JUDICIAL PROCEEDINGS IN CRIMINAL CASES IN PAKISTAN

Muhammad Munir
Abstract
A criminal trial is the core of a criminal case in the adversarial justice system. This work

elaborates how the criminal courts take cognizance of a criminal case in different types of

offences in the Pakistani legal system. It discusses the types of criminal trials and highlights

various stages of the trial. It explains the commencement of trial, supply of documents/copy of

evidence to the accused, framing of charge, recording plea of the accused, conviction on his

guilty plea, summoning the prosecution evidence, recording of evidence during the trial,

examination of the accused, recording his statement under section 342 Cr.P.C, and his defence

evidence when he wishes so, hearing final arguments, rendering the final judgment of acquittal

or conviction and sentence. It also explains the role of the public prosecutor; how the trial is

conducted by the prosecution and the defence? It discusses the role of the trial judge, especially

his power to acquit the accused at any stage of the trial under section 249-A and 265-K Cr.P.C.

and who can testify in the trial under the Qanun-e-Shahdat Order. Moreover, it also explains

what evidence a judge should accept in a criminal trial.

Key Words


Professor at the Department of Law, International Islamic University, Islamabad. Email:
muhammadmunir@iiu.edu.pk. He wishes to thank Dr Muhammad Ramzan Kasuri, Assistant District Public
Prosecutor (ADPP) Anti-Terrorism Court, Rawalpindi for his comments on an earlier draft. He is very thankful to
Mr. Asim Murtaza Cheema, Research Officer Lahore High Court for his help in providing many important cases for
this work.

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Criminal trial, Pakistani legal system, accused, Code of Criminal Procedure, Cr.P.C., Magistrate,

Prosecution, Prosecutor, Examination in chief, cross-examination, re-examination, Public

Prosecutor, Police Report, Private Complain.

INTRODUCTION
The enforcement of criminal law ensures maintaining peace and tranquility in the society. It

provides protection of life, honor, liberty and property of the citizens which are fundamental

rights of every citizen. It gives proper sense of security and protection to citizens and strengthens

the rule of law in a nation state. It is considered an essential component of the civilized nation to

establish the rule of law and implement the ‘social contract’ between the citizens and the state.

The main purpose of a criminal trial is to determine the guilt and innocence of the accused. There

can be no punishment without a fair trial by an impartial and neutral judge. The fair trial has

become the fundamental right of every citizen. In Pakistan, for holding of fair trial,

comprehensive rules of procedure and evidence are provided through ordinary laws, rules,

regulations, and judicial interpretation. The main focus of this work is to discuss how a criminal

trial is conducted in Pakistan; what are the types of criminal trials and what are the different

stages? What is the role of area magistrate and trial judge, especially the powers of a trial judge

to acquit the accused at any stage of the trial u/s 249-A, 265-K, and 561-A of the Cr.P.C.? What

is the role of public prosecutor and defense lawyer during a criminal trial? In addition, it also

explains the law of bail in criminal cases, declaring the absconders as proclaimed offender (PO),

and standard of evidence as well as the quantum of the punishment.

COGNIZANCE OF CRIMINAL CASE BY COURTS

According to Section 190 of the Cr.P.C., only the Area Magistrate can take cognizance of a

criminal case in his/her jurisdiction. The provisions of this Section provide that the Magistrate

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can take cognizance of an offence, (a) “upon receiving a complaint of facts which constitutes

such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon

information received from any person other than a police officer or upon his own knowledge or

suspicion that such offence has been committed which he may try or send to the court of

Sessions for trial”. Where the trial is exclusively triable by the Court of sessions, the Magistrate

will forward the said case to the Court of Sessions through reference without recording any

evidence. The taking of cognizance of the criminal case is pre-trial exercise carried out by a

competent Magistrate. The word ‘cognizance’ is “a term of art implying application of mind to

facts of a case in order to determine whether facts disclosed constituted an offence triable

exclusively by the Court of Sessions in which case the Magistrate is bound to send the case to

Court of sessions for trial”.1 According to the provisions of Section 193 of the Cr.P.C., the Court

of Sessions could not take directly the cognizance of any criminal case even if the case is

exclusively triable by it. Under this Section, a complete and clear bar is placed on taking

cognizance by the Court of Sessions in its original jurisdiction.2 Thus, in Pakistan, only a

Magistrate can take cognizance of a criminal case and no one else except someone who is

especially empowered with magisterial powers such as a judge of Anti-terrorism Court.

