrate who may grant Remand

The magistrate to whom an accused person is forwarded under this section may, whether he has or
has not jurisdiction to try the case from time to time authorize the detention of the accused in such
custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.

vii. Remand to whose custody

The magistrate, authorizing the detention of the accused has competed freedom to remand the
accused to whatever custody he thinks fit.
viii. Remand for Fifteen Days
If the Magistrate is not completed within 15 days to police may release the accused under section
169 or they may send him jurisdiction to try the case or hold an inquiry, with a report under section
173 who may remand the accused under section 344.

7. When Remand may not be ordered

The following are the instances where remand may not be ordered

a. The presence of the accused is necessary to finish the investigation.

b. To get from the accused a confessional statement

c. A mere expectation that time will show his guilt.

d. That the accused promised to tell the truth.

e. Verify a confession under section 164.

8. Kinds of Remand
Following are the two kinds of Remand

a. Physical Remand
When Magistrate sends accused into custody of police, such sending of accused is called Physical
Remand.

b. Judicial Remand
If Magistrate send to judicial jail or lockup, such send accused is call Judicial Remand.

9.Preclude
Medical Jurisprudence
Q. 22: Injury and its Kinds under Medical jurisprudence

1. Preface
Injury and wound are usually intermixed with each other. Reality is that these two terms are
different from each other. Main difference between them is that all wounds can be injuries
while all injuries cannot be wounds. There are various kinds of injury and different
punishment has been provided for each kinds of injury.

2. Meaning under section 44 of Pakistan Penal Code

The word injury denotes any harm whatever illegally caused to person in body, mind,
reputation or property.

i. Meaning under Medical Jurisprudence

An injury means a solution or disruption of anatomical continuity of any tissues of body.

3. Different Kinds of Injury

Under Pakistan Penal code, different kinds of injury have been mentioned in form of itlaf-i-
udw, itlaf-i-salahiyyat-udw, shajjah, jurh and all kinds of other hurt. As far as medical
jurisprudence is concerned, followings are kinds of injury.

i. Thermal Injury

For explanation of thermal injury, following points are important

a. Meaning

Tissue injury, which results from application of heat in any form to external or internal
surface of heat, is termed as thermal injury.

b. Forms

Followings are different forms of thermal injury:

b-i. Injury due to explosion

Such injury can be cussed by flame, missiles, blast or hot gases.

b-ii. Radiation Burn

Radiation burn can be caused by those electric voltages currents which are produced during
thunderstorm, and which reach earth and cause injuries to people.

b-iii. Chemical Burn

When injury is caused by some chemical substance like acid, such injury is called chemical
burn.

b-iv. Electric Burn

Electric burn can be due to lightening, sparks, flash or electric contract.

b-v. Scald

If moist heat, which some boiling liquid or gaseous form of liquid produces, causes some
injury, such injury is called scald.

b-vi. Simple Burn

When hot material or flame ceases some injury, such injury is called simple burn.

ii. Regional Injury

For explanation of regional injury, following points are important

a. Meaning

Regional injury means that injury, which can be caused on different parts of human body.

b. Forms

Following are different forms of regional injury:

b-i. Face

Injuries on face are considered grievous hurts, and they can be caused on eyes, nose and
teeth.

b-ii. Neck

Usually injuries on neck are in incised forms. In most of cases, these injuries are homicidal or
suicidal ones. However, such injuries can also be accidental ones in some cases.

b-iii. Chest

Chest injuries can be caused on heart, ribs, and lungs and so on. Such injuries can be in
forms of closed wounds and open wounds. In most of cases, such injuries are accidental or
homicidal ones. However, such injuries can also be suicidal ones in some cases.

b-iv. Head
Most of head injuries are accidental or homicidal once. Such injuries can be in forms of
injuries to scalp, skull and brain.

b-v. Bones

Bone fractures are bone injuries.

b-vi. Abdomen

Injuries to abdomen are either closed injuries or open injuries. Blunt objects can cause
closed injuries while open injuries are stab injuries.

iii. Mechanical Injury

For explanation of mechanical injury, following points are important

a. Meaning

If some injury is caused to human body through physical violence, such injury is called
mechanical injury.

b. Forms

Some forms of mechanical injury are abrasions, stab wounds, bruises, incised wounds,
lacerations, fabricated wounds, firearm wounds, and defense wounds.

iv. Accidental Injury

For explanation of accidental injury, following points are important.

a. Meaning

These are those injuries, which are caused by traffic accidents.

b. Forms

Injuries of scalp, lacerated wounds and chest injuries are different forms of accidental
injuries.

