Significance with regard to Criminal Procedure

II. CRIMINAL PROCEDURE

II.1 Significance

In the criminal law, a range of due process rights are available to an individual charged of an offence. According to article 14 of the International Covenant of Civil and Political Rights, all persons shall be equal before the courts and tribunals. It also provides that any one charged of a criminal offence shall be entitled to fair and public hearing by a competent, independent and impartial tribunal established by law. Such person, it adds, shall have the right to be presumed innocent until proved guilty according to law. Article 14 lists the following specific minimum guarantees of a person accused of an offence to be provided to in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

Article 14 also recognizes the right of appeal on conviction, compensation if a conviction is reversed and miscarriage of justice is found and safeguard against double jeopardy. It also provides that where a child is in conflict with law, the age and rehabilitation of the accused are to be taken into account.

These safeguards are also part of the fundamental rights enshrined in 1973 Constitution of Pakistan. Article 10 provides that a person arrested, including preventive detention, shall be immediately informed of the grounds for arrest and produced before a magistrate within 24 hours. Article 10-A protects the rights to fair trial and due process. The rights mentioned in article 14 of ICCPR, above, are due process rights. Articles 12—14 recognize the protection against retrospective and double (jeopardy) punishment and self incrimination (no compulsion for confession), violability of human dignity, privacy of home and torture for extracting evidence. 

The Code of Criminal Procedure, 1898, is the main municipal law of procedure. It aims at protecting the above mentioned and many other rights of an individual. The scheme of the CrPC is to facilitate the administration of criminal justice. Its understanding by the Judicial Officers is thus of vital importance.

Debate: In criminal justice system powers of judge are mostly discretionary.

II.2 Introduction

To begin with, the following key concepts should be understood, particularly with reference to case law on interpretation of the CrPC:

Administration of criminal justice	Accused—a favourite child of law
Benefit of doubt	Motive, malice and mens rea
Justice seen to have been done	Justice delayed, justice denied
Appreciation of evidence	Islamic concept of criminal justice
Police role in enforcement of the CrPC	Departure from procedure

II.3 Hierarchy of criminal courts

II.4 Classes of Courts and their Powers                                     (Chap. II & III, CrPC)

II.5 Processes of courts                                                                 (Chap. VI & XVII CrPC)

II.5.1  Summonses and warrants and their forms     

II.5.2  Procedure for removal in custody to Tribal Areas    (S. 86-A, Ch. VI, CrPC)

II.5.3  Proclamation and Attachment                                       

Activity: Aslam, an accused  in a murder case has absconded himself. Adopt the proper procedure declaring him as proclaimed offender and issue proclamation. Also conduct mock proceedings for restoration of the attached property.

Apply the following:

·         Go through Sec 87,89,Chap VI, CrPC

·         Make sure that a warrant of arrest has been issued

·         Satisfy yourself by taking evidence by taking evidence that the accused has absconded himself

·         Satisfy yourself that the abscosion was intended to defeat the warrant

·         Ensure publication of written proclamation

·         Publication must be in accordance with Sec 87(2)

·          Make an order for the attachment of the property of the absconder u/s 88,CrPc.

·         Follow the procedure laid down in section 89,CrPc for the restoration of the attached property.

II.5.4  Summons for service outside Pakistan, execution of warrants received from outside in Pakistan                                                                                (Ss 93A-93C)

II.5.5  Production of documents                                     (Ss. 94-99-G, Chap VII, CrPC)                      

II.5.6  Recovery of movable property & Discovery of persons wrongfully confined                                                                                                                            (S. 100, Chap VII)

II.6 FIR and Investigation                                                                        (Chapter XIV)

Activity: Akram hit Aslam on his head and hurt him badly. Under what section(s) of  law  FIR is to be registered?  Also  Study and understand an FIR according to the CrPC and Police Rules.

Apply the following:

·         Go through the definitions of hurt in section 337 PPC

·         Study the Medico legal report to determine the nature of offence

·         For the contents of FIR go through section 154, CrPC

·         What do you think what kind of offence is committed? Cognizable or non cognizable?

·         To determine the cognizablity & non cognizablity under schedule II CrPc.

II.7 Police remand 167, Chap. VII)

                                                                         

Activity: A women was found in possession of 5 kg Opium and booked. The police has requested for remand.  Decide the application, give reasons to support the order.