TYPES OF OFFENCES

Under Section 4(1)(O) of the Code of Criminal Procedure (Cr.P.C.), 1898, an offence is “an act

or omission made punishable by any law for the time being in force…”. The main legal

principles of criminal law are: No crime without law (Nullum crimen sine lege) in latin and no

punishment without law (Nulla poena sine lege). Thus, in Pakistan there is no concept of

1
Aijaz Ali v the State, 2020 PLD 491.
2
Syed Azhar Hussain Shah v The State, 2019 SCMR 537.

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common law offence. In other words, all offences are statutory offences. The main Code

detailing with offences is the Pakistan Penal Code (P.P.C.), 1860 as amended up-to-date. Crimes

are divided according to their seriousness into cognizable (in which the police may arrest and

investigate without warrant) and non-cognizable (in which a police officer may not arrest

without a warrant).3

TYPES OF CRIMINAL COURTS

There are three types of criminal courts in every province of Pakistan at the District level: Courts

of Sessions, Courts of Magistrates, Special Courts besides the High Court at every province.

Section 6 of the Cr.P.C. provides different classes of criminal courts besides the High Court and

the courts constituted under any law other than the Cr.P.C. for the time being in force. There

shall be two classes of Criminal Courts in Pakistan, namely (I) Courts of Sessions, and (II)

Courts of Magistrates. There shall be the following classes of Magistrates, namely: (i) Magistrate

of the first class; (ii) Magistrate of the second class and Magistrate of the third class. Prior to

2001, there were two types of Magistrates: Executive and Judicial but after the Devolution Plan

of General Musharraf - the then Chief Martial Administrator, the courts of Executive Magistrates

and District Magistrate were abolished from all the provinces, however, in Islamabad Capital

Territory, both the types of Magistrates: Executive and Judicial still exist. There are also some

courts of Special Magistrates including Magistrate of Section 30 and mobile courts. Section 14

of the Cr.P.C. provides that “The provincial Government on the recommendation of High Court,

confers upon any person including a former Executive Magistrate, all or any of the power

conferred or conferrable by or under this Code on a Judicial Magistrate in respect to particular

3
For details, see, Muhammad Munir, “Police Powers and Investigation in Criminal Cases in Pakistan”, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3974412 (last visited 11 January 2022).

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cases or to a particular class or particular classes, or in regard to cases generally in any local

areas.” They are called Special Judicial Magistrates. Section 30 of the Cr.P.C. provides that “the

provincial Government may invest any Magistrate of the first class with power to try as a

Magistrate all offences not punishable with death”. The Magistrate empowered u/s 30 are called

Magistrate Section 30. The Courts of Magistrates are subordinate to the Sessions Judge who can

distributes work among them.

TYPES OF CRIMINAL TRIALS

There are two types of criminal trials: Summary Trial and Regular Trial. Crimes are classified as

indictable and summary offences which reflect a distinction between serious and minor offences.

Classification of summary and regular trials reflects the nature of the offence and seriousness. A

Summary trial is for minor offences. Chapter 22, Sections 260 to 265 of the Cr.P.C. deal with

summary trial. Sections 260 and 261 deal with offences which can be tried summarily by the

Magistrates and Benches of the Magistrates. Sections 262 to 265 provide the procedure for

summary trial. Regular trial can be divided into two types: magisterial trial and Sessions Trial.

Chapter 20, sections 241 to 250 deal with procedure of criminal trial before Magistrates and

Chapter 22-A, sections 265-A to 265-N deal with procedure of criminal trial before the Courts of

Sessions and High Courts. Prior to discussing detailed procedure of regular criminal trial

Magisterial and Sessions trial, it is appropriate to discuss the various stages of a criminal case.

STAGES OF THE CRIMINAL CASE

There are two phases of the criminal case: administrative phase and judicial phase. The

administrative phase includes the investigation and assessment of prosecution prior to

forwarding it to the court. Judicial phase starts when the case is submitted to the court for trial. In

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judicial phase, there are some pre-trial proceedings and trial proceedings. Prior to start regular

trial, some pre-trial proceedings are necessary such as determination of the place of trial, taking

cognizance of the case by the Area Magistrate, issuing the process to procure the attendance of

the accused persons, and other matters such as supplying copies of the statements of the

witnesses and documents to the accused and his counsel, fixing dates of the hearing, and

determining the question how to proceed with the trial of the complaint and police cases arising

out of the same transaction.

