2016 BENCH BOOK – A GUIDE FOR DISTRICT JUDICIARY
[KHYBER PAKTUNKHWA JUDICIAL ACADEMY] BENCH BOOK – A GUIDE FOR DISTRICT JUDICIARY
Contents List of Abbreviations ......................................................................................................... 6 Foreword ......................................................................................................................... 7 Preface ............................................................................................................................. 9 Chapter I - The Structure of Constitution ......................................................................... 11 Introduction ...................................................................................................................................... 11 Legislation ......................................................................................................................................... 11 Modes of Legislation ......................................................................................................................... 12 Delegated Legislation ........................................................................................................................ 13 Executive ........................................................................................................................................... 13 Courts ................................................................................................................................................ 14 Independence of Judiciary ................................................................................................................ 15
Chapter II: Judicial Ethics ................................................................................................ 17 Chapter III: Courts, laws and precedents ..................................................................... 18 Decision of own High Court:- ............................................................................................................ 19 Conflicting views of different High Courts ........................................................................................ 19 Conflicting views of different High Courts other than own High Court ............................................ 19 Conflicting views of one High Court.................................................................................................. 19 Conflicting views of the Supreme Court ........................................................................................... 20 Decision of Privy Council and Federal Court of India ........................................................................ 20 Pre-Independence Privy Council and High Court decision ............................................................... 21 Pre- Independence Privy Council and Federal Court decision .......................................................... 21 Pre- Independence Privy Council and Supreme Court decision ....................................................... 21 Pre Independence Privy Council and post- Independence High Court decision,- ............................ 21 Reported & Unreported Cases,-........................................................................................................ 21 Binding Nature of Precedents,-......................................................................................................... 22 Precedent cases fall in two distinct categories,-............................................................................... 22 Course for subordinate court in following the precedents,- ............................................................ 22 Kinds of Laws and Interpretation ...................................................................................................... 23
Chapter IV: Fair Trials .................................................................................................... 25 Pre-Trial Rights .................................................................................................................................. 26 The Hearing ....................................................................................................................................... 27 Post-Trial Right .................................................................................................................................. 27
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Chapter V: Civil Trial ....................................................................................................... 28 Jurisdiction ........................................................................................................................................ 28 Summary Rejection ........................................................................................................................... 28 Parties and their appearance ............................................................................................................ 29 Processes........................................................................................................................................... 29 Defence and issues ........................................................................................................................... 30 Disposal of case at first hearing ........................................................................................................ 30 Witnesses .......................................................................................................................................... 30 Judgment and decrees ...................................................................................................................... 31 Execution........................................................................................................................................... 32 Withdrawal, Payment in court, Security & Commission................................................................... 36 Suit involving Government ............................................................................................................... 36 Suits involving Military, Corporations, Firms & Trustees etc ............................................................ 37 Minors and persons of unsound mind .............................................................................................. 37 Pauper suits....................................................................................................................................... 38 Mortgages of Immovable Property ................................................................................................... 38 Interpleader ...................................................................................................................................... 38 Special case ....................................................................................................................................... 39 Summary procedure on Negotiable Instruments ............................................................................. 39 Arrest and Attachment before Judgment ......................................................................................... 39 Temporary injunctions and interlocutory orders ............................................................................. 39 Appointment of receiver................................................................................................................... 40 Appeals from decrees & orders ........................................................................................................ 41 Reference, Review and Revision ....................................................................................................... 43 Costs .................................................................................................................................................. 44 Limitation .......................................................................................................................................... 45 Court Fee and Suit valuation............................................................................................................. 45 Ordinary Civil Courts of Plenary Jurisdiction..................................................................................... 46
Chapter VI- Case & Court Management ........................................................................... 49 Civil .................................................................................................................................................... 50 Criminal ............................................................................................................................................. 53
Chapter VII: Special Civil Courts ...................................................................................... 54 Family Courts .................................................................................................................................... 54 Rent Controller.................................................................................................................................. 56 Bench Book: A Guide for District Judiciary
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Succession Act, 1925 ......................................................................................................................... 57 Guardian & wards ............................................................................................................................. 59 Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ................................ 61 Land Acquisition Act, 1894................................................................................................................ 62 Arbitration......................................................................................................................................... 63
Chapter VIII: Criminal Trial .............................................................................................. 65 General Law of Criminal Procedure. ................................................................................................. 65 Cognizable & non cognizable offences ............................................................................................. 66 Bailabe & non bailable offences ....................................................................................................... 67 Compoundable & non compoundable offences ............................................................................... 67 Pre-trial Proceedings ......................................................................................................................... 67 Submission of challan ....................................................................................................................... 68 Trial by Magistrates .......................................................................................................................... 68 Trial by Court of Session and High Court .......................................................................................... 70 Charge ............................................................................................................................................... 71 Discharge........................................................................................................................................... 71 Summary Trial ................................................................................................................................... 73 Evidence ............................................................................................................................................ 73 Lunatics ............................................................................................................................................. 75 Pardon ............................................................................................................................................... 75 Bails and bonds ................................................................................................................................. 76 Habeas corpus ................................................................................................................................... 77 Public prosecutor .............................................................................................................................. 77 Irregular proceedings ........................................................................................................................ 78 Case property .................................................................................................................................... 78 Judgment........................................................................................................................................... 80 Submission of sentence for confirmation ......................................................................................... 81 Execution........................................................................................................................................... 81 Jurisdiction of criminal courts ........................................................................................................... 82 Appeal ............................................................................................................................................... 83 Revision ............................................................................................................................................. 84 Justice of peace ................................................................................................................................. 85 Punishments ..................................................................................................................................... 85
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Chapter IX: Special Criminal laws ................................................................................... 88 Control of Narcotics Substances Act, 1997 ....................................................................................... 89 Juvenile Justice System Ordinance, 2000 ......................................................................................... 90 Hudood laws ..................................................................................................................................... 91 Prohibition (Enforcement of Hadd) Order, 1979 .............................................................................. 91 Offences against Property (Enforcement of Hudood) Ordinance, 1979 .......................................... 92 Offence of Zina (Enforcement of Hudood) Ordinance, 1979............................................................ 94 Offence of Qazf (Enforcement of Hudood) Ordinance, 1979. .......................................................... 95 Mental Health Ordinance, 2001 ....................................................................................................... 96 Foreign Exchange Regulation Act, 1947............................................................................................ 97 The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 ................................................. 97 The Khyber Pakhtunkhwa Arms Act, 2013........................................................................................ 98 Contempt of court .......................................................................................................................... 100
Chapter X: Law of Evidence ........................................................................................... 103 Doctrine of Res gestae .................................................................................................................... 104
Annexure A .................................................................................................................. 106 Annexure B .................................................................................................................. 108 Annexure C................................................................................................................... 123 Annexure D .................................................................................................................. 124 Annexure E ................................................................................................................... 125 Annexure F ................................................................................................................... 129 Annexure G .................................................................................................................. 135 Annexure H .................................................................................................................. 138
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List of Abbreviations
AA--- Khyber Pakhtunkhwa Arms Act, 2013.
CCO--- Contempt of Court Ordinance, 2003.
CNSA--- Control of Narcotics Substances Act, 1997.
CPC--- Civil Procedure Code, 1908.
CrP---Criminal Procedure Code, 1898.
JEC2---Juducial Estacode 2nd Edition 2011.
JJSO---Juvenile Justice System Ordinance, 2000
KPDCR--Khyber Pakhtunkhwa District Courts Rules and Orders,
Instructions, Circulars & Standing Orders.
KPK---Khyber Pakhtunkhwa.
MHO--- Mental Health Ordinance, 2001.
OAPO---Offences Against Property Ordinance, 1979
PHCR--- Peshawar High Courts Rules of Procedure.
PO---Prohibition Order, 1979
PPC---Pakistan Penal Code, 1860.
OQ--- Offence of Qazf (Enforcement of Hudood) Ordinance, 1979.
QSO--- Qanoon-e-Shahadat Order,1984.
RC--- Rent Controller.
ZO--- Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
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Foreword The Khyber Pakhtunkhwa Judicial Academy, being a premier institute of judicial education in the province, is committed to provide quality continuing judicial education to all those connected with justice sector. This Academy feels that delivery of service towards enhancement of judicial education is its primary and statutory duty. In this period of fast track journey those who fail to adapt to non conventional methods are bound to lag behind .The Academy, therefore, uses all possible ways and means to enhance the capacity of service providers in justice sector so that the ultimate goal of expeditious and quality justice to masses can be achieved. It was in this backdrop that I had a desire of preparing a handy guide for the judicial officers who on each occasion have to consult much bulky material for reaching the concerned law. This effort on their part consumes a lot of time and causes delay in disposal of judicial business. With handy reference lot of time of court shall be saved and it shall also aid to better and timely service delivery. I really appreciate the efforts of Mr Niaz Muhammad Khan who prepared the Bench book in short time sensing the urgency of getting it prepared before the batch of new entrants in district judiciary are to leave for field from the Academy. Sufficient space has been reserved in the Book for judicial ethics which would be beneficial for judicial officers in adopting core values of judiciary as justice should not only be done but should manifestly and undoubtedly be seen to be done . I hope that the research wing shall continue to come up with new publications which shall benefit the public in general and justice sector in particular.
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I also expect the judicial officers to make good use of this Bench book so that the purpose of whole exercise is achieved.
Zia-ud-Din Khattak Director General KP Judicial Academy Peshawar.
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Preface Bench books are meant for facilitating the users i.e. the judicial officers to have easy and handy reference to day to day procedural law. Since laws of different jurisdiction are different, the Bench book of one jurisdiction is not always relevant to other jurisdiction. The need was felt in this province to have our own Bench book for judicial officers. After my posting in present position some six months back I have been listening on so many occasions (formal or informal) from Mr Zia-ud-Din Khattak, the Director General of Academy, about having our own Bench book. His desire gained impetus after fresh induction of 25 Additional District and Sessions Judges by Peshawar High Court. As the batch was scheduled to be imparted first ever pre-service/probationers extensive training for four weeks he wanted to hand over the Bench book to every one of them. I being head of research wing and with the permission of the Director General took it to myself to honor the desire of the Director General and with the grace of Allah Almighty have been able to come up with this Bench book. The format of the book is such that every one especially new comer in judiciary should have easy access to relevant law with reference. Effort is also made to give reference to delegated legislation and case law also where relevant and possible without overburdening the user. In some cases the text of original law is included in Annexure part appended to Book where the user needed the full relevant text. Some managerial tips are also given in the Book with detailed documents in Annexure part. Indeed the Book is not comprehensive enough to cover each and every law but effort is made to include, at least, the maximum and important laws of daily use. The users are expected to update their personal Bench book with all new amendments so as keep the book current with changed legal position.
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All proposals for improvement in the future edition of the Book shall be welcomed.
Date: 21-3-2016
Niaz Muhammad Khan Senior Director (Research & Publications) KP Judicial Academy Peshawar.