Apply the following:

·         Follow section 167,CrPc

·         Ensure that investigation has not been completed

·         Ensure that police custody of the accused is indispensible for investigation

·         Record reasons for giving remand

·         Ensure that the police officer requesting remand is competent to make such request

·         If you are giving the accused in police custody, ensure that your order contain the following;

Ø  Weather under the law, remand can be granted of the female accused in such like cases?{ S 167(5) CrPc}

Ø  Specify the place of investigation in the order

Ø  Specify the exact timing of the interrogation

Ø  Specify that the accused be interrogated in the presence of lady police officer

Ø  Specify that if the accused is required to be taken out of the prison, she must be accompanied by a lady police.

Ø   

II.8 Conditions requisite for initiation of proceedings         (S. 190-199B, Chap XIV)

II.9 Complaints to Magistrates                                                    (Chapter XVI)

Activity: Nazia has complained that Ahmad introduces water into her ice-house, causing the ice to melt. How will you proceed and what offence has been committed?

Apply the following:

·         Examine the complainant under section 200,CrPc

·         The offence appears to come under the definition of Mischief contained under section 425,PPC

·         Study the section carefully

·         Ensure that court have jurisdiction to proceed

·         Inquire the complaint, or send it, for investigation to the police under section 202,CrPc

·         Issue process, when you are satisfied that the complaint is worth trial

·         Take complainant evidence

·         Take respondent evidence

·         Pronounce judgement

II.10 Trial by magistrate                                                              (Chap. XX & XXIV CrPC)

Copies of allegations→Charge→evidence→Decision (including sentencing on conviction)→judgment

II.10.1 Charge                                                                                (Chap. XIX CrPC)

·         Concept and kinds

·         Framing of charge

Activity: "A"  is accused of theft of certain articles from a residential house at night .During the course of theft "A" also injured the inmate of the house.   Frame charge against "A"

Apply the following:

·         Study section 378,302,PPC and chapter XIX, CrPC

·         While framing charge, state the name of the offence

·         The charge must specify the  dishonest intention in the commission of theft

·         Specify the place of offence

·         Specify the time of the offence

·         Specify the section of law against which offence is committed

·         Frame charge under separate heads for theft and murder

II.10.2. Recording of Evidence                                                  (Chap. XXV CrPC)

 II.10.3 Judgment                                                                            (Chap. XXVI CrPC)

Activity: "A" while offering Nimaz-e- Magrib was on his way from Masjid to home. On the way he was stopped  by "B". Some altercation took place between them on the issue of cutting of grass by "A" from B's grassland. On provocation, ''A" took out a knife from his pocket and hit "B" on various parts of the body.. The villagers rush to the spot, took" B" to Hospital. FIR was registered under section 337,PPC and "A" was arrested. He was produced before the Magistrate for police custody.  Conduct full dress mock  trial, including pre-trial proceedings .

II.10.4 Summary Trial                                                                               (Chap. XXII CrPC)

Activity: A, a shopkeeper, was found in possession of weighing instruments which was found to be false. A was knowing that these instruments are false and was using  the same with  fraudulent intention. He was booked and brought before the Magistrate. Conduct his mock trial.

Apply the follow:

·         Read section 266,PPC and ensure that all the ingredients for the commission of offence are available

·         Study chapter XXII, CrPc for the proper procedure of the summary trial

II.11 Bail, Bonds, Forfeiture                                            (Chap. XXXIX, XLIII, S. 514 CrPC)

II.11.1 Bail in bailable and non-bailable offences, attestation of bail bonds, forfeiture of bonds.

Activity 01: Aslam was booked in FIR No 213, U/s 320/34, PPC, police station Hayat abad, Peshawar.  Allegedly he  committed the murder of Akram. The story says that Akram was a Mechanic by profession. Aslam, a landlord brought his car for refurbishment. On completion of the repair work, Akram, the Mechanic demanded his fee. Aslam got furious, pick up the pistol, fired at Akram and shot him dead. The accused submitted an application for bail. Write an order, disposing the application. Activity 02: A, a driver is booked in a case under section 279/320,PPC. He allegedly hit and killed  B by negligent and rash driving. He is produced before you, being the concern Magistrate. Writ the appropriate order. Activity 03: A, an accused on bail, has absconded himself. Forefiet his bail bonds and write a proper order.

II. 12 Disputes as to immovable property                                 (Chap. XII)

Activity: Decide an application under s. 145 CrPC in mock proceedings.

II.13 Public nuisance                                                                    (Chap.  X  & XI CrPC)

Activity: Conduct mock proceedings of public nuisance, applying all steps. .

II.14 Disposal of property                                                            (Chap. XLIII CrPC)

Activity: Decide an application for disposal of property. Apply precedent law.