The trial stages comprises of commencement of trial, framing of charge, recording plea

of the accused, conviction on the basis of guilty plea of the accused, summoning the prosecution

evidence, recording examination-in-chief and cross-examination of witnesses, examination of the

accused u/s 342 Cr.P.C., recording the statement of the accused on oath u/s 340(2) of the Cr.P.C.

and defence witnesses where the accused so desires, final arguments of the prosecution and

defence, acquittal or conviction, and sentence of the accused with final judgment. After brief

discussion of the stages of the criminal case, the details procedure of the regular trial is

elaborated. First, the procedure of Magisterial trial is discussed followed by procedure of the

Session Trial.

MAGISTERIAL TRIAL

Chapter 20 regulates the criminal trial before the Courts of Magistrates. The provisions of this

chapter are mandatory in nature and shall be complied in letter and spirit to ensure the fair trial

and any breach thereof will vitiate the trial. After taking cognizance or receiving case file by the

trial Magistrate, he is bound u/s 241-A Cr.P.C. to supply the statements and documents to the

accused seven days prior to commence the trial. Section 241-A of the Cr.P.C. provides two types

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of cases: cases instituted upon police report and cases instituted upon a complaint in writing. The

court will supply the following documents to the accused persons:

Supply of documents in Police Case Supply of document in private Complaint

case
a. Copies of statements of all witnesses a. Copies of the complaint to every
recorded u/s 161 and 164 of the accused.
Cr.P.C. b. Copies of other documents which
b. Inspection Note recorded by the were annexed with the complaint.
Investigating Officer on his first visit
to the place of occurrence.

COMMENCEMENT OF TRIAL: FRAMING OF CHARGE

Seven days after the supply of documents to the accused persons, the Court of Magistrate can

frame a formal charge against the accused u/s 242 of the Cr.P.C. It is a mandatory requirement of

law and starts the beginning of a criminal trial. The accused is formally charged of the

offence(s). Form and contents of charge are in Sections 221-227 Cr.P.C. In cases triable by a

Magistrate, charge is framed under section 242 Cr.P.C. The requirement of law is that a charge

should state the offence committed by the accused and mention the specific name, section and

sufficient description of the offence. The charge must allege all facts which are essential factors

of the offence in question but there is no set yardstick fixed qua the particulars which should be

mentioned in the charge as it depends upon the circumstances of the case. Magistrates may

preferably adopt the language of the relevant section in which charge is being framed. The basic

purpose of framing of charge is to give precise information of allegation to the accused which

enable him to plead guilty or demand trial.

After the charge is framed and read over to the accused in the language he understands,

the Magistrate shall record plea of accused in the words nearest possible as uttered by him. When

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the accused pleads guilty during the course of trial in addition to his plea, such plea of guilt

should be recorded in questions and answers form and in the exact words of the accused in order

to find out what the accused exactly meant by pleading guilty and in absence of that the Court

cannot convict him on the basis of such plea. Notably, obtaining of signature or thumb-

impression on the plea of accused is not a legal requirement but it preferred that Magistrate

should adopt such practice of taking signature or thumb impression of the accused. A plea of

guilt can only be recorded where the accused raises no defence at all. Where Court finds even the

smallest doubt in the veracity or genuineness of admission of guilt, asserted by the accused, the

Court may call upon the prosecution to prove the case. Section 243 of the Cr.P.C. provides

discretionary power to the Magistrate to convict the accused on his admission or not. The

Magistrate is not bound to convict the accused on his guilty plea. In case, the magistrate does not

convict the accused on his guilty plea or the accused demand his trial, “the Magistrate shall

proceed to hear the complainant (if any) and take all such evidence as may be produced in

support of the prosecution and also to hear the accused and take all such evidence as he produces

in his defence.”

PROCEDURE WHEN THE ACCUSED PLEADS NOT GUILTY

Where the accused does not plead guilty or does not admit the commission of the offence, the

hearing of the case commences and the trial begins (Sec.244, Cr.P.C.), the trial shall proceed and

the Court shall hear the evidence of the prosecution and defence. Thereupon, the Court shall

decide the matter which may culminate into acquittal or conviction of the accused. Where

accused remains silent on the question of plea of charge, it may not be admission in proper sense.

To remain silent is the right of accused. As a precautionary measure, in such cases, the trial court

should proceed to record prosecution. After the charge is framed and the accused pleads not

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guilty or when the Court thinks that evidence should be procured, prosecution leads its evidence

and prosecutes the accused in the Court of law. The Magistrate can summon any witness or any

document on the application of any party: prosecution or defence, however, the Magistrate may

require from the party who submitted application for summing of witnesses or documents to

deposit reasonable expenses but the accused is not bound to deposit such expenses if the offence

is punishable with the imprisonment exceeding six months. The statement which was recorded

u/s 164 of the Cr.P.C. “if it was made in the presence of the accused and if he had notice of it and

was given an opportunity of cross-examining the witness, may, in the discretion of the court

(Magistrate), if such witness is produced and examined, be treated as evidence in cases for all

purposes.”