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Chapter I - The Structure of Constitution Introduction 1.1
Pakistan has a written Constitution (The Constitution of the Islamic
Republic of Pakistan, 1973). The predecessor constitutions are Government of India Act 1935, Constitution of 1956, Constitution of 1962 and Interim Constitution of 1972. All legalities flow out of the Constitution. Pakistan is a Federal Republic to be known as Islamic Republic of Pakistan (Article 1 of the Constitution of the Islamic Republic of Pakistan). Islam is the State Religion of (Pakistan Article 2 of the Constitution of the Islamic Republic of Pakistan). The limits of each organ of state are circumscribed by the Constitution. The limits of judiciary are also determined (Article 175 of the Constitution of the Islamic Republic of Pakistan). All laws shall be void if inconsistent or in derogation of Fundamental Rights (Article 8 of the Constitution of the Islamic Republic of Pakistan). The vires of an Article of the Constitution can be looked into by the Supreme Court if against the grund norm (the Objective Resolution-Article 2A-- PLD 2015 SC 401). The trichotomy of powers is the main feature of the Constitution with legislature, judiciary and executive functioning within the allotted spheres. The laws are framed by the legislature, interpreted by the judiciary and executed by the executive.
Legislation 1.2
Pakistan is a Federation having central and provincial legislatures.
The Federal Legislature is bicameral (upper house is Senate and lower house is National Assembly collectively called Majlis-e- shoora (Parliament) including the president). The provincial legislatures are unicameral and called Provincial Bench Book: A Guide for District Judiciary
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Assembly. The subjects of legislation are divided amongst centre and units. The Federal Legislature can legislate on subjects mentioned in Federal Legislative Lists and the Provinces can legislate on all residuary subjects. Article 142 reserves three subjects for concurrent legislation of both the legislatures. However in case of inconsistency between these laws the one framed by Federal Legislature shall prevail (Article 143)
Modes of Legislation 1.3
The Constitution lays down two basics modes of ordinary legislation.
One is temporary legislation (which expires by efflux of time fixed by constitution) and second is permanent (which does not expire as such). The former is called Ordinance and later as Act. There is no difference in effect and restrictions of both types of laws so long as they occupy the field. The former is allowed to be made in urgency by executive without consulting legislature when legislature is not in session. It can be extended only once if approved by concerned house (National Assembly in case of Federal Law) or legislature (Provincial Assembly in case of Provincial Law).In order to convert it in to permanent law the concerned legislature shall have to approve it before expiry. An Act is regular way of legislation by concerned legislature and is made by simple majority of concerned legislature. The legislature cannot enact a law which is inconsistent or in derogation of Fundamental Rights guaranteed by Chapter I of the Constitution. The Constitutional legislation can be made by Federal Legislature only by two third majority of both the houses of Majlis-eshoora (Parliament-See Part XI of the Constitution).Normally one Legislature cannot legislate for other but when the legislature of a Province so allows by a resolution then Federal Legislature can legislate for the province. But once made the concerned Provincial Legislature can repeal or amend the law so enacted(Article 144 of the Constitution).Similarly in case of Emergency the Bench Book: A Guide for District Judiciary
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Majlis-e- shoora shall have power to make laws for a Province, or any part thereof, with respect to any matter not otherwise within the legislative competence of Federation.( Article 232 of the Constitution)
Delegated Legislation 1.4
Both constitutional law and ordinary laws can further empower any
body or person to legislate for regulating the Constitution or concerned Law (Article 99 and 139 of the Constitution and concerned provision of different laws-some of which are given in Annexure A conferring powers on High Courts). Such legislation is normally called delegated or subordinate legislation. But once this delegated legislation is made in accordance with the rules of legislation not violating the principle of harmony with parent law then it assumes the status of parent law in effect and restrictions (Bennion’s Statutory interpretation” 1984 edn.p-152,Section 64 as referred to by SM Zaffar on page 762 in understanding the statutes by Brite Books).
Executive 1.5
The executive authority of the Federation shall extend to the matters with
respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. The executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws. Provided that, in any matter with respect to which both Majlis-e-Shoora (Parliament) and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made Bench Book: A Guide for District Judiciary
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by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities thereof. On the recommendation of the Federal Government, Majlis-e-Shoora (Parliament) may by law confer functions upon officers or authorities subordinate to the Federal Government. On the recommendation of the Provincial Government, the Provincial Assembly may by law confer functions upon officers or authorities subordinate to the Provincial Government. (Article 97,98, 99, 137, 138 & 139 of the Constitution). The outlines of structure of Federal and Provincial Governments have been given in Chapter 3 of Part III and Chapter 3 of Part IV of the Constitution.
Courts 1.6
The Constitution provides for two types of courts. The Superior Courts
(Supreme Court, Federal Shariat Court and a High Court for each province) and ordinary courts. The superior courts are created by the Constitution itself. All other courts are created by ordinary laws (Article 175 of the Constitution of the Islamic Republic of Pakistan). 1.7
The jurisdiction of Superior Courts is mainly delineated by the
Constitution itself (Article 184 to 191,199 TO 203 and Chapter 3A—Annexure B). Ordinary laws can also confer other jurisdictions on superior courts like Civil Procedure Code, Criminal procedure Code etc. The rules of procedure for constitutional jurisdiction and other jurisdiction can be laid down by Superior Courts subject to the Constitution and law (Article 191,202 and 203J). 1.8
The ordinary courts mainly called District Courts are established under
ordinary laws. These courts can further be divided in two categories. The overall superintendence and control of these courts lie with the High Court (Article 203 of the Constitution—Also see Mehram Ali’s case reported as PLD 1998 SC 1445). The first category is of courts of general jurisdictions established under the general law and second category is of special courts Bench Book: A Guide for District Judiciary
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created under the special laws. The courts of general jurisdiction have the plenary jurisdiction to deal with all types of cases unless some special forum is established under the special laws. Section 9 of the Civil Procedure Code, being general civil law, puts all civil cases within the jurisdiction of ordinary civil courts unless their jurisdiction is either impliedly or expressly barred. The civil courts of general jurisdictions have been raised by the West Pakistan Civil Courts Ordinance, 1962. The hierarchy of civil courts with their jurisdictions is given in Annexure C. Similarly the criminal courts of general jurisdiction are raised by the Code of Criminal Procedure, 1898. The hierarchy of criminal courts with their jurisdictions is given in Annexure D. The appellate or revisional powers in both civil and criminal cases are also given to High Courts or Federal Shariat Courts under ordinary laws. Some courts of special civil jurisdictions are Family Courts, Rent controller, Land Acquisition Tribunal, Tribunal under Encroachment Law and the like.
Independence of Judiciary 1.9
The independence of judiciary is one of the basic features of the
Constitution as enshrined in the Objective Resolution. No law including constitutional amendment can be made which abridges the power of the Judiciary to the detriment of its independence (PLD 2015 SC 401).The judiciary is empowered to check the legislative and executive powers. In order to ensure independence of judiciary the appointment and removal of judges of superior court have been taken out of substantive control of executive(Article 175-A of the Constitution as amended by 18th and 19th Amendments-Article 209 of the Constitution-Annexure E).The appointment, removal, administrative & judicial control of ordinary courts also rest with respective High Courts- ( PLD 1998 SC 1445--2009 PLC (CS)841- PLD 2010 SC 879, 1182-- PLD 2011 SC 407--2011 Bench Book: A Guide for District Judiciary
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SCMR 1030).The constitutional mandate of independence of judiciary from executive was carried out by legislature and executive on the basis of judicial pronouncements(PLD 1994 SC 105- PLD 1989 K 404
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Chapter II: Judicial Ethics 2.1
Despite protean face of justice one element cannot be eliminated from
justice in any situation or period which is ‘fairness’. The fairness of law can further be disputed amongst different schools of thought in different periods or situations but fairness of arbiter can never be a dispute. An arbiter devoid of attributes of fairness can never be a confidence inspiring decider. Technically the decision might be correct but if arbiter is not fair or reputed to be unfair then his decision shall not be accepted from the core of heart of the parties and especially the aggrieved. But if decider is fair then human mistakes and errors are ignored by the aggrieved even. The age old adage “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” refers to the fairness of the judge. The fairness though an internal phenomenon can be exhibited overtly to a great extent. Such overt actions should have some identifiable and measurable elements both for the actor and for evaluator. These elements are incorporated in to legal norms to be observed by members of judiciary. This legal norm is called code of conduct. The code of conduct for members of superior judiciary is devised by Supreme Judicial Council under Article 109 of the Constitution (Annexure F) whereas for members of District Judiciary by the High Court (Annexure G).Since the members of District Judiciary are also civil servants within the meanings of Khyber Pakhtunkhwa Civil Servants Act ,1973, they are also bound to honor the Khyber Pakhtunkhwa Government Servants( Conduct) Rules 1987.Any violation of the Code of Conduct or the Rules as aforesaid shall tantamount to ‘misconduct’ and culpable under Government Servants (Efficiency & Discipline) Rules, in force, for the time being.
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Chapter III: Courts, laws and precedents 3.1
To decide the disputes the judges are to understand the system under
which they are to work. The difference of legal system results in different approaches towards procedure, the weight and place of law and precedents and the whole body of legal structure depends on the system. We have common law system being a legacy of colonial era. In this system the precedents are given due weight in interpreting laws and deciding rights. Sticking to earlier decision in similar situations is called principle of ‘stare decisis’. This principle ensures certainty and predictability resulting in rule of law and transparency being element of good governance. The following part deals in detail the place of precedents in our system 3.2
The hallmarks of justice are that it should be certain, and should be
universal. The doctrine of precedent was developed to provide the necessary certainty and universality. At its heart is a very simple principle: the Law expounded in one case should be followed in later, similar cases means keep to the rationes decidendi of past cases”, or literally, “stand by the thing which has been decided.” The rationales for the doctrine of precedent are:
Certainty
Equality
Efficiency
And appearance of justice.
3.3 Each court is bound by the decisions of higher courts in the same judicial hierarchy. The highest court in a judicial hierarchy can overrule its previous decisions. A judge does not have to follow the decisions of other judges at the same level in the same judicial hierarchy. These decisions will however be highly persuasive in the interests of consistency. A decision of a court in a different hierarchy may be of considerable weight, but will not be binding. Only
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the Ratio Decidendi is binding. Obiter Dicta, although not binding, may be very persuasive. 3.4
Article 189 of the Constitution of Islamic Republic of Pakistan reads as
“Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan”.
Decision of own High Court:In the second place the decision of our own High Court is binding on all courts subordinate to it .Article 201 of the Constitution reads as under.“Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it” Subject to the Article 189 means that if a decision on the same point is delivered by the Supreme Court that shall prevail.
Conflicting views of different High Courts,In case of contrary view of two High Courts on one point the decision of our own High Court is to be followed irrespective of the chronological consideration (1983 CLC 2382).
Conflicting views of different High Courts other than own High Court,Where conflicting views of different High Court, other than own High Court, are in the field then subject to case the latest is to be followed.
Conflicting views of one High Court a) The decision of Full Bench of the Court cannot be dissented from by a Division Bench or a Single Bench. (PLD 1960 Lah 683).
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(b)
The decision of a Division Bench of the Court cannot be dissented from
by a Single Bench or by a Division Bench (PLD 1981 Kar 138, PLJ 1981 Kar. 194). (c)
The decision of a Single Bench can be dissented from by another or the
same Single Bench and can be over ruled by a Division Bench. (d)
The decision of a Single Bench can be dissented from by another or the
same Single Bench and can be over ruled by a Division Bench (PLD 1964 Kar 34, PLD 1960 Lah 687).
