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The information provided below is meant for the purposes of helping our current and potential clients.Please note that while we keep every effort to update the information on our Website, we are not responsible if any new law or amendment has been ignored in the paragraphs below.This information is also not a substitute for actual legal advice by our Specialist team.If you have a legal query, we would recommend you to get in touch via free consultation.
CATEGORIES OF CRIMINAL PROCEDURE IN PAKISTAN
There are two categories of Criminal Procedure in Pakistan:
Constitutional Criminal Procedure;
Legislative / Ordinary Criminal Procedure.
CONSTITUTIONAL CRIMINAL PROCEDURE
Whatever the subject of a legal study, the starting point must be the Constitution namely the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), that being the supreme law of the country for the reason;
It is the source from which all governmental forums, including the executive forum to prosecute, investigate etc. criminal offences, the legislative power to create offences, to provide for their punishment, and to establish the procedure for their trial, and the judicial power to try the criminal offences and furnish the offences, emanate;
It provides, particularly by guaranteeing some of the important human fundamental rights, a constitutional model of a fair criminal procedure – a mini-code of criminal procedure.
CONSTITUTIONAL CRIMINAL PROCEDURE
Relevant provisions of the Constitution of Pakistan, relating to criminal procedure, as contained in Part II, Chapter 1
Relevant provisions of the U.S. Constitution, relating to criminal procedure, particularly
The Fourth Amendment, ensuring the right to privacy, including the right against unreasonable searches and seizure of persons and things;
The Fifth Amendment, guaranteeing:-
the right to a speedy and public trial;
the right to be informed of the nature and cause of the accusation;
the right to be confronted with the witnesses against him;
the right to have compulsory process for obtaining witnesses in his favour; and
the right to have the assistance of counsel for his defense
CONSTITUTIONAL CRIMINAL PROCEDURE
Criminal Procedure as an element in Rule of Law
CONSTITUTIONAL RIGHT OF INDIVIDUALS TO BE DEALT WITH IN ACCORDANCE WITH LAW, ETC.−
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.
5.LOYALTY TO STATE AND OBEDIENCE TO CONSTITUTION AND LAW.−
(1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.
The following cases are especially important in this area of law and are often brought up during litigation proceedings.
Ziaur Rahman case – PLD 1973 SC 49;
Muhammad Mubeen-us-Salam v Federation – PLD 2006 SC 602
Abdul Malik v State – PLD 2006 SC 365;
Ms. Rowshan Bijaya case – PLD 1957 Dacca 241;
Manzoor Elahi case – PLD 1975 SC 66;
Christie – (1947) 1All ER 567
Our team can advise you on the legal aspects of
- Investigation and Inquiry
- Trial
Stakeholders in the Criminal Justice process:
- Police
- Prosecutor
- Defense Counsel
- Courts
INVESTIGATION In Pakistani Criminal Law
Its definition – Section 4 (l) Cr.P.C
“Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf”
Cognizable & non Cognizable
FIR u/s 154 of Cr.P.C.
Who can lodge the FIR?
Officer Incharge of police station 4(p)
Power u/s 551
“Police officers superior in rank to an officer incharge of a police station may exercise the same powers, throughout the local area to which they are appointed, as-may-be exercised by such officer within the limits of his station
INVESTIGATION
POWERS OF POLICE OFFICERS
Are derived from law; and
Subject to the Constitution and Law
power to arrest and detain – Sections 46, 54-57 Cr.P.C;
power to require the attendance of any person – Section 160 Cr.P.C
power to enter and search – Section 47, 49, 165 Cr.P.C;
power to search person – Section 51 Cr.P.C;
power to seize property
Powers of Police Officers are great and caution is needed in their uses
INVESTIGATION
Safeguard against misuse of Police powers
- Articles 9, 10, 13, 14 and 24 of the Constitution;
- Sections 60, 61, 163 Cr.P.C;
- Statements of witness recorded during Investigation their limited use – Sections 161, 162 Cr.P.C;
- Maintaining a police diary and its use – Section 172 Cr.P.C
Remand to custody during investigation
When investigation cannot be completed within the prescribed time – Sections 61 and 167 Cr.P.C;
Magistrate’s power is –
- To remand to police custody, or
- To remand to judicial custody
INVESTIGATION
CULMINATION OF INVESTIGATION;
Report under Section 173 Cr.P.C; commonly known as Challan
- May recommend cancellation of case; or
- It is a charge sheet against the accused named in the Challan
Opinion of the police under Section 173 is not binding on Court; So that the Magistrate may not cancel the case; and May summon the accused for trial
Cancellation of a case is administrative phase of criminal procedure:
- is not acquittal of the accused:
- the Magistrate canceling may subsequently take cognizance of the case on complaint
INVESTIGATION
INVESTIGATION IS ADMINISTRATIVE PHASE OF CRIMINAL PROCEDURE
- as distinguished from trial; and
- entitles the suspect to fairness but not as much as during trial, e.g. cross examination of witness and hearing before Challan.