After prosecution evidence is finished, prosecution may close their side. The accused shall then

be asked if he has to lead any defence and incriminating questions may be placed before him 4

and if he leads his defence, such evidence shall be recorded.5The defence evidence then closes

and stage is set for final arguments. Thereafter, the Court gives its findings in the shape of a

judgment. The Magistrate can acquit the accused or convict and sentence him after recording the

evidence prosecution and defence if produced by the accused and after examining the accused

according to the law.

In case of private complaint, Section 247 of the Cr.P.C. empowers the Magistrate to acquit

the accused or adjourn the case if the complainant does not appear before the court for hearing.

The complainant can withdraw his case prior to the final judgment or order with the permission

of the Magistrate who shall satisfy that there are sufficient grounds to permit the complainant to

4
Section 342, Cr.P.C.
5
Sec. 340(2), Cr.P.C.

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withdraw and he shall acquit the accused on the withdrawal of the complaint u/s 248 of the

Cr.P.C. Section 249 empowers the Magistrate to stop the proceedings of the criminal case

instituted otherwise than upon complaint, at any stage without pronouncing any judgment either

of conviction or acquittal after recording reasons to doing so and upon stoppage of the

proceedings, he may discharge the accused.

Magistrates are provided with a special power u/s 249-A of the Cr.P.C. to acquit the accused

at any stage of the criminal case. The Section provides that “Nothing in this Chapter shall be

deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after

hearing the prosecutor and the accused and for the reasons to be recorded, he considers that the

charge is groundless or that there is no probability of the accused being convicted of any

offence.” Under this Section notice to the prosecution is necessary. The Magistrate must hear the

prosecution and accused before passing order of acquittal under this section. There are two

grounds of acquittal: that the charge is baseless or no there is no probability of conviction of the

accused under any offence and that the Magistrate must record reasons of the acquittal of the

accused while exercising this special power. This special power was introduced in 1977 in the

Cr.P.C. with the intent to empower the Magistrate to actively play his role in the dispensation of

substantial justice and not become a silent spectator in the hands of the parties. Thus, this power

was granted to minimize the effect of adversarial nature of justice in which the judge is a silent

neutral umpire between the parties.

If the acquitted accused is on bail, his bail bonds in the case shall stand cancelled and surety

is to be discharged. Article 13 of the Constitution of Pakistan, 1973 provides that no person shall

be prosecuted or punished for the same offence more than once. Protection against double

jeopardy is embodied under said Section 403, Cr.P.C. Conviction is followed by sentence. The

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Magistrate can direct the complainant or the person who provided the information for

registration of case to pay compensation to the accused on his acquittal if he is of the opinion that

the accusation against the accused was false and either frivolous or vexatious.

TRIAL IN SESSIONS COURT

In 1976 a new chapter 22-A and sections 265-A to 265-N were inserted in the Cr.P.C. which

provided procedure for trial before the Court of Sessions and the High Courts. The provisions of

Section 265-A, carries a specific stipulation that every trial initiated upon police report before a

Court of Sessions shall be conducted by the Public Prosecutor (PP). Therefore, the prosecution of

a private complaint may be conducted by the private counsel of the complainant.6 The Provisions

of Section 265C require the court to supply the copies of the statements and the documents to the

accused seven days before the trial starts. The court will supply the following statements and

documents to the accused:

Police Case Private Complaint

a. Copy of the first information report a. Copies of the complaint;

(FIR); b. Copies of documents annexed with the
b. The Police Report (Challan); complaint;
c. Statements of witnesses recorded u/s c. Statements under sections 200 and
161 and 164 of the Cr.P.C.; 202 of the Cr.P.C.
d. Inspection note recorded by the I.O.
on his first visit to the place of
occurrence and the note recorded by
him on recoveries made, if any.

The provisions of Section 265-D mandates that if the court after perusal of the case files either

police report or private complaint along with the statement of the witnesses and other documents

6
Muhammad Shafi v The State, PLD 1981 Kar. 221.

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submitted by the prosecution is of the opinion that sufficient grounds exist for trial of the

accused, it shall frame the charge against the accused. After framing of charge, the court shall

read and explain the same to the accused and ask him whether he pleads guilty or not guilty.

Section 265-E empowers the court to record the guilty plea of the accused and convict him. The

said Section gives discretionary power to the court to convict the accused on his guilty plea.