Conflicting views of the Supreme Court Where there is a conflict of opinion between two Benches of the Supreme Court, the High Court should follow the larger Bench in preference to that of a smaller Bench (AIR 1976 C 2433, PLD 2004 SC 600, PLD 2007 SC 79).
Decision of Privy Council and Federal Court of India,The Government of India Act 1935 enacted that the law laid down by the Federal Court and the Privy Council should be binding upon all the Courts of the sub-continent of India. That law remained applicable to the Courts in Pakistan after the partition .After independence where there is a conflict of opinion between the Privy Council and the Federal Court or the Supreme Court of Pakistan, the law declared by the Federal Court or Supreme Court will be binding on the Courts of the country. It is however to be noted that though the decision of the Privy Council are not binding in Pakistan yet being expositions of law by one of the highest judicial tribunals in the world can be considered as guidelines for proper exposition of law (PLD 1956 S C 331, PLR 1956 Lah 202). Until a Privy Council decision is superseded by a Supreme Court decision on the point, the Privy Council decision shall continue to be binding upon the High Court and the subordinate Courts as at the commencement of the Constitution. Bench Book: A Guide for District Judiciary
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Pre-Independence Privy Council and High Court decision,The Privy Council judgment will prevail inasmuch as the Privy Council was the final Court of appeal from the High Courts.
Pre- Independence Privy Council and Federal Court decision,The Privy Council was a Court of Appeal also from the Federal Court. Hence the High Court would be bound to follow the Privy Council decision.
Pre- Independence Privy Council and Supreme Court decision,The Supreme Court decision will prevail. All Courts in Pakistan are bound to follow the decision of the Supreme Court even though they are contrary to decisions of the Privy Council.
Pre Independence Privy Council and post- Independence High Court decision,Though such Privy Council decision cannot prevail as the decision of the final Court of appeal, and a subordinate Court would be bound to follow the decision of its own High Court, it will have ‘persuasive’ authority of great weight so far as that High Court and other High Courts are concerned. The decisions of other English Courts have only a persuasive force in Pakistan.
Reported & Unreported Cases,The cases of Superior Courts whether reported or unreported have got the same binding force. (PLD 1968 Lah 148)
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Binding Nature of Precedents,Principles of law laid down by Superior Courts are not only guidelines for decision by Subordinate Courts but also in the nature of dicta to be rigidly followed by those. (PLD 1982 Lah 214 , PLJ 1982 Cr 101).
Precedent cases fall in two distinct categories,(i)
Those decisions which decide a question of law or are based upon or
enunciates a principle of law within the meaning of Article 189 read with Article 201 of the Constitution. (ii)
Those cases which are not so binding but are merely illustrations of the
application of the principles of law enunciated in the first category of precedent cases (PLD 1987 Lah 633).
Course for subordinate court in following the precedents,- The Subordinate Courts are to implicitly follow the decision pronounced by the High Court and any attempt on their part to criticise these decisions or to refuse to follow them ( AIR 1946 All 509)or to distinguish the rulings on flimsy grounds is deprecatory(1970 PCrLJ 765 Lah) The Subordinate Courts have no choice in the matter. They have not to Judge for themselves whether the decision is correct or incorrect. A Judicial precedent of a High Court does not cease to be binding upon Subordinate Courts merely because all the relevant reasons in support of or against the view taken by the High Courts are not mentioned in the Judgment or actual decision is based upon a reason which does not appeal to the subordinate Judge.(AIR 1946 All 509).Where there are two possible views about a matter it is better that view should be followed which has been already held to be correct by that Judges in previous decision(AIR 1946 All 448)
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Kinds of Laws and Interpretation 3.5
The primary function of courts is to interpret law. But this is not possible
until courts understand different types of statutes and laws and their constitutional status. To deal with the types of legislation the following list shall help a lot in understanding the variety of statutory documents. Kinds of Laws:A.
Constitutional
B.
Sub Constitutional
a.
Act (Article 75& 116 of Constitution)
b.
Ordinance (Article 89 & 128 of Constitution)
c.
Order [Article 59 (1) (b)- Article 66 (3) -Article 160(4) (6) (7)- Article
168(3)& 169-Article 233 (2)- 247(6)- Article 250(b)- Article 258-Article 267Article 268(3) of Constitution] d.
Regulation( Article 247(4) –Article 247(5) of Constitution]
C.
Delegated (Secondary –Regulatory-- Subordinate – Subsidiary)
D.
Rules( delegated)
E.
Regulations- This is delegated and not the one described above which is
sub constitutional. F. 3.6
By laws (delegated) While interpreting the above mentioned laws the primacy shall be given
to Constitution and no sub constitutional legislation can be made which militates against the Constitution. Similarly delegated legislation cannot be framed which is in conflict with parent law. In case of contradiction between Federal and Provincial Laws within the legislative competence of both, the Federal law is to prevail (Article 243 of the Constitution). In case of general law and special law dealing with the same subject special law shall prevail and in case of conflict between local and special law local law shall prevail (AIR1930 Mad963,968 &969 ). There are two types of repeal of statutes; express and Bench Book: A Guide for District Judiciary
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implied. Implied repeal shall not be readily presumed unless both the laws cannot stand together on any premise (PLD 2008 SC 779- 2002 CLD 1392PLD 2014 Peshawar 170- AIR 2003 SC 3236). If a word used in a statute has no definition in that statute then resort for definition can be made to concerned General Clauses Act for definition purposes. 3.7
While interpreting a statute the court should try to infer the intention of
the legislature from the text itself which is called textual interpretation by using literal approach and when such approach results in absurdity then courts can have resort to golden rule of resorting to favourable meanings to word in order to avoid absurdity if the word has more than one meanings or wider meanings to word having one meaning. Similarly the courts in such situation can resort to mischief rule or purposive interpretation (Section 24 A Federal General Clauses Act). The repeal of laws, in the absence of any provision in repealing law, shall have effect of saving the actions as mentioned in section 6 of Federal General Clauses Act or pari materia Section in Provincial General Clauses Act. The repeal of amending law simplicitor does not affect the amendment brought about in the main law by amending law (Section 6A of Federal General Clauses Act or pari materia Section in Provincial General Clauses Act). In order to revive a repealed law mere repeal of repealing law shall not be sufficient unless express revival is made by new law (Section 7 of Federal General Clauses Act or pari materia Section in Provincial General Clauses Act).
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Chapter IV: Fair Trials 4.1
The trial mainly gives the impression of a procedure to be followed by
courts in dealing with a case. There are mainly two different types of trials i.e. civil and criminal. The civil disputes are proceeded in accordance with civil procedure and criminal disputes in accordance with criminal procedure. There are then general and special procedural codes for civil trials and criminal trials. The general procedural codes are in detail covering maximum possible stages of proceedings while special procedural laws are not of so much detail. Some special civil law and criminal law give their own special procedure and in matters not covered by those special procedure the courts are empowered to have resort to general law on the subject. But there are certain special statutes which make the general procedural code inapplicable at all. Irrespective of applicable procedure the present position in Pakistan after the insertion of Article 10A in the constitution has made the adherence to basic principles of fair trial as necessary. Now no law can exclude the basic criteria of Fair Trial and due process. 4.2
In fact we were and are obliged to honour our international commitments
in this regard. The following provisions in International Covenant on Civil and Political Rights (ICCPR)to which Pakistan is a signatory shall give the idea of our responsibility. •
It is guaranteed under Article 14 of the International Covenant on Civil
and Political Rights (ICCPR), which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” •
Article 9(1) of the ICCPR provides that “everyone has the right to liberty
and security of person.”
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•
Article 9(2) of the ICCPR provides that “Anyone who is arrested shall be
informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” •
Article 9(3) of ICCPR refers specifically to the rights of a person arrested
or detained on a criminal charge, who “shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” •
Article 9(4) of ICCPR provides for the right to habeas corpus, that is, the
right of anyone deprived of liberty by arrest or detention to “take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” What is the basic criterion of fair trial and due process is now an accepted phenomenon. Some of the ingredients of fair trial and due process are given below.
Pre-Trial Rights 1. The Prohibition on Arbitrary Arrest and Detention. 2. The Right to Know the Reasons for Arrest. 3. The Right to Legal Counsel. 4. The Right to a Prompt Appearance Before a Judge to Challenge the Lawfulness of Arrest and Detention. 5. The Prohibition of Torture and the Right to Humane Conditions during Pretrial Detention. 6. The Prohibition on Incommunicado Detention
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The Hearing 1. Equal Access to, and Equality before, the Court. 2. The Right to a Fair Hearing. 3. The Right to a Public Hearing. 4. The Right to a Competent, Independent and Impartial Tribunal Established by Law. 5. The Right to a Presumption of Innocence. 6. The Right to Prompt Notice of the Nature and Cause of Criminal Charges. 7. The Right to Adequate Time and Facilities for the Preparation of a Defense. 8. The Right to a Trial without Undue Delay. 9. The Right to Defend Oneself in Person or through Legal Counsel. 10. The Right to Examine Witnesses. 11. The Right to an Interpreter. 12. The Prohibition on Self- incrimination. 13. The Prohibition on Retroactive Application of Criminal Laws. 14. The Prohibition on Double Jeopardy.
Post-Trial Right 1. The Right to Appeal. 2. The Right to Compensation for Miscarriage of Justice.
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Chapter V: Civil Trial 5.1
The challenge for civil courts is to ensure basic principles of fair trial on
one hand and expeditious justice on the other. This really is a daunting task but it can be overcome provided the courts follow the basic scheme of case management. The case management shall be discussed in another separate chapter. Here we are to see that how a civil case is tried and what procedural steps are required for courts to follow.
Jurisdiction 5.2
The first step for the court is to see whether the court has jurisdiction
because no step can be taken by a court without jurisdiction. In determining the jurisdiction the court is to know her jurisdictional bounds as to territory, subject matter, and pecuniary. If the case falls outside the above mentioned powers the court should not hear it rather it should be returned to party presenting it for presentation before proper forum (Order VII, Rule 10 CPC).Sometimes the determination of the question of jurisdiction involves some evidence then the court is to see the evidence recorded for the purpose and then decide its jurisdiction.
Summary Rejection 5.3
The second important stage is the summary rejection of plaint at initial
stage in order to avoid the protracted proceedings in cases liable for summary rejection on technical grounds. These grounds can be non disclosure of cause of action, under valuation of suit and barred by law (Order VII, Rule 11 CPC). For the purpose of procedure for receiving plaint, appeals and conduct of proceedings etc see Section I & II, Vol II, KPDCR.
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Parties and their appearance 5.4
The court is then to see whether all necessary parties have been included
in the plaint and whether any unnecessary party is included. If it is so then the court should take steps at initial stages to correct the defect by adding or striking out parties or by ordering separate trials (Order I CPC).While issuing processes for the appearance of the parties care must be taken that in civil litigation the parties can appear through their authorized agents or pleaders (Order III CPC).