A Magistrate during investigation may:
- a) sometimes act in administrative capacity; and
- b) sometimes in judicial capacity
For example, a Magistrate granting or refusing remand to police custody perform a judicial function, while canceling a case, he performs and administrative function
INVESTIGATION
CONTROL OF INVESTIGATION BY COURTS;
Relationship between Court and Police
Control of investigation by Court
“Just as it is essential that every one accused of a crime should have free as to court of justice so that he may be duly acquitted if not found guilty with which he is charged. So it is of utmost importance that judiciary should not interfere with the police in matters which are within their province and into which law imposes upon them the duty of enquiry……the functions of the police and judiciary and complementary not overlapping”
u/s 491 because the charge is alleged
Following cases routinely come up during litigation proceedings involving investigation law in Pakistan :
Muhammad Bashir vs. SHO – PLD 2007 SC 539
Manzoor Elahi – PLD 1975 SC 66
Khawaja Nazir Ahmed – AIR 1945 PC 18;
Shehnaz Begum – PLD 1971 SC 677
Malik Shaukat Ali Dogar – PLD 1994 SC 281
Brig Imtiaz Ahmed – 1994 SCMR 214
Legal Advice on Penal Code : Islamic Concepts
Presently in Pakistan the criminal justice system is primarily based upon a penal code that was codified by the British in the colonial era of their rule. It includes the Criminal Procedure Code of 1898 and Penal Code of 1860. These codes do not provide for and restorative justice hence they our system does not have any such inherited provisions. Our system is still based upon the accusatorial principle i.e. the state is a party in any criminal transaction. Punishment of the offender as a rule is the only remedy available as opposed to providing for any relief for the victim of the crime. It truly speaks of the underlying objective that the state is interested in maintaining ‘order’ and writ of the state in the society instead of taking care of the victim.
However Pakistan has tried to improve the inherited criminal laws making them beneficial for the society. In brief, these codified changes are:
Qisas and Diyat Ordinance “Crime of retribution and compensation (Diyah) involve homicide, bodily injury or other forms of harm committed against the physical security of the person. Homicide is of three categories: – It may be pre- meditated, involuntary, or voluntary. Pre-meditated homicide involves a penalty under the law of Qisas. Qisas refers to a specified punishment in Quran and Sunnah. They are labeled as such because the punishment imposed is either a just-retributive penalty equivalent to the injury inflicted on the victim, or takes the form of pecuniary compensation (Diyat) for the victim’s injuries. Diyat is imposed only if just- retribution is not executable or the victim waives his right to demand it. The decision whether or not to prosecute rests with the victim and his relatives. In the event of a conviction they have the choice between the retribution, compensation or pardoning the offender altogether. In case of pardoning, the court reserves power of discretionary punishment of the offender.
The Islamic law of just-retribution provides a very effective and practical means to put a stop to murder and safeguard human life. A man, who shows little regard for the life of another, henceforth loses his right to live. The option to pardon allowed to the heirs of the slain person, should not be regarded as likely to encourage murder, for such option is not synonymous with exemption from punishment as in ordinary circumstances the murderer will have to pay the blood-money. Moreover, the murderer does not know whether the relatives of his victim will in fact pardon him therefore the fear of capital punishment remains. Pardon or remission is permissible only where the circumstances are such that the pardon or remission is likely to improve conditions and bring about good results for all concerned parties. Islam seeks to remove the very root-cause of all crimes by working a complete moral reformation in man. The individualization of punishment under Islamic law is fundamental, whether as to Hadd, Qisas or Tazir. The Diyah, by contrast, is not strictly a punishment, but assumes the nature of compensation, which must be paid to the victim for injury. It is sometimes confused with punishment because the amount of compensation is specified in advance. That practice is evidence of the firm adherence to the principle.
Difference between Qisas and Revenge
There is a difference between Qisas and Revenge. In revenge, the punishment inflicted on the offender is neither equal nor similar. In qisas the equality of quantum of crime and of punishment is strictly adhered to. The law requires that a person shall not inflict a greater degree of harm than that which has been inflicted upon him. If equality iby way of qisas is not possible then an alternative punishment will be awarded. Secondly the process of revenge goes on between strong and weak while qisas is awarded by the order of the court and the entire community is under an obligation to help the victim until qisas is executed.
Preference of Diyah over Qisas
As between Qisas (just-retribution) and Diyah (blood money), the Quran clearly indicates the preference for the Diyah and forgiveness. Islam recommends reconciliation in murder cases so that peace and tranquility emerges ultimately. Murder is a compoundable offence under the existing law. Thus, the combination of Diyah and forgiveness produces a powerful material and spiritual inducement to forsake Qisas as retaliation. Consequently, one must interpret the crimes of Qisas as being based on a general deterrence policy which recognizes the victim’s sense of vindictiveness against his aggressor, while limiting the consequences of the penalty to the harm done and establishing the alternative remedies of victim compensation or outright forgiveness.