Where the court does not convict the accused on his guilty plea or where the accused does not

make any such plea, the court shall summon the prosecution evidence and record it. The court

first records the prosecution evidence in the presence of the accused and give him the

opportunity to cross-examine the prosecution witnesses. On the closure of the prosecution

evidence the court may examine the accused person u/s 342 Cr.P.C. and record his statement. In

this statement, the accused is also asked whether he wants to appear in the witness box u/s 340(2)

for recording his statement on oath and also asked whether he wants to produce any defence or

evidence. If the accused opt to appear himself as witness or wants to produce evidence, the court

shall record such evidence. At the end, the prosecutor will sum up his case if the accused does

not produce any defence evidence. The accused will sum up his case if he chooses defence. After

hearing the final argument, the court will decide the matter. In case of previous conviction of the

accused, the court may record the plea of the accused regarding his previous conviction, and he

confesses may sentence him as per the law; if the accused denies his guilt, the court may record

evidence, record his findings and pass an appropriate order accordingly.

Section 265-K empowers the Court of Sessions to acquit the accused at any stage of the

case. This Section provides that “nothing in this Chapter7 shall be deemed to prevent a court

from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the

7
Chapter XXII-A Cr.P.C. It was introduced through the Law Reforms Ordinance, 1972.

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accused and for reasons to be recorded, it considers that there is no probability of the accused

being convicted of any offence.” This section stipulates that court should hear the prosecution

and the accused prior to acquitting the accused under this section. Moreover, this Section

provides only one ground of the acquittal that is no probability of conviction in any offence of

the case. It is the discretionary power of the court to acquit the accused during trial prior to

conclusion of the case.

Magistrates were given similar powers u/s 249-A which says, “Nothing in this chapter

shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if

after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the

charge is groundless or that there is no probability of the accused being convicted of any

offence.” It is pertinent to note that if both the Magistrate and the Sessions Court fail to exercise

these powers, then High Court may quash the proceedings pending in the subordinate courts

either under Article 199 or Section 561-A Cr.P.C.8

DISCRETIONARY POWERS OF THE COURT U/S 540 CR.P.C.

Section 540 of the Cr.P.C. gives very vast discretionary powers to criminal courts to summon

any material witness or examine any person present in the court. It states that “any Court may, at

any stage of any inquiry, trial or other proceeding under this Code summon any person as a

witness, or examine any person in attendance, though not summoned as a witness, or re-call and

re-examine any person already examined; and the Court shall summon and examine or re-call

and re-examine any such person if his evidence appears to it essential to the just decision of the

case”. This section has two parts: the first part confers discretionary power as it uses the word

8
Miraj Khan v Gul Ahmad, 2000 SCMR 122 and Rizwana Bibi v The State, 2012 SCMR 94.

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‘may’ and the second part, by employing the word ‘shall’ makes it mandatory and obligatory

upon the court to summon and examine or re-call and re-examine any such person if his evidence

appears to it essential for a just decision of the case.9 Thus, court can summon any person who is

acquaintance with the facts and circumstances of the case to arrive at a just conclusion. For

discovery of the truth of the matter, the trial court not only can summon any person acquainted

with the circumstances of the case but can also ask any question in any form from any witness at

any time. Article 161 of the Qanun-e-Shahadat Order 1984 provides that “[T]he judge may in

order to discover or to obtain proper proof of relevant facts, ask any question he places, in any

form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may

order the production of any document or thing; and neither the parties nor their agents shall be

entitled to make any objection to any such question or to cross-examine any witness upon any

answer given in reply to any such question.” Court, therefore, can discover the truth to arrive at a

just decision. Courts are put on guard to see through the case on the principle of ‘sifting the grain

from the chaff’ that was the reason principle of ‘falsus in uno, falsus in omni bus’ (false in one

thing, false in everything) was not applicable in Pakistan since the early 50’s. But in 2019 the

then Chief Justice of the Pakistan, Mr. Asif Saeed Khosa J, made this principle applicable in the

legal system through judicial precedent.10

THE ROLE OF PUBLIC PROSECUTOR (PP)

At the administrative stage, he may act as advisor to the police and to make sure that only case

backed by strong evidence are tried. At the judicial stage, he is to act as prosecutor and represent

the society and public and to uphold a very high standard of fairness and impartiality. The PP can

9
Muhammad Azam v Muhammad Iqbal, PLD 1985 SC 95.
10
For details, see, Criminal Miscellaneous Application No. 200 of 2009 in Criminal Appeal No. 238 of 2013, PLD
2019 SC 527.