Processes 5.5
Before issuance of processes in civil cases the order for deposit of process
fee is must save those cases exempt from court fee under the law, in force, for the time being [KP Court Fee (Abolition ) Ordinance,1978 read with KP Ord No 27 of 1980- PLD 1979 Pesh 33,1988 SCMR 1660]. The court before issuing processes is to see whether summons is to be issued for final disposal of case or for framing of issues only (Rule 5 of Order V CPC-Section XXV of Vol I, Section VIII, Vol II of KPDCR and Section XIII of KPDCR).At the same time the summons shall contain an order to defendant to produce all documents in his power or possession(Rule 7 of Order V CPC).Each summons shall be accompanied by a copy of plaint or concise statement(Rule 2 of Order V CPC).In case of failure to serve the summons personally or through agent substituted service may be made by process server himself (Rule 17 of Order V CPC) or court may order for substituted service (Rule 20 of Order V CPC).The court may also instead of summons issue letter to defendant in certain cases(Rule 30 of Order V CPC).Service on sailors, soldiers or airman shall be made through commanding officer (Rule 28 of Order V CPC). Service on civil public officer or on a servant of Railway company or local authority shall be made as mentioned in Rule 26A of Order V CPC. Service in foreign territory Bench Book: A Guide for District Judiciary
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can be made as mentioned in Rule 26 of Order V CPC. The proceedings after appearance of parties or non appearance can be made in the manner mentioned in Order IX CPC. Under this order the court in case of willful non appearance of a party may proceed ex parte or pass ex parte decree. On sufficient cause shown and within limitation the ex parte proceedings and decree can be set aside.
Defence and issues 5.6
After appearance the defendant can file written statement along with all
documents and he can also claim set off in the written statement. In case of set off the plaintiff is entitled for replication and in all other cases further pleadings can be filed on sufficient grounds with leave of the court (Rules 1, 6, and 9 of Order VIII CPC). If the parties are at issues then court shall frame issues and if case can be decided on the basis of issues of law only then court shall decide those issues first (Rules 1 & 2 of Order XIV CPC).
Disposal of case at first hearing 5.7
If the case is fixed for final settlement the case can be decided on first
hearing if either party fails to produce evidence (Rule 4 of Order XV CPC).The case can be decided on first hearing though not fixed for final hearing if parties are not at issue (Rule 1 of Order XV CPC).
Witnesses 5.8
The parties are required to file a certificate of readiness to produce
evidence not later than seven days after the settlement of issues (Rule 1 of Order XVI CPC). The parties shall also submit list of witnesses whom they wish to call and the witnesses shall be called at the expense of the parties summoning them (Rule 2 of Order XVI CPC).On failure to appear the coercive measure can be adopted (Rule 10 of Order XVI CPC). Court on its own call any witness Bench Book: A Guide for District Judiciary
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stranger to suit (Rule 14 of Order XVI CPC).Normally it is the plaintiff who has right to begin and examine witnesses (Rule 1 of Order XVIII CPC).The examination of witness shall be made in presence of judge and he is to allow or disallow any question put to witness. The court may also record demeanour of witnesses and court may recall any witness already examined (Rule 12 &17 of Order XVIII CPC).The court has power to order any point to be proved on affidavit (Order XIX CPC).
Judgment and decrees 5.9
After recording evidence of both the parties and hearing arguments the
court shall announce judgment in open court. At the time of pronouncing the judgment the same should be dated and signed (Rules 1 &3 of Order XX CPC). The court is to give decision on each issue separately with reasons if issues are framed (Rule 5 of Order XX CPC).The decree prepared should agree with the judgment. The decree shall also state the amount of costs in the suit and by whom and out of what property the same is to be paid (Rule 6 of Order XX CPC-(Section XIV, XV, XVI, Vol II, KPDCR).In case of decree of immovable property the description of property is to be given and in case of movable property the amount of money to be paid in the alternative (Rules 9 &10 of Order XX CPC. Decree may direct payment in installments (Rule 11 of Order XX CPC).In suit for partition, dissolution of partnership, administration suit and account between principal and agent a preliminary decree may be passed (Rules 13,1516 & 18 of Order XX CPC).In case of pre-emption decree the decree shall specify the date by which the purchase money is to be paid. The decree shall also contain direction as to delivery of possession by the date and failure to deposit shall result in dismissal of suit (Rule 14 Order XX CPC). In pre-emption decree the plaintiff shall be supplied with some information through a slip. In such cases the appellate court shall be informed about the sum, if any, paid by Bench Book: A Guide for District Judiciary
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the plaintiff and the date of payment (Rules I-IV of Section VI of Vol I of KPDCR)
Execution 5.10
The sections of CPC dealing with the subject are from section 36 to 74
and Order XXI. The detailed rules framed by the High Court on the subject can be find in Section V, Vol I & Section XXI,Vol II of KPDCR. All questions pertaining to execution shall be determined by executing court and no separate suit lies ( Section 47 CPC).The definition of court which passed the decree is Court of first instance and if abolished the court having jurisdiction currently in the decided matter. The transferee court is also included in this definition. The provision of CPC applicable to execution of decrees also apply to orders (Section 37 CPC).The following are the modes of execution of decree as delineated by section 51 CPC;
by delivery of any property specifically decreed[(Order 21 Rule
31(Movable)Rules 35,36(Immovable) Rules 95,96 of CPC (Auction Purchaser)]
by attachment and sale or by the sale without attachment of any
property;[ Section 60-67 Rules 41-94 of Order XXI CPC]
by arrest and detention in prison;[Sections 55-58 Rules 30,31,32,33&
37-40,98 of Order XXI CPC ]
by appointing a receiver; [Order XL CPC]or
in such other manner as the nature of the relief granted may require:
The other manners can be;
Partition of the property ( Section 54 of CPC)
Execution of decree by collector (Sections 68 to 72 CPC)
Compensation in lieu of delivery of movable property (Order XX Rule 10
CPC)
Specific performance of agreement (Rule 32 of Order XXI CPC )
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Restitution of conjugal rights (Rule 33 of Order XXI CPC)
Execution of documents (Rule 34 of Order XXI CPC)
Attachment of a decree (Rule 53 of Order XXI CPC)
Limitation for application of execution is three years and six years (Article 182 of Limitation Act & Section 48 CPC). Sections 49 & 50 - 52 CPC deals with liability of successors and transferee of decree. The following provisions of CPC deal with arrest and detention in execution of decrees;
Order XXI Rule 30. Detention in money decree apart from attachment &
sale.
Order XXI Rule 31. Detention in decree for specific movable property
apart from attachment, sale & seizure of specifics.
Order XXI Rule 32. Detention in decree for specific performance &
injunction apart from attachment & sale.
Order XXI Rule 33. In case of conjugal rights against husband &
periodical payment in execution –the same as money decree
Order XXI Rule 98. Resistance/obstruction by JD or on his behalf.
The following procedure is to be observed in arrest and detention of judgment debtor under Section 55 and different rules of Order XXI CPC;
The JD may be arrested any time after sunrise and before sunset (Section
55).
Maximum imprisonment up to one year (Section 55).
No outer door is to be broken unless refuses access thereto (Section 55).
Room door may be broken in which Judgment Debtor is suspected
(Section 55).
Room in occupancy of women (pardanasheen) who is not Judgment
Debtor can be broken in to after notice & facility of withdrawing (Section 55).
If arrest is made in money-decree then Judgment Debtor is to be released
the moment he pays the decretal amount (Section 55). Bench Book: A Guide for District Judiciary
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In money decree application for execution through arrest & detention
show cause notice is must. Exception of notice is on the satisfaction of court as to abscondence or leaving the jurisdiction (Rule 37).
On appearance first inquiry is conducted and then order of committal or
release (Rule 40).
Non discharge of liability due to imprisonment-but no re-arrest (Section
55).
Non arrest of woman in execution of money decree (Section 56 CPC). A judgment debtor may be released on following grounds;-
Payment of decretal amount (Section 58 CPC).
Satisfaction of decree (Section 58 CPC)..
On the request of decree holder (Section 58 CPC)..
Pending inquiry JD may be released on furnishing security (Rule 40
Order XXI CPC) The following are the guidelines for arrest and detention in execution of decrees under Sections 55 & 62 CPC;
No person executing any warrant of arrest or process of execution
directing or authorizing seizure of movable property shall enter any dwelling house after sunset and before sunrise.
No outer-door of a dwelling-house shall be broken open unless such
dwelling-house is in the occupancy of the judgment debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.
Where a room in a dwelling-house is in the actual occupancy of a woman
who, according to the customs of the country does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw ; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the Bench Book: A Guide for District Judiciary
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purpose, of seizing the property or arrest, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.
No Judge, Magistrate or other judicial office shall be liable to arrest
under civil process while going to, presiding in, or returning from, his Court (Section 135(1) CPC).
Where any matter pending before a tribunal having jurisdiction therein,
or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal (Section 135(2) CPC) No person shall be liable to arrest or detention in prison under civil process: (a) If he is member of Legislature during the continuance of any meeting of such Legislature. (b) If he is member of any committee of such, during the continuance of any meeting of such committee; and during the fourteen days before and after such meeting of sitting (Section 135 A (1).
In case of decree against Government or public officer in his official
capacity a time shall be specified in decree in which it shall be satisfied and if the decree is not satisfied within that period then the matter shall be reported for the order of the Government. It shall not be executed unless it remains unsatisfied for three months from such report (Section 82 CPC).
No arrest or attachment of property of officer against whom decree is
passed in official capacity (Section 81 CPC)
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Withdrawal, Payment in court, Security & Commission 5.11
The plaintiff may at any stage withdraw from suit or abandon part of
claim against all or any of the defendants. The plaintiff may also withdraw suit with permission of the court to file fresh suit in case there are some formal defects (Rule 1 Order XXIII CPC). The suit or any part may be decreed on the basis of a lawful compromise (Rule 3 Order XXIII CPC).The defendant may also deposit any sum in a suit to recover damages or debt which he considers as full satisfaction of claim. The court shall give notice of such deposit to plaintiff and plaintiff shall not be entitled for any interest after this notice (Rules 1-4 Order XXIVCPC).The court may ask plaintiff to deposit security for costs under certain circumstances (Rule 1 Order XXV CPC).The court may issue commission for examination of witnesses, spot inspection, for examining accounts and making partitions (Section 75 & Order XXVI CPC).
Suit involving Government 5.12
In suit by or against Federal Government or Provincial Government the
name of concerned Government is to be used (Section 79 CPC).Requirement of notice of two months to concerned secretary of Government or Collector of district is to be given. Non service of such notice shall disentitle the plaintiff to costs and court shall allow three months time for filing of written statement (Section 80 CPC). Suits against Government can be heard only by First class civil judge and at district headquarters (Section 24 of West Pakistan Civil Courts Ordinance- Para 4 of Section XX of Vol II of KPDCR) .Reasonable time be allowed to Government for communication (Rule 5 Order XXVII CPC).
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Suits involving Military, Corporations, Firms & Trustees etc 5.13
Any person subject to military law can authorize another person for his
representation and appointment of pleader (Order XXVIII CPC-Section VII of Vol II KPDCR). In case of a suit involving a corporation the pleadings can be signed or verified by secretary/ director or any principal office. Service on corporation can also be made through these persons (Order XXIX CPC). Any two or more partners may sue or be sued in the name of firm. In such suit the names of the partners shall be disclosed on demand of defendants. Service can be made upon any partner or at the principal seat of business. In case of death of any partner the right to sue survives and no need of impleading LRs. No execution of decrees between co-partner shall be issued without the leave of the court ( Order XXX CPC).In suits regarding property vested in trustee, executor or administrator the trustee, executor or administrator can sue and court can order for joining all other trustees etc as party (Order XXXI CPC).