4. Fabricated Injury
Following points are important for explanation of fabricated injury.

i. Meaning

When some person causes injury on his own body or allows another person to cause some
injury on his body, such injury is called fabricated injury. It reveals that such injury is, in fact,
forged or fictitious injury.
ii. Forms

As some person can cause fabricated injury on his body or another person, with his
permission, can cause such injury, therefore fabricated injury can be self inflicted injury or
can be friendly handed injury,.

ii. Purpose

Main purpose of fabricated injury is to prove victim’s false charge against accused.

iii. Fabricated Injury & Chare

Fabricated injury remains fruitless to support charge against accused especially when
medical legal report reveals that such injury is either self inflicted one or friendly handed
one.

5. Difference between Ante-mortem & Post-Mortem Injuries

Following are main differences between ante-mortem and post-mortem injuries

i. Freezing of blood

Blood, which comes out of ante-mortem injury, freezes around injury and surrounding of
injury while blood, which comes out of post-mortem injury, does not freeze but it will be
flowing.

ii. In case of Blunt weapon

If ante-mortem injury has been caused by some blunt weapon, blood will freeze under skin.
However, blood will not freeze under skin when post-mortem injury has been caused by
blunt weapon.

iii. Color of Injury

Color of ante-mortem injury will be pink where as color of post-mortem injury will be white.

iv. Edges of Injury

Edges of ante-mortem injury will be open due to reaction of skin and muscular tissues, but
edges of post-mortem injury will not be open.

v. Swelling

In case of ante-mortem injury, there will be swelling. However, swelling will not be present
very near to post-mortem injury.

vi. Skin & Muscular Form of Injury

Skin and muscular form of ante-mortem injury will be shrunk and turned out while skin and
muscular form of post-mortem injury will not be shrunk and turned out.

6. Preclude
To conclude, it can be stated that different punishment has been provided against causing
of every injury. Therefore, assessment of kinds of injury and nature of injury is very
important for final Preclude of trial especially when criminal case is against allegation of
causing of some injury. Reason is that such assessment decides which punishment can be
awarded against accused.
 Q.23: Finger Prints

1. PREFACE:

2. RELAY PROVISION:

Ch: XI sec: 144

Ch: X sec: 133
The Code of Criminal Procedure, 1898

3. CROSS REFERENCE:

Sec: 134
The Code of Criminal procedure 1898
Sec: 91
The Code of Criminal Procedure 1898
Sec: 268
Pakistan penal Code 1860

4. SCOPE AND APPLICATION OF SEC:144:

1999 PCrLJ 218

“Magistrate not empowered to decide dispute of civil nature”

5. WHEN POWER TO BE EXCERISED:

2000 KLR (CR) 344

“Powers can be exercised for public good and interest of country”
 6. WHEN ORDER BE ISSUED:

 In urgent case of nuisance

 Apprehended danger

PLD 2001 Pesh 19

“Order under sec: 144(4) and (5) should not be passed unless absolute
necessary i.e. to meet emergent danger when sufficient and adequate
remedy is not available”

7. BASIS OF THE ORDER:

Salus populi suprema lex

Meaning
Welfare of people is supreme law

8. WHAT CONSTITULTES PUBLIC NUISANCE:

Sec: 268 of Pakistan Penal Code 1860

 A person must do an act or must be guilty of an omission
 Such act or omission must cause
i. Common injury, danger or annoyance
1. to the public
2. to the people in general who dwell or occupy property in
the vicinity
ii. Injury, obstruction danger or annoyance to person who may
have accession to use any public right.