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only prosecute the cases filed in the court upon police reports u/s 173 Cr.P.C. Section 265-A

provides that “in every trial before a Court of Sessions, initiated upon a police report, the

prosecution shall be conducted by the Public Prosecutor.” Likewise, Section 9(1) of Punjab

Criminal Prosecution Service (Constitutions and Powers) Act, 2006 stipulates that prosecutor

“shall be responsible for the conduct of prosecution on behalf of the Government. The words

‘police report’ and ‘Government’ in these provisions are significant as they make a trenchant

distinction between State cases and those initiated on private complaints. The public prosecutor

is in-charge of only the first category.”11 The scheme of the Cr.P.C. also clearly indicates two

types of prosecution in Pakistan - private prosecution and public prosecution. The prosecution in

the cases initiated on private complaint u/s 200 of the Cr.P.C. are conducted by private

prosecutor/counsel. The Prosecution of the cases initiated upon the police report are conducted

by the public prosecutors appointed by the provincial government u/s 492 of the Cr.P.C. Public

prosecutor plays significant role during trial as he has the prerogative right to produce the

witness in an order which he considers fit, to give up the unnecessary witnesses or won over

witnesses and submit documentary evidence. The PP can withdraw prosecution from the court

even before the framing of charge or after the framing of charge and before conclusion of the

case. If he withdraws prosecution prior to framing of charge, the accused shall be discharged

from the case and if he withdraws prosecution after framing of charge, then the accused shall be

acquitted in the case.

ENQUIRIES

11
Muhammad Shahid v Aqeel, 2021 P Cr. L J 537.

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The term enquiry is defined in S. 4(1)(k) of the Cr.P.C. which says that “[E]nquiry include every

enquiry other than trial conducted under this Code (The Cr.P.C.) by a Magistrate or Court”.. This

definition is inclusive and not exhaustive. Enquiry may in the administrative or the judicial

phases. It may be conducted by a Magistrate or any other person. It may be in respect of a matter

which is or not an offence. Examples of inquiries into matters which are not offences are

provided by proceedings for security for keeping peace under sections 107 and security for good

behavior u/s 108, 109 and 111 Cr.P.C. Examples of inquiries into matters which are offences are

provided in sections 159 and 202 of the Cr.P.C. Other examples of enquiries are provided in

sections 133, 145, 174, 174-A and 17 Cr.P.C. Enquiry is different from investigation. The

former must be conducted by a Magistrate or court and the latter is conducted by police or any

person other than a Magistrate or Court. The object of the former is to ascertain the truth or

falsity of the matter in order to take further action and the object of the latter is to collect

evidence.

BAIL

Bail application could be moved at any stage of criminal proceedings: i.e., at the time of

investigation or enquiry or trial. Police and Magistrates have parallel powers for admitting an

accused on bail. In bailable offences under S. 496 Cr.P.C. an accused shall be released on bail

against surety determined by Court in bailable offences when he is arrested by the police. Bail

cannot be refused by Court in such offences.

Bail in non-bailable offences

Under S. 497 a Court shall release a person accused of non-bailable offence & who is in police

custody. However, there are some exceptions: where the Court has reason to believe that the

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accused of offence punishable with death or life imprisonment or imprisonment for 10 years. If

the accused is under 16, or is woman, or is sick or infirm. Where the Court believes that the trial

of the accused is not delayed due to default on the part of the accused in any manner whatsoever,

it shall admit the accused to bail,(a) if he is tried for offence not punishable with death and has

been detained in prison for a period exceeding one year (in case the accused is male), or six

months (in case of female),(b) if the accused is being tried for an offence punishable with death

and has been detained in prison for a period exceeding two years in case of male, or one year in

case of female and the trial has not been concluded. The provision shall not apply if the accused

is a previous convict with an offence punishable with death or life imprisonment or is a hardened

or dangerous criminal or is accused of terrorism punishable with death or life imprisonment. Law

of anticipatory bail is not a statutory law but is derived from S. 498 which empowers High

Courts and Court of Sessions to grant this special relief under exceptional circumstances such as

where the Court believes that the accused is wrongly implicated in a case and he was likely to

suffer irreparable injury to his dignity, honour, or reputation by his arrest second or subsequent

application for bail should be heard by the same judge. Accused of bailable offences could be

released, at the discretion of the Court, on execution of Personal Recognizance (P.R.) bond

without surety for their appearance before the Court. A surety or sureties may be allowed to

execute the required bond. A minor is not competent to execute the bond. Bail may be refused in

exceptional circumstances:

(a) Where there is likelihood of absconding of accused,

(b) Where there is apprehension of the accused tempering with the prosecution evidence,