Minors and persons of unsound mind 5.14
Suit by minor can be instituted through next friend. The minor defendant
can be sued through guardian ad litem. The plaint is to be taken off the file if suit is brought without next friend. The persons qualified to act as next friend or Guardian of minor can be those having no conflict of interest with minor (Rules 1-4 Order XXXII CPC). Any agreement or compromise in suit can be made by next friend or guardian with leave of the court (Rules 6-7 Order XXXII CPC).The retirement, removal and substitution of next friend or guardian can be made as per procedure given(Rules 8-11 Order XXXII CPC). On attaining majority the minor can adopt any course mentioned in Rules 12-14 of Order XXXII CPC. The same rules apply to suits of persons of unsound mind.
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Pauper suits 5.15
A pauper can bring a suit as such after fulfilling the requirements given
in Rules 2-4 of Order XXXIII CPC. The application shall either be rejected or accepted (Rules 5-8 Order XXXIII CPC). The success, failure or dispaupering of pauper is dealt with qua costs, court fee etc in accordance with Rules 9-16 Order XXXIII CPC.
Mortgages of Immovable Property 5.16 In any suit relating to mortgage all persons interested in mortgage are to be made parties. In case of foreclosure decree a preliminary decree shall be passed before a final decree (Rules 1-3 Order XXXIV CPC).In suit for sale also a preliminary decree shall be passed before final decree (Rules 4-6 Order XXXIV CPC). In suit for redemption also a preliminary decree shall be passed before final decree (Rules 8-8A Order XXXIV CPC).Other matters of interest, sale and application of proceeds are dealt with by Rules 11-14 of Order XXXV CPC.
Interpleader 5.17
An interpleader action originates when the plaintiff holds property on
behalf of another, but does not know to whom the property should be transferred. In this suit it is must that there is no clash between interest of plaintiff and defendant. Where the subject is capable of payment or deposit the plaintiff may be asked to pay or deposit in court. Where defendant sues the plaintiff the suit shall be stayed. Agents and tenants may not institute such suit (Rules 1- 5 Order XXV CPC).
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Special case 5.18
The parties may agree to refer a case for opinion of the court. After
entering in to agreement the same shall be filed in the court stating the value of property of dispute. The court shall then hear the case and decide it and a decree shall follow (Rules 1-5 Order XXXVI CPC).
Summary procedure on Negotiable Instruments 5.19
The summary procedure is applicable to High Court and District Court
and to any other court notified by the High Court. The summary suit on negotiable instruments can be filed by presenting plaint in the Form prescribed. The summons in such suits is also prescribed. The defendant cannot appear and defend unless leave of the court is obtained. In default of such leave the allegations in plaint shall be presumed to be correct and a decree shall be passed (Rules 1-2 Order XXXVIICPC). If leave to defend is granted then procedure given in Rule 3 of Order XXXVII is applicable.
Arrest and Attachment before Judgment 5.20
In certain circumstances the court may order the arrest of defendant and
attachment before judgment (Rules 1 -13 Order XXXV IIICPC).
Temporary injunctions and interlocutory orders 5.21
The court may in a pending suit grant temporary injunctions when the
property in dispute is in danger of being wasted, damaged or alienated or wrongfully sold in execution of decree or when the defendant with a view to defraud his creditors intend to remove or dispose of his property (Rule 1 Order XXXIX CPC). The court may also grant temporary injunction for restraining the Bench Book: A Guide for District Judiciary
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defendant from committing breach of contract or other injury of any kind (Rule 2 Order XXXIX CPC).In case of disobedience of order the court may attach the property or detain the defaulter in prison (Rule 2(3) Order XXXIX CPC).An interim injunctions passed in absence of defendant shall not ordinarily exceed 15 days (Rule 2-A Order XXXIX CPC).An order passed after hearing the parties shall cease to have effect on expiration of six months unless extended by court after hearing the parties and report submitted to High Court(Rule 2-B Order XXXIX CPC).Before granting injunctions notice to opposite party is must except in the case of sale of goods for default in payment at the stipulated time of a debt in respect of which the goods were pledged with any bank, or where the injunction is to be granted against Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government in any case not involving the ejectment of any person from or the demolition of, any premises, the Court may where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice: Provided further that the period of notice under this rule to Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government shall not be less than two days nor exceed seven days (Rule 3 Order XXXIX CPC).
Appointment of receiver 5.22
In fit cases the court may appoint receiver of any property before or after
decree by removing any person in possession of such property for purposes of bringing or defending suit and for the realization, management, protection, preservation and improvement of the property the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has or such of those powers as the Court thinks fit. The remuneration and duties of receiver are also mentioned. In Bench Book: A Guide for District Judiciary
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some cases collector may also be appointed as receiver (Rules 1-5 Order XL CPC).
Appeals from decrees & orders 5.23
In a decree passed in every suit an appeal shall lie as of right. Appeal in
only those order lies as are mentioned in Section 104 and Order XLIII CPC. The appeal from appellate decree lies only in the circumstances mentioned in Section 100 which are as under;•
the decision being contrary to law or to some usage having the force of
law. •
the decision having failed to determine some material issue of law or
usage having the force of law •
a substantial error or defect in the procedure provided by this Code or by
any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. This second appeal is further restricted by section 102 which restrictions are as under;No second appeal shall lie,•
in any suit of the nature cognizable by Courts of Small Causes (Now
Small Claims), and in any other suit, when the amount or value of subject matter of the original suit does not exceed the amount of value as the Provincial Government may determine.
5.24
The appeal shall be in form of memorandum to be signed and verified in
the prescribed manner (See Section XXIII & XXIV, Vol II KPDCR). It shall contain copy of the decree appealed against (Rule 1 Order XLI CPC). The appellant shall not be allowed to urge aground not taken in appeal but the court Bench Book: A Guide for District Judiciary
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may take in to account all grounds (Rule 2 Order XLI CPC).The memo of appeal can be rejected if not drawn in the prescribed form and can be resubmitted after correction within time allowed by court (Rule 3 Order XLI CPC). One of several plaintiffs or defendants may get relief for all (Rule 4 Order XLI CPC). An appeal by itself shall not operate as stay of proceedings or execution unless specifically stayed (Rule 5 Order XLI CPC).Such stay may be granted by lower court till time of appeal (Rule 5 Order XLI CPC).Security and costs can be taken from parties etc (Rules 6 &10 Order XLI CPC). The court may dismiss appeal without sending notice to lower court (Rule 11Order XLI CPC). If appeal is not dismissed then it shall be heard by giving notice to lower court (Rule 13 Order XLI CPC). The appeal shall then be heard in manner prescribed. The appeal can be dismissed in default and can be restored (Rules 17-19 Order XLI CPC).The respondent may file objection as if he has filed a separate appeal (Rule 22 Order XLI CPC).The appellate court may remand the case (Rule 23 Order XLI CPC). The appellate court has the same power of trial court has under Rule 23 (Rule 23A Order XLI CPC).Where evidence on record is sufficient appellate court may dispose of the case itself (Rule 24 Order XLI CPC). The appellate Court may if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required (Rule 25 Order XLI CPC). The appellate court may also take additional evidence in certain case (Rules 27-29 Order XLI CPC). The appellate court shall have all the powers in deciding appeal (Rule 33 Order XLI CPC). The same procedure is applicable to appeals in order as that of appeals in decree (Order XLII CPC).
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Reference, Review and Revision 5.25
In a case not subject to appeal or execution a res integra arises that can
be referred to High Court drawing up the statement of the facts of the case and point for determination. The court may pass decree contingent upon decision in reference. On receipt of decision from High Court the decision shall be made accordingly (Order XLVI CPC).
5.26
Any aggrieved person may file a review against decree or order from
which an appeal is allowed, but from which no appeal has been preferred or from a decree or order from which no appeal is allowed, or from a decision on a reference from a Court of Small Claim. The review can be on the grounds prescribed (Rule 1 Order XLVII CPC).
5.27 The High Court or District Court (subject to pecuniary jurisdiction) may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court and in which no appeal lies thereto, and if such subordinate Court appears •
to have exercised a jurisdiction not vested in it by law, or
•
to have failed to exercise a jurisdiction so vested, or
•
to have acted in the exercise of its jurisdiction illegally or with material
irregularity, the Revisional Court may make such order in the case as it thinks fit. If a revision application is made by a person he can do it within a period of ninety days and he shall also attach attested copies of relevant documents (Section 115 CPC).
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Costs 5.28
The courts do not take the issue of costs seriously. The result of which
is tendency of increase in frivolous litigation on one hand and non compensation of successful party on the other. The normal costs allowed under the law are also sufficient if proper attention is given to the issue. The compensatory costs under section 35 A CPC will add to the normal costs. The following abstract taken from Para 5 of Section XV of Vol II of KPDCR should be taken in to account for deciding the costs in a cause. “5. What are Costs.-The Code of Civil Procedure is silent as to what expenses are to be considered as included in the term “Costs.” Such expenses ordinarily fall under the following heads:-
a.
Court fee stamps on all necessary petitions.
b.
Process fees.
c.
Expense of proving and filing copies of necessary documents.
d.
Pleaders’ fees.
e.
Charges incurred in procuring the attendance of witnesses, whether such
witnesses were summoned through the Court or not. f.
Expenses of Arbitrators and Commissioners.
Pleaders’ fees are regulated by the rules contained in Volume. I, Rules and Orders, No. XXX”.
Apart from compensatory costs under Section 35-A CPC, the court must
pay attention to punitive court fee in case of frivolous litigation in suits of value of less than Rs 25000/( KPK Ord no 27 of 1980).
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Limitation 5.29
The application of law of limitation to suits, appeals etc is a very
complicated and important activity. The court should have command over application of law of limitation while deciding the question. Broadly no suit, appeal or application received after period of limitation prescribed under First Schedule of Limitation Act, 1908 can be entertained. The period so fixed is subject to determination by sections 4 to 25 of the Act (Section 3 of the Limitation Act, 1908). The courts should bear in mind that terminus a quem (the finishing point) can be determined only when terminus ad quo (the starting point) is properly applied to a cause which in some cases become a question of fact. The important sections from 4-25 of the Act are discussed here. Under section 5 limitation can be condoned in appeals or application for a revision or review of judgment or for leave to appeal and only those applications to which this section is made applicable by any law on the grounds mentioned in section 5 of the Act. It means section 5 is not extended to suits. However legal disability (Section 6), of time in legal proceedings (Section 12), defendant absence from Pakistan etc (Section 13), pursuing case in wrong jurisdiction under bonafide (Section 14), time during which proceedings are suspended (Section 15, 16), death before right to sue accrues (Section 17), fraud (Section 18), acknowledgment (Section 19) provide ample grounds for extension of time of limitation in suit and other applications.