Qisas in Hurt Cases
The law includes many detailed provisions regarding cases of hurt and “Itlaf” (total or partial damage to any limb or organ of the body) and has provided for “Arsh” “Zaman” and “Diyah” as various modes of compensation.
At times, the full amount of compensation in the form of Diyah is payable to the aggrieved whereas, at other occasions, only a proportionate amount of Diyah is recoverable. If, for instance, the sole organ or limb of a person is totally damaged due to the act of an individual and he is deprived of making use thereof permanently, the full amount of Diyah would be recoverable. The cutting off of the nose etc. of an individual can be quoted as an instance. If both organs or limbs like hands, eyes, feet are damaged, full compensation in the form of Diyah would be payable but if one of the two is damaged then proportionate Diyah to the extent of one-half would be payable. This principle would follow in other cases as well.
It should be noted that in certain circumstances, a fine could only be imposed if the damage caused is of a negligible extent. If a person has, for instance, six fingers of a hand and damage is caused totally or partially to the sixth additional finger, no compensation in the form of Diyah can be recovered. But the aggrieved person can only approach the court that shall award him reasonable compensation by imposing a fine on the offender. Similarly, if certain damage is caused to a sexual organ of an impotent male person, the victim can only be compensated by way of payment of a fine because it cannot be said that he suffered an irreparable loss. The fact cannot, however, be lost sight of that in certain cases a larger amount of compensation by way of Diyah can also be granted if the damage caused is of an extensive nature. If, for instance, one of the teeth out of 32 teeth is initially damaged but the said damage has also adversely affected the remaining 31 teeth, the offender must compensate the victim for the damage caused partially to the said 31 teeth.
Other Expenses Recoverable
It would be an injustice to the victim, if he were not awarded compensation for the injuries sustained, but rather left to expend his own money on the treatment of the inflicted injuries. The present law is not oblivious to the practical difficulties and the hardships of the victim and has specifically provided that the victim must be given adequate relief and compensation for hospital expenses, pain and suffering caused by the injury and pecuniary loss.
Provision for Negligent Driving
Negligent Driving and other rash acts causing hurt entail criminal punishment under the law besides “Arsh” and “Daman” specified for the offence.
Aaqilah
Sometimes an offender may be helped by his community to pay the blood money. When death has been caused by negligence or mistake, Aaqilah of the offender i.e. those who have a common interest with the offender arising out of their profession or simple neighborhood or the merchants who occupy premises in the same market, must pay the blood money to heirs of the deceased. The reason is that it is the duty of the person’s Aaqilah to watch over his conduct and the law presumes that the wrongdoer would not have acted in the way he did, unless they neglected their duties. In this way his community has been burdened with the so-called light penalty.
Qasamah
To prevent crime and making every locality conscious of being a helping hand in the overall objective of good order in society another novel concept has been introduced by the law, which is called “Qasamah”. It is a general term for oath. As Qasamah means, “to divide”, we seem to have here the usual transition between the meanings to cut and to decide so that Kasam’ would be the deciding, strong word. If a dead body is found in a certain locality with signs of foul play on it the heirs of the deceased are entitled to select a maximum of fifty inhabitants from the place to take an oath that none of them killed him. If they take the oath then the competent court of jurisdiction has the discretion to nominate several or all of the inhabitants for the payment of blood money. Whoever refuses to take the oath shall be kept in simple imprisonment until the time of his confession, or his willingness to take the oath, or disclosure of information pertaining to the real murderer. Similarly, if a dead body is found at the door of a man’s house he will take the oath and if he swears that he did not kill him, then the court will decide as to whom is liable for the payment of Compensation.
Ghurrah
Ghurrah (compensation) is due in the case of destruction of an embryo or a fully formed child still-born as a result of assault suffered by the mother during her pregnancy. Thus the law provides an effective remedy in case of injury to unborn children. From the above discussion, it is vividly clear that the Penal law of the country has provided ample opportunities of compensatory justice to the victim in the shape of Qisas, Diyat, Arsh, Zaman, Aaqila, Qasamah and Ghurrah. As mentioned earlier no homicide, hurt, injury or damage remains uncompensated, but despite the prevalent law, the ideal results in the area of restorative justice are yet to be achieved.
Haddood Ordinances of 1979
Hadd means to check or stop. It also means measure, limit and in law it means a punishment, the measure of which has been definitely fixed by the Holly Quran and Sunnah i.e. by the Holly Prophet (peace be upon him). The major crimes covered under this category are theft, robbery, illegal sexual intercourse, drinking of alcohol etc. Since Islam as a religion carries a full social system in its lap, therefore it has provided a complete societal restorative system for the tranquility, harmony and health of the society as a whole. In Pakistan, offences against the Property Ordinance, Zina Ordinance and Prohibition Order envisage such provisions.
In Islam the various categories of punishment have been prescribed according to the nature, type, and its impact on the society or the individual victim. If the offence infringes the rights of Allah or in other words if it is against the good order and welfare of the entire community then the punishment is harsh. If it is a matter concerning the individual then forgiveness or compromise may be adopted.