(c) Where there is danger of the offence being repeated if the accused is released on bail; and,

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(d) Where the accused is a previous convict.12

A High Court or Court of Sessions or a Court which has released an accused on bail for a

non-bailable offence, may order his arrest and remand in custody where for instance, there is

apprehension that he may abscond or that he has breached the terms of his bail or has committed

other offences like interfering with witnesses or the administration of justice. Magistrate to hear

both sides in bail application, i.e., the defence counsel and the prosecution and give reasons for

his order. Crimes may be categorized as:

'A' class when the case is true but accused remains untraceable;

'B' class, the matter should be found to be false; and

'C' class where there is insufficient evidence or the matter is non-cognizable.

PROCEDURE AGAINST ABSCONDERS

Sections 87 and 88, Cr.P.C. provide for attachment and sale of property of any accused persons

or witnesses whose presence is required as a last remedy for compelling for their attendance. If

the Court is satisfied after taking evidence that any person against whom a warrant has been

issued by it has absconded or is concealing himself so that such warrant cannot be executed, such

court by adopting procedure laid under section 87, Cr.P.C. proclaim him as offender. Where the

Court is satisfied that an accused person has absconded and there is no immediate prospect of

arresting him, the competent Court, may examine the witnesses on behalf of prosecution in

absence, and record their depositions. Section 205, Cr.P.C. empowers a Magistrate issuing

summons in reasonable circumstances at his discretion to dispense with personal appearance of

12
PLD 1995 SC 34.

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accused and to permit him to appear through counsel at any stage of inquiry or trial and may also

direct his personal appearance later at any stage of inquiry or trial.

EVIDENCE IN CRIMINAL CASES

There may be oral and documentary evidence. Article 3 of the Qanun-e-Shahadat, 1984 lays

down the eligibility criterion to testify in the Court of law. It provides that all persons shall be

competent to testify unless:

(i) The Court considers that they are prevented from understanding the questions put to them,

or from giving rational answers to them,

(ii) They are of tender age,

(iii) They are of extreme old age,

(iv) They are afflicted with some disease, whether of body or of mind, or any other cause of

the same kind, or,

(v) Where a person has been convicted by a Court for perjury or giving false evidence, unless

the Court is satisfied that he has repented thereafter and has mended his ways.

In Article 3 of the Qanun-e-Shahadat Order, the words “all persons” include non-Muslims.

Similarly, in Article 17 the word ‘a person’ in sub-Article (1) is inclusive of non-Muslim. Deaf

and dumb may testify through sign language. Evidence of prosecution may be challenged by the

defence. The burden of proving the charge is on the prosecution. Prosecution witness(es) testify

(examination in chief). They may be cross-examination by the defence. Then, if the prosecution

so desires, re-examines the witness. Examination in chief must relate to the relevant facts but the

cross-examination need not be confined to the facts to which the witness testified. The re-

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examination shall be directed to the explanation of matters referred to in cross-examination.

Question of fact is one which attempts to prove what happened. A fact may be relevant if it

enables the Court to reach conclusion with regard to issues placed before it. Admissibility, on the

other hand, is a rule that provides the Courts with the means of excluding evidence that is

irrelevant, which for some reasons is too unreliable to be accepted by the Court. The example in

sight may be the rule in criminal evidence excluding an involuntary confession, or confession

before police. Under Article 131 of the QSO, it is the prerogative of the Judge to decide as to

admissibility and relevancy or otherwise of evidence before him. General principle of criminal

law is that prosecution has to prove its case against the accused and the standard of proof is to

prove the same beyond reasonable doubt. Courts should be concerned with quality & not

quantity of evidence/witnesses.

Chapter 25 of the Cr.P.C. provides the modes of taking and recording evidence during

enquiries and trials. There are three different kinds of procedures provided by the Cr.P.C.

regarding recording evidence in the trial in criminal cases, first, in summary trials, there is no

need to record evidence where no appeal lies; secondly, cases tried under chapter 20 or 22, the

Magistrate shall make a memorandum of the substance of the evidence u/s 355 Cr.P.C.; and

finally, in other regular trials evidence shall be recorded in the manner provided in Section 356

to 365 Cr.P.C. The evidence shall be recorded in the presence of the accused and where his

personal attendance is dispensed with, then in the presence of his counsel. In trials before Court

of Sessions and in enquires under chapter 22, the evidence shall be recorded by the Sessions

Judge or by the Magistrate in the language of the court by his own hand or under their personal

direction and the evidence shall be signed by the Sessions Judge or Magistrate respectively.