Court Fee and Suit valuation 5.30
The determination of valuation of suit for the purpose of court fee is an
important step both for determining the required court fee to be affixed as well as pecuniary jurisdiction. Both these laws are interdependent. For the purpose of understanding the law on court fee the court must understand the difference between fixed fee and ad volerem fee. There are two schedules in the Court Bench Book: A Guide for District Judiciary
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Fees Act, 1870. Schedule I deals with ad valorem (according to value) fee and Schedule II with fixed fee regardless of value of suit. The second Schedule is easy to understand. But Schedule I is dependent on valuation of suit. This valuation is highly technical to calculate. Section 7 of the Act gives different types of suit and for each suit there is a separate formula for evaluation. Once this evaluation is made then the court fee is affixed according to that valuation as given in Schedule I. No court fee is charged on suit of value less than Rs 25000/- (KPK Abolition of Court Fees Ordinance 1978). The court, however, must pay attention to punitive court fee in case of frivolous litigation in suits of value of less than Rs 25000/ (KPK Ord no 27 of 1980).The valuation of suit for the purpose of jurisdiction is the subject of Suit Valuation Act, 1887. In majority of suit the valuation for the purpose of court fee and jurisdiction is the same but it may differ in some cases (Section 8 of Suit Valuation Act) . In all those suits in which valuation of suit for the purpose of jurisdiction is different Sections 3, 4 & 9 and rules framed there under should be consulted. For rules under these sections see Section XXXII, XXXIII of Vol I KPDCR. For reduction and remission of court fee under section 35 of the Court Fee Act see Section XXXIV of Vol I KPDCR. For cancellation of Court Fee stamps see Part C, Section XXXIV of Vol I KPDCR. A burning issue has always been the fixing of valuation of appeal for the purpose of jurisdiction. The rules on the subject can be found in Section VIII of Vol I KPDCR.
Ordinary Civil Courts of Plenary Jurisdiction 5.31
Section 9 of CPC empowers civil courts to try all suits of civil nature
unless their jurisdiction is either expressly or impliedly bared. But nowhere in CPC the civil courts have been defined or raised. It is West Pakistan Civil Courts Ordinance 1962 which by repealing earlier laws creating civil courts Bench Book: A Guide for District Judiciary
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raise these civil courts of general jurisdiction. Chapter II of the Ordinance mentions three classes of civil courts besides Small Causes Courts (Now Small Claims Courts) and other courts created by special laws.(Section 3 of the Ordinance) These courts are; •
Court of District Judge.
•
Court of Additional District Judge.
•
Court of Civil Judge.(Further divided in to classes in terms of pecuniary
jurisdiction-Section 9 of the Ordinance—See JEC 2 page266). A civil district is created by Provincial Government under Section 4 and a District Judge is appointed as its head under Section 5 in consultation with the High Court. The Additional District Judges are also appointed by Provincial Government in consultation with the High Court under Section 6 of the Ordinance. Additional District Judge shall perform such functions as District Judge may assign to him. The Court of District Judge has unlimited original civil jurisdiction and is, therefore, principal civil court of original jurisdiction (Section 7 of the Ordinance). Under the Succession Act 1925 it is basically the Court of District Judge to deal with cases under the Act. But under Section 12 of the WP Civil Courts Ordinance of 1962 High Court may authorize any Civil Judge to deal with such cases. The place of sitting of civil courts is fixed by the High Court which may be beyond ordinary local limits of the jurisdiction of the Court (Section 13 of the Ordinance). All civil courts in a District shall be subordinate to District Judge subject to general superintendence and control of the High Court ( Section 14 of the Ordinance).The District Judge may authorize in writing any court subordinate to him to receive and distribute cases cognizable by his court and courts under his control (Section 15 of the Ordinance)
5.32
An appeal from an order or decree passed by District or Additional
District Judge shall lie to the High Court if not otherwise specifically provided Bench Book: A Guide for District Judiciary
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by any law (Section 17 of the Ordinance).An appeal from a decree or order of a Civil Judge shall lie to the High Court if the value of the original suit in which order is made exceed one million rupees and to the District Judge in other cases (Section 18 of the Ordinance). The High Court may also authorize by notification any Civil Judge to hear appeals from orders or decrees passed by another Civil Judge (Section 18 of the Ordinance). The District Judge may while leaving the headquarters and proceeding to any other place within his jurisdiction or in the event of his absence from duty delegate to an Additional or in his absence to any Civil judge the powers of emergent nature of District Judge (Section 22 of the Ordinance). In the event of death of District Judge or absence due to other reasons and in absence of delegation as aforesaid the Additional District Judge or in his absence the senior most of the Civil Judge at the headquarters shall assume the powers of District Judge with respect to filing of suits and appeals etc (Section 21 of the Ordinance). In the case of absence of Civil Judge the District Judge may authorize another Civil Judge to perform his duties (Section 23 of the Ordinance). Only civil court of unlimited jurisdiction can entertain cases against Pakistan or any Province or any public officer as defined in clause 17 of Section 2 of CPC (Section 24 of the Ordinance).Such cases can be heard normally at District Headquarters ( Para 4 of Section XX of Vol II of KPDCR).
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Chapter VI- Case & Court Management 6.1
Since the courts are to ensure free trial and expeditious justice at the
same time. They usually fail to comply with both imperatives simultaneously considering these to be competing values in nature. But if committed efforts are made within the parameters of law the difficulty can be easily surmounted. This can be done through effective case management. The case management as understood today is not something new but is already present in the centuries old laws. The maker of the laws while visualizing these eventualities had interwoven the techniques of case management in the law. Some of these managerial techniques are highlighted below. •
Writing of order sheets by presiding officer himself.
•
Attention to original scrutiny of cases and appeals at the time of
institution. •
Return of plaint, complaint, memorandum of appeals etc at initial stage
for removing technical defects. •
Use of check lists at the time of receiving causes and during proceedings.
(Some Model Check lists are given at the end as Annexure H). •
If any cause is not supported by required documentation the proper order
be passed. •
If plaint or memorandum of appeal is not properly valued or not affixed
with required court fee then pass proper order at initial stage. •
If Court has no jurisdiction then pass appropriate order.
•
Fix dates of hearing with due attention of presiding officer.
•
Fix case as nearly as possible.
•
When PO is on planned leave he should not fix case on that day
•
Adjourn cases under supervision of PO one day before unexpected leave
or holiday.
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•
Put cases on fast track which are to be given priority and a separate
portion in daily cause list be reserved for fast track cases. •
Follow up of consignment of decided files.
•
Regular periodical inspection of own court
•
Regular & surprise inspections by District & Sessions Judge of all courts
in his district. •
Effective control over ministerial staff.
•
Preparation of chronological and stage wise lists of cases.
Civil •
Proper follow up of court processes including copy of statement annexed
to summons (Order V CPC). •
Summons for final disposal (Order V Rule 5 CPC).
•
Further and better statement, or particulars in the pleading (Order VI Rule
5 CPC). •
Return of plaint at early stages (Order VII Rule 10 CPC).
•
Rejection of plaint (Order VII Rule 11 CPC).
•
Examination of parties (Order X CPC).
•
Discovery, inspection, interrogatories and mode of proof (Order XI CPC).
•
Admissions (Order XII CPC).
•
Production of document at first hearing (Order XIII CPC).
•
Issues of law only (Order XIV CPC).
•
Disposal of suit at first hearing (Order XV CPC).
•
Disposal of appeal in limine (Order XLI Rule 11 CPC ).
•
Remand of cases should be avoided to maximum.
•
Avoiding issuance of interim injunctions mechanically.
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6.2
Use ADR techniques in order to fulfill the requirements of law. The
following Judicial Guidelines shall help Presiding Officers in dealing with the procedure of cases put on ADR track. These Guidelines are not inconsistent with law and can be resorted to under Rule 1A of Order X CPC.
Guideline No 1:- Every court is to see whether its jurisdiction in a case is dependant upon exhaustion of any precondition of Alternate Dispute Resolution. If any such precondition exists the court should refer the plaintiff or petitioner to such forum of Alternate Dispute Resolution. Guideline No 2:- In each case the court is to see that at which stage the court is to intervene for Alternate Dispute Resolution. If any law fixes a stage for such intervention then court must invite the parties at that stage for amicable settlement. If no such stage is fixed by law then the court should invite the parties at any appropriate stage when the chances of such settlement appear to be higher. Normally the pre issue stage is considered to be the right time.
Guideline No 3:-
As a first step of intervention before referral for amicable
settlement the court may arrange for orientation session of the parties by any expert who can convince the parties for amicable settlement by explaining the advantages of amicable settlement. Guideline No 4:- The court may then explain the details of different options of settlement fora including an accredited, registered or recognized mediator, a forum created by any law , a customary forum or any other person agreed by the parties for amicable settlement.
Guideline No 5:- The court may summon the parties in
person when the
circumstances so warrant at the stage of such intervention.
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Guideline No 6:- In case the parties agree to such referral the court may reduce the agreement in to black and white by obtaining the signatures of the parties or their recognized agents as may be present. Guideline No 7:- The court while referring the matter for amicable settlement may frame a brief summary of the case in non technical language for the understanding of the settlement forum. Guideline No 8:- The court in which a family cause has been instituted is to give consideration both at pre and post trial stage to the possibility of a reconciliation of the parties and if at any time it appears to the judge constituting the court, either from the nature of the case, the evidence in the proceedings or the attitude of the parties, or of either of them, or of counsel, that there is a reasonable possibility of such a reconciliation, the judge may do all or any of the following, that is to say, he may – (a)
adjourn the proceedings to afford the parties an opportunity of becoming
reconciled or to enable anything to be done in accordance with either of the two succeeding paragraphs; (b)
with the consent of the parties, interview them in chambers, with or
without counsel, as the judge thinks proper, with a view to effecting a reconciliation; (c)
nominate a person with experience or training in marriage conciliation, or
in special circumstances, some other suitable persons including family members of the parties, to endeavour to effect a reconciliation.
Guideline No 9:- The court may fix a reasonable time, if not fixed by law, for the disposal by the settlement forum by giving date of appearance before the forum to the parties. The court may subject to law stay the proceedings of case in the meantime. Guideline No 10:- Subject to law the court may allow such further reasonable time at the request of the settlement forum or parties. Bench Book: A Guide for District Judiciary
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Guideline No 11:- On receipt of decision of settlement the court may pass judgment subject to all legal, just and equitable exceptions. Guideline No 12:- I f the settlement involves any subject matter not in issue before the court, the same may be allowed to be made part of the pleadings subject to fulfillment of all legal requirements. Guideline No 13:- Subject to law the court may fix the fee of the forum of settlement to be borne by the parties as may be fixed by the court.
Criminal 6.3
The following steps are required for proper case management.
•
Proper follow up of court processes.
•
Ensuring that copy of FIR is timely supplied to court.
•
To ensure that investigation is completed within shortest possible time.
•
To ensure that complete report is submitted in court within time.
•
To ensure that case property is produced in court as per law.
•
To ensure that bonds for appearance of witnesses are duly obtained.
•
To ensure that proceedings u/s 87 & 88 CrPC are duly undertaken within
time with follow up. •
To ensure that proclamations u/s 523/524 CrPC are issued within time.