9. WHO MAY PROCEED UNDER SEC:144:

 Zila Nazim:
Substituted by Ord. XXXVII of 2001

 Written recommendation:
Of district administrative officer or assistant district
administrative officer.
 2. substituted by Baluchistan Ordinance XXXII of 2001

10. REASONS OF PROCEEDING UNDER SEC: 144:

 Urgent cases of danger

 Apprehension of danger
 Sufficient ground for proceeding
 Immediate prevention
 Speedy remedy is desirable

11. ORDER AND ITS CONTENTS UNDER SECTION 144:

 Form of order:
Order made under this section will be written in form

 Nature of Order:
Order under this section is prohibitory and preventive

 Contents of Order:
i. Be in writing and signed
ii. Be specific and definite
iii. Staling material facts
iv. To be co extensive with the prevailing emergent situation

 Direction made under orders:

i. To abstain from a certain act
ii. To take certain order
iii. With certain property
iv. In his possession or management

 effect of such order

Such direction would likely to
i. prevent
ii. attempt to prevent
1. obstruction
2. annoyance
3. injury
4. risk of obstruction
5. annoyance, injury to any person lawfully employed
 6. danger to human life
7. health or safety
8. disturbance of public tranquility
9. risk of
10.an affray
 Order How made:
Served in a manner stated in 134 of the Code of Criminal
Procedure, 1898 i.e service or notification or order

 Order When ex pate:

Where situation is of gross emergence so that notice or summons
are not feasible to serve than an ex-prate order is issued or made.

 To Whom Order Directed:

May be directed to a particular individual or to generally to public.

 Rescission or Alteration of order:

Zila Nazim

Suo Moto on application

May

Rescind Alter
 Order

Made by Predecessor in
Him office

 Recession of Application:

Application

Opportunity of in person or through

Hearing pleader

To Give Reasons

If Zila Nazim

Partly rejects wholly rejects

Shall
 Record in writing
Reasons for doing
So
 Duration of Order:

Order

Two consecutive not more than 1

Days in a month in a month

If otherwise directed
by Provincial Government

12. PREVENTION OF PUBLIC NUISANCE BY MAGISTRATE:

[Sec: 133]
 Who is Empowered:
Magistrate of 1st class

 Source:
i. Receipt of police report
ii. Or other information
iii. On taking such evidence

 Nature of Order:
Conditional order

 In Case of Refusal:
Magistrate may modify or set aside such an order

 Mode of Service of Order:

As provided for summons

 To show cause to whom order directed:

 To whom such order is directed he has three following options
i. Musty carry out order
ii. Show cause against the order
iii. He may apply for a jury

 Penalty for non compliance under sec:188:

[Sec: 136]
i.e. disobedience of order duly promulgated by public servant

 Procedure where he appears to show cause or claims injury:

[Sec: 137 and 138]

Procedure

He appears to He Claims
Show cause jury [sec: 138]
[Sec: 137]

Magistrate magistrate uneven numbered not less

than
Satisfied not satisfied jury five

For order with the

to be un evidence
-reasonable fix time for giving order
Unless extended by giving
Good and sufficient reasons
He may stop he shall
Fur her pro make order
-ceeding Absolute If magistrate is satisfied with
the order he shall made such
order absolute

j. Effect if absolute order:

 Order

Made absolute under

Sec: 136 Sec: 137 Sec: 139

Magistrate shall

Give Notice to whom order

Was directed

To obey within fixed time

Non obedience causing

Penalty under sec: 188
Of PPC

13. Preclude Remarks

 ‫آپ سب کی دعاؤں کا ہمہ وقت طلب گار‬

‫لیکچرار‪ :‬مــبشراقبال‬
‫ایڈووکیٹ ھائی کورٹ‬
‫‪LL.B, LL.M, MSC, Dipl Communication Skills‬‬

‫آفس‪ :‬فاطمہ اینڈ اقبال الء چیمبر الھور‬

‫ایڈریس‪ :‬ھجویری ٹاور بیسمنٹ ‪ 10-B‬چوبرجی چوک‬
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