Where a judge has not written evidence by his own hand, he shall make a memorandum of the

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substance of what such witness deposed and such memorandum shall be written and signed by

the Magistrate or Sessions Judge with his own hand and shall form part of the record. If the

Sessions Judge or the Magistrate fails to make such memorandum, they shall record the reason of

their inability to do so. Evidence shall be taken down by hand of the judge in the mother-tongue

of the witness and if the judge fails to take evidence by his own hand, he shall record the reasons

of his inability and take the evidence in writing from his dictation in open court, sign it and make

it part of the record. High Court has the authority to direct the Sessions Judge and the Magistrate

to take evidence in English language or the language of the court, although the such language is

not the mother-tongue of the accused. Evidence shall be taken in the form of a narrative and not

in the form of question and answer however, the judge has discretionary power to take down any

particular question and answer. The evidence shall be read over to the witness in the presence of

the accused or his pleader and shall be corrected if necessary. If the witness denies the

correctness of any part of the evidence when the same is read over to him, the judge may make a

memorandum thereon, shall add such remarks as he thinks necessary instead of correcting the

evidence. If the evidence is recorded in a different language and not in the mother-tongue of the

witness, it shall be interpreted to him in the language in which it was given or in the language

which the witness understands. When the evidence given in the language which was not

understood by the accused, it shall be translated to him in the open court in a language

understood by him. When any document is produced for the purpose of formal proof, the court

has discretion to interpret it as much as it thinks is appropriate. The judge shall also record his

remarks in respect of demeanor of the witness whilst under examination where he thinks fit.

The record of the examination shall be shown to him or translated to him. He shall be at

liberty to explain or add to his answers. The record of examination of the accused shall be signed

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by him and by the judge. The judge is also responsible to make certificate in his own hand

writing that “the examination was taken in his presence and hearing and that the record contains

a full and true account of the statement made by the accused.”13

QUANTUM OF PUNISHMENT

Sentence should be offender-oriented and not offence-oriented. There must be a difference

between first-time offender and a habitual offender.

The elements to be considered for assessing the quantum of sentence are:

(a) The nature of the offence,

(b) The circumstances in which it was committed,

(c) The degree of deliberation shown by the offender,

(d) The provocation which he received,

(e)The antecedents of the prisoner up-to the time of sentence,

(f) His age and character.

As per the guidance of the august Supreme Court, interpretation shall favour the accused. It

stated that “It is also hard and fast principle relating to interpretation of criminal law, which

curtails the liberty of a person that it should be construed very strictly and even if two equal

interpretations are possible then the favourable to the accused and his liberty must be adopted

and preferred upon the contrary one.”14

13
Section 364 Cr.P.C.
14
PLD 2015 SC 15.

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 Appeal against all orders of Magistrate lies to the Sessions Court except the acquittal as u/s

417 Cr.P.C. appeal against acquittal passed by any court other than the High Court lies to the

High Court. An appeal from conviction by Magistrate lies to the Court of Sessions. Appeal

against orders of Sessions Court lies to the High Court. If the accused is sentenced to death by a

Sessions Court it must be confirmed by the High Court.

CONCLUSION

The main points of this work may be summarized. Under the Cr.P.C., the Area Magistrate takes

cognizance of all criminal cases which are either filed through private complaint or through

police report. There are two types of criminal trials: summary and regular trial. The Cr.P.C.

provides comprehensive procedure of regular trials in the Magistrate as well as Sessions Courts.

After taking cognizance of a criminal case statements of witnesses and documents are supplied to

the accused seven days before the framing of charge. The accused is asked whether he pleads

guilty or wants trial. In Sessions trial, the court must peruse the file, statements of the witnesses,

and other documents to check whether there are sufficient grounds to start a criminal trial. In

Sessions trial, the prosecution of the cases initiated upon the police report is conducted by the

public prosecutor. However, the prosecution of the cases initiated as a result of private complaint

is conducted by a private counsel. The public prosecutor plays a significant role during the trial.

The criminal trial ends with the acquittal or conviction of the accused. Magistrate has the power

to acquit the accused during trial at any stage even prior to framing of charge on the grounds that

the charge is baseless or there is no probability of accused being convicted of any offence, after

hearing the PP and the accused u/s 249-A Cr.P.C. The same discretionary power can also be used

by the Court of Session u/s 265-K Cr.P.C. on the ground that there is no probability of the

accused being convicted of any offence. The High Court can also use discretionary power u/s

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561-A Cr.P.C. to quash the proceedings in courts subordinate to it or to quash the FIR. Courts

have the mandate to discover the truth while ensuring fair trial.

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