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Chapter VII: Special Civil Courts Family Courts 7.1
Prior to West Pakistan Family Courts Act the family disputes used to be
decided by civil courts being courts of general jurisdictions. Now after the promulgation of the Act it is the Family Court to decide the family matters. The jurisdiction of civil courts is now barred by Section 5 of the Act. All matters mentioned in Part I of the Schedule to the Act falls within the exclusive jurisdiction of Family Court. Some offences mentioned in Part II of the Schedule are also to be tried by Family Court where one of the spouses is victim of an offence committed by the other. The Part II has been added vide Family Courts (Amdt) Ord (LV) of 2002 along with insertion of subsection 2 to Section 5 of the WP Family Courts Act. In each District one or more Family Courts are to be established with appointment of a judge. At least one Family Court in each District is to be presided by a woman judge. The Government may appoint one woman Judge to be Family Judge of more than one District (Section 3 of the Act). The qualification of a Family Judge is to be or has been a District Judge, Additional District Judge, a Civil Judge or a Qazi appointed under the Dasturul-Aml Diwani, Riasat Kalat (Section 4 of the Act). All these courts have been declared as Family Courts under Rule 3 of West Pakistan Family Courts Rules, 1965. The place of sitting within the District can be fixed by District Judge subject to general or special order of Government. The application of Qanun-eShahadat Order, 1984 and CPC (except section 10 and 11) is barred (Section 17 of the Act). For regulating the procedure of Family Courts the West Pakistan Family Court Rules 1965 have been framed. In certain matter the Act has itself given the procedure. The procedure of institution of suit and service on defendant, written statement, reconciliation, recording of evidence ,summoning Bench Book: A Guide for District Judiciary
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of witnesses, interim order for maintenance, issuance of commission, appearance through agent, court fee etc have been given from Section 7 to 12-A, 15, 17-A,17-B, 18 to 20 of the Act. Section 21 makes the applicability of Muslim Family Laws Ordinance, 1961 or the rules framed there under applicable to the proceedings of dissolution of marriage, maintenance or dower by Family Court. Sub section 2 of Section 21 makes it mandatory to send a copy of decree by registered post within seven days of the passing of decree to concerned local council as referred to in Section 7 of the Muslim Family Laws Ordinance. The decree shall not be effective until expiration of period of ninety days from the day of sending the copy or if reconciliation has been made in accordance with the provisions of Muslim Family Law Ordinance. Though Family Court cannot issue injunctions or stay any proceedings under Section 22, it can issue such orders in certain circumstances (Section 21-A of the Act). Family Court is to inform concerned local council the fact of non registration of marriage under Muslim Family Laws Ordinance, 1961 (Section 24 of the Act). Under Part I of Schedule read with Section 5 of the Act the matters of Guardianships are within the exclusive domain of Family Courts. The Act has allowed the Family Court to follow procedure of Guardian and Ward Act,1890 and the Family Courts shall be deemed to be District Court for the purpose [Section 25 of the Act- Document C.No.4(4-1) JEC2].The forum of appeals are given in Section 14 as follows;•
High Court if judgment is passed by District or Additional District Judge
•
District Court in other cases.
There are certain restrictions on appeal in matters mentioned in sub section 2 of Section 14. No appeal or revision lies against interim order of Family Court (Sub Section 3 of Section 14 of the Act). Though CPC is not applicable to Family Courts, the execution proceedings shall be carried out by Family Court in accordance with the provisions of CPC (PLD 1989 K 82).The decree of Family Court can be executed by civil court if District Bench Book: A Guide for District Judiciary
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Judge transfers it to civil court (Section 13(4) of the Act).A fixed court fee of Rs 15/- is charged on any plaint or memorandum of appeal (Section 19 of the Act)
Rent Controller 7.2
The West Pakistan Urban Rent Restriction Ordinance, 1959 is enacted
basically to regulate increase in rent and eviction of tenant. Under West Pakistan Urban Rent Restriction Ordinance, 1959 the Controller is that judicial officer who is appointed to act as such by Provincial Government (Section 2(b) of the Ordinance). In pursuance of this subsection the following Notifications of appointment of Rent Controller have been issued.
All First & Second Class Civil Judges and subordinate Judges in West
Pakistan except Kalat Division are appointed as Rent Controller Vide WP Notification No. Judl 1-17-(4)/59 dated 24-7-64.
All third Class Civil Judges and subordinate Judges in West Pakistan
except Quetta & Kalat Division are appointed as Rent Controller Vide WP Notification No. Judl 1-17-(4)/59 dated 15-7-64. The Ordinance extends only to Urban Areas in the Province (Section 1(2) of the Ordinance). Urban area is defined in Section 2(j) of the Ordinance which means any area administered by a Municipal Corporation, A Municipality, a Municipal Committee, a Town Committee or a notified area committee. Under Section 4 of the Ordinance the RC is to determine fair rent. Landlord cannot claim anything in excess of fair rent (Section 6 and 7 of the Ordinance).Rent which should not have been paid may be recovered (Section 8 of the Ordinance).Section 9 lays down the reasons on the basis of which rent can be increased. Landlord cannot interfere with the amenities enjoyed by the tenant (Section 10 of the Ordinance).No person can convert a residential building in to non residential building except with the permission of RC (Section 11 of the Ordinance).If necessary repairs are not made by landlord the RC can make Bench Book: A Guide for District Judiciary
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proper order (Section 12 of the Ordinance). A landlord desirous of evicting a tenant from residential or non residential building can evict him by moving an application to RC on the grounds mentioned in the Ordinance (Section 13 & 13B of the Ordinance).Tenant is to be informed in case of change in ownership (Section 13-A of the Ordinance).For making the decision res judicata Section 14 has been added. Appeal from order passed under Sections 4,10,12 &13 of RC lies to District Judge. No appeal lies in cases of approximate determination of rent or any interlocutory order passed by RC (Section 15 of the Ordinance). The orders passed by RC or appellate court shall be executed by civil court (Section 17 of the Ordinance).
Succession Act, 1925 7.3
The basic jurisdiction lies with District Judge under the Succession
Act, 1925 to issue Probate, Letters of Administration and Succession Certificates (Sections 264(1) & 371 of the Succession Act, 1925). But under Section 12 of the WP Civil Courts Ordinance of 1962 High Court may authorize any Civil Judge to deal with all cases under the Succession Act, 1925. In exercise of the powers under Section 12 the High Court has authorized many Civil Judges to grant Succession Certificates (See Notifications on pages 264,265 & 266 of JEC2).The senior civil Judges used to exercise these powers before promulgation of WP Civil Courts Ordinance, 1962. These powers were given by Provincial Government under Section 388 of the Succession Act, 1925(See Notification on page 259 of the JEC2). High Court has empowered Senior Civil Judges to grant probate and letter of administration (Notification No 306-J dated 20th December 2012) 7.4
The procedure to be followed by the courts in granting probate or letter of
administration shall be of CPC (Section 268 of the Act). In granting probate or letter of administration the Court shall have to get satisfied that testator or Bench Book: A Guide for District Judiciary
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intestate, at the time of his decease had a fixed place of abode, or any property, movable or immovable within the jurisdiction of the Judge (Section 270 of the Act). When the deceased had no fix abode at the time of his death in the district in which application is given for probate or letter of administration then the Judge may refuse the application or can grant partially as mentioned in Section 271 of the Act. In non contentious cases probate and letter of administration can be granted by District Delegate (Section 272 of the Act). Probate and letter of Administration shall have effect over property of deceased throughout the province in which it is granted and in case of probate and letter of Administration granted under proviso to Section 273 shall have effect throughout Pakistan. When the probate or letter of Administration is issued under the proviso to Section 273 the court issuing the same shall send a certificate to the following Courts;•
When issued by High Court to each High court;
•
When issued by a District Judge to the High Court to which he is
subordinate and in each of the other High Courts. (Section 274 of the Act) 7.5
An application for probate or letter of administration shall be made in the
manner laid down under Sections 276 & 277 of the Act. District Judge is not to grant probate or letter of administration in contentious cases (Section 286 of the Act). In contentious cases there shall be proceedings like a civil suit under CPC (Section 295 of the Act). In cases where there is contention or District Delegate thinks that the matter should be referred to District Judge he may refuse to grant application and return the same to the petitioner for presentation before District Judge (Section 288 of the Act).The court granting Administration certificate shall seek Administration bond except the case falling under Section 241 (Section 291 of the Act). When probate or letter of administration is revoked or annulled the person to whom the grant was made shall deposit the same with the court forthwith (Section 296 of the Act). Appeal under Chapter VI of the Act
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dealing with probate or administration certificate shall lie to High Court (Section 299 of the Act). 7.6
The jurisdiction to grant succession certificate lies with the District Judge
in whose jurisdiction the deceased ordinarily resided at the time of his death or if he had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found (Section 371 of the Act). The application for succession certificate is to be given in the manner laid down by section 372 of the Act.. The procedure to be followed on the application shall be as given in section 373 of the Act. The court granting the succession certificate shall seek security from the person to whom certificate is granted (Section 375 of the Act). The certificate may afterwards be extended to include left over debts or security (Section 376 of the Act). The form of certificate and extended certificate is given in Schedule VIII (Section 377 of the Act). The local extent of certificate shall be throughout Pakistan (Section 380 of the Act). A certificate granted under the Act may be revoked (Section 383 of the Act).An appeal against the order of District Judge granting or refusing the succession certificate lies to the High Court. But if the inferior court is invested with the powers for the purpose of succession certificate then appeal lies to District Judge (Section 388 of the Act).For Rules on the subject Section LXX & LXXI of Vol II of KPDCR may be consulted.
Guardian & wards 7.7
Prior to the enactment of WP Family Courts Act, 1964 the jurisdiction in
matters of guardianship vested in the District Judge under the Guardian & Wards Act, 1890. Under Section 4-A of the Act any officer exercising original civil jurisdiction subordinate to a District Court judge could have been empowered to dispose of the business under the Act. Usually the Senior Civil Judge used to be empowered as such. But after the enactment of WP Family Bench Book: A Guide for District Judiciary
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Courts Act, 1964, the jurisdiction of dealing with guardianship matter lies with the Family Judge and not the District Court (Section 5 read with Part I of Schedule to the WP Family Courts Act, 1964). However the procedure to be followed is that of Guardian & Wards under Section 25 of the WP Family Courts Act, 1964 (See Document No 4(4-1) page 353 JEC2 -PLD 1986 SC 14, PLD 1987 K 239, PLD 1972 Pesh 1). Senior civil judges or civil judges while granting guardianship certificate or dealing with other guardianship matter should do so as family judges and not as guardian judges. The procedure to be followed is that of Guardian & Wards Act, the jurisdiction of the court is determined by Rule 6 of WP Family Court Rules 1965 and not under Section 9 of the Guardian & Wards Act (PLD 2012 SC 66). Chapter II of the Guardian and Wards Act, 1890 deals with appointment and declaration of guardian of person and property of the minor. Section 8 deals with the persons entitled to apply for the same. Section 10 prescribes the form of application. Section 11 deals with procedure. Section 12 deals with interlocutory order for production of minor and interim protection of person and property of minor. Section 17 deals with matters to be considered for appointment of guardian. Chapter III deals with duties, rights and liabilities of guardians. 7.8
For detailed rules on the subject of Guardian and Wards consult Section
XXXVII-A Vol I of KPDCR. Some important rules are mentioned below. Attention is drawn to rule 13 of the rules framed under the Guardian and Wards Act, 1890. With respect to money required for the current expenses of the estate and of the ward’s maintenance, which is not to be invested, that rule lays down no restriction as to the form of account, i.e. current account, savings account or fixed deposit account in which it may be placed. Such money should be placed in such form of Bank account as will be to the best interests of the minor. In cases falling under Rule 14, money required for current expenses must be deposited in the treasury and the surplus money invested in Government Promissory Notes as laid down therein. Bench Book: A Guide for District Judiciary
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All pass books, Government Promissory Notes and Post Office Cash Certificates relating to Accounts of minors should be kept by their guardians and inspected by the Court at least once a year. Where the Court deems it necessary to direct the guardian to open an account in a bank, the account shall be in the name of the minor through his guardian in the Post Office Savings Bank or in the National Bank of Pakistan, or in any other bank approved by the High Court. If, after payment of the current expenses of the estate and of the ward’s maintenance, there should be any balance, such balance should be invested by the guardian in Government Promissory Notes, Post Office Cash Certificates, or in any other securities mentioned in clauses (a), (b), (c) and (d) of section 20 of the Trust Act. Note 1---- A list of banks approved by the High Court is supplied to subordinate courts and additions and alterations made therein are communicated from time to time. Note 2------ In order to enable a bank to open an account in the name of a minor through his guardian, an attested copy of the guardianship certificate should be supplied to it for registration.
Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 7.9
This Act is enacted for the measures for removal of encroachment from
public property. If Government, or any authority or officer authorized by Government in this behalf, is satisfied that any person is an unauthorized occupant, it or he may, by order in writing, direct such person to vacate the public, property and to remove the structure, if any, raised by him on the public property, within such period as may be specified in the order; provided that such period shall not be less than three days (Section 3 of the Act). Under section 12 of the Act the Government may constitute special tribunal to exercise jurisdiction under the Act. The Tribunal may consist of a District/ Additional Bench Book: A Guide for District Judiciary
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District Judge, District/Additional District Magistrate. Government has appointed District/Additional District Judges as Tribunal under the Act (Notification No S.O.(LG-II)30-52/76 dated 14- 5 1977). A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or license in respect of such public property has not been determined for the purpose of this Act (Section 13 of the Act). A Tribunal shall decide any suit or application in such manner and in accordance with such procedure as may be prescribed (Section 14(1) of the Act). Any order made by the Tribunal which conclusively determines the rights of the parties with regard to all or any of the matter in controversy under this Act, shall be final and binding on the parties (Section 14(1) of the Act).
Land Acquisition Act, 1894 7.10
This law empowers the Government for compulsory acquisition of
property for public purposes and for companies. The Act provides for detail procedure that how land is acquired for above mentioned purposes. During the process the concerned authority under the Act determines the interest and compensation to be paid to interested persons (Sections 9 to 12 of the Act). Any interested person not accepting award may file a reference through Collector regarding measurement of land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested (Section 18 of the Act). The Court for the purpose of reference is principal civil court of original jurisdiction or any special judicial officer appointed by Provincial Government (Section 3 of the Act). In Khyber Pakhtunkhwa the Government has appointed all Additional District & Sessions Judges as Court and Senior Civil Judges also (See Notification at C.No. 8(2-3)at page No 258 of JEC2 & C.No 11(2-3) at page No 259 of JEC2).The procedure and limitation of application is given in section 18 of the Act. In making Bench Book: A Guide for District Judiciary
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reference to Court the collector shall state for the information of the court the particulars (Section 19 of the Act).The Court shall then cause service of notice (Section 20 of the Act). After inquiry the Court shall take into account some considerations in determining compensation (Section 23 of the Act). The amount of costs and interest on compensation are to be determined by Court (Sections 27 to 29, 34 of the Act).The payment of compensation if not made to interested persons shall be deposited in the Court. The Court is to deposit the amount in civil/revenue deposit in the treasury until it is invested under section 32 or Section 33 of the Act. For civil courts deposit/treasury deposit see Section IV, Vol III of KPDCR. The CPC is applicable in proceedings not inconsistent with the Act (Section 53 of the Act).The appeal lies to High Court as if from original decrees under CPC and to Supreme Court under Section 110 CPC (Section 54 of the Act).
Arbitration 7.11
The Arbitration Act, 1940 replaced the provisions of CPC (Section
89). Under the Act the Court is the civil court having jurisdiction in the matter of reference if it were a suit (Section 2(c) of the Act).Arbitration agreement contains implied conditions of first schedule if not otherwise provided in the agreement( Section 3 of the Act). The arbitration can be without intervention of the court (Chapter II of the Act).It can be with intervention of the court where no suit pending (Chapter III of the Act). Arbitration can be in suits (Chapter IV). Chapter V deals with the general procedure regarding award like reason for award by arbitrators ,powers of Arbitrators to make interim award ,interest on award, grounds for setting aside award, Jurisdiction of courts, Bar to suit contesting arbitration, power to stay legal proceedings where there is an arbitration agreement, limitation, appealable orders etc. The CPC is applicable
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to the proceedings (Section 41 of the Act).For rules on the subject see Section XXXVII-B of Vol I KPDCR and Section XVII of Vol II KPDCR.
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Chapter VIII: Criminal Trial General Law of Criminal Procedure. 8.1
The Code of Criminal Procedure, 1898, is the general law regulating
the proceedings in ordinary courts of criminal jurisdiction. The Code raises different classes of criminal courts (Section 6 of the Code). The general jurisdiction of criminal courts is mentioned in section 28 of CrPC. According to this section all offences under PPC may be tried by the High Court or by the Court of Session or by such other Court by which such offence is shown in the eighth column of the Second Schedule to be triable. At trial stage there are two types of courts apart from High Court i.e. the Court of Magistrates and Court of Sessions. The Magistrates are further divided in three classes i.e. First, Second and Third class. All the offences under PPC have been specifically mentioned in Schedule II with competent court. The offences against other laws are generally mentioned group wise in terms of limits of punishments in this Schedule with competent court if not mentioned in special law (Section 29 of CrPC). Offences against other laws are not triable by High Court or Court of Session unless specifically so mentioned in the special law or if no court is mentioned in the special law (Section 29 CrPC). The High Court and Court of Session can pass any sentence authorized by law (Section 31 of CrPC).The different classes of magistrates can pass sentences up to different level (Sections 32 & 33 CrPC). Magistrate empowered under Section 30 CrPC may pass any sentence other than death or imprisonment for a term exceeding seven years (Section 34 CrPC). The ordinary powers of different Magistrates have been mentioned (Section 36 and Third Schedule). Additional powers on Magistrates can be conferred (Section 37 CrPC).For continuance and withdrawal of powers Sections 40 and 41 of CrPC are relevant. Section 14 A CrPC creates Special Magistrates for price control with exclusive jurisdiction to deal with offences Bench Book: A Guide for District Judiciary
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relating to price control under any Federal or Provincial law. All magistrates are subordinate to Sessions Judge (Section 17 CrPC).
Cognizable & non cognizable offences 8.2
The CrPC has classified all the offences in to cognizable and non
cognizable. The second Schedule in column 3 mentions each and every offence to be either cognizable or non cognizable. The definition clause i.e. section 4 (1) (f) & (n) defines the former to be one where police can arrest without warrant and the later where police cannot arrest without warrant. Apart from column 3 of Second Schedule a special law can declare an offence to be cognizable or otherwise. If any offence of the former category is committed the same can be reported to police and an FIR is then chalked out (Section 154 of CrPC). But if it falls in second category then no FIR shall be chalked out and after reducing the information to be entered in a book the informer shall be referred to the Magistrate (Section 155 of CrPC). The police shall then proceed with the investigation of the case under section 156 onward. The Magistrate is also empowered to direct investigation in such cases or hold independent inquiry by himself or through another Magistrate subordinate to him (Section 159 CrPC). In this investigation the accused can be arrested by police without warrant and after completion of investigation a complete challan is submitted to competent Magistrate under section 173 CrPC. In non cognizable cases the procedure of complaint given in Chapter XVI of CrPC is to be followed.
There is no
difference in trial of offences of these categories after Law Reforms Ordinance of 1972.
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Bailabe & non bailable offences 8.3
Yet another categorization of offences is bailable & non bailable as per
second Schedule of CrPC. Any special law can deviate from this categorization. This category is for the purpose of releasing the accused on bail as a right or not. In the former category the accused shall be released on bail (Section 496 CrPC), but in latter he shall not as of right but under certain circumstances (Section 497 CrPC).
Compoundable & non compoundable offences 8.4
Another division of offences is made by CrPC as compoundable and non
compoundable offences (Section 345 read with column 6 of Second Schedule). Section 345 further explains that who can compound the offences which are compoundable without permission and with permission of court.
Pre-trial Proceedings 8.5
The pre- trial proceedings are those where police needs orders from
Magistrate before submission of complete challan under section 173 CrPC and even after submission of challan till the case is sent by Magistrate to Court of Session under section 190 (2) CrPC or till charge is framed by Magistrate in cases triable by himself. The reason is that pre-trial means proceedings before commencement of trial and trial begins with the framing of charge. In the pretrial proceedings the Magistrate is not to send case to Court of Session without any proceedings but he is to ensure attendance of accused and witnesses. In all cases including those exclusively triable by Court of Session the Magistrate is required to issue processes under section 204 CrPC and then shall proceed under section 87 and 88 CrPC. The Magistrate shall then record Bench Book: A Guide for District Judiciary
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evidence under section 512 CrPC in absence of accused if accused is absconder. In cases in which some of the accused are present and some are absconder then the Magistrate shall send the case to Court of Session after completion of proceedings under section 87 & 88 CrPC ( PLD 2010 SC 585).These proceedings include recording of confession or statements (Section 164 CrPC). The production of accused before Magistrate for physical or judicial remand (Section 167 CrPC). On such production the Magistrate shall order the accused to be released on bail if offence is bailable. In fit cases the accused can be remanded to police custody not exceeding fifteen days in total.
Submission of challan 8.6
It is believed that after abolition of committal proceedings by Law
Reforms Ordinance 1972 the job of a Magistrate is just a post office in sending the challan for trial to Court of Session. The correct legal position is that the Magistrate is still to look in to all preliminaries almost the same as were under acquittal proceedings of ensuring attendance of witnesses, recording of evidence under section 512 CrPC, initiation of proceedings under section 87 & 88 CrPC (PLD 2010 SC 585).
Trial by Magistrates 8.7
The procedure to be followed by Magistrates in trial of cases is given in
Chapter XX of CrPC. In all FIR cases except those tried summarily or punishable with fine or imprisonment not exceeding 6 months copies of all relevant material with certain exceptions shall be given to accused not less than seven days before commencement of trial (Section 241-A CrPC). The formal trial begins with the framing of charge. After framing of charge accused shall be asked whether he admits the commission of offence or not. ( 242 CrPC). If he admits the charge then conviction may be made. But he shall at the same time Bench Book: A Guide for District Judiciary
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be given show cause that why he should not be convicted on the basis of admission. And if he shows no sufficient cause then he may be convicted (Section 243 CrPC). If no conviction or admission is made then the Magistrate shall hear the complainant and take all necessary evidence of prosecution and then defence (Section 244 CrPC). The statements duly recorded under section 164 in the presence of accused who was given chance of cross examination may, be treated as evidence in the case under the circumstances (Section 244-A CrPC). The magistrate at any stage may examine the accused without previously warning him by putting such questions as court thinks necessary. But accused shall, after the closure of prosecution evidence, be examined (Section 342 CrPC). The accused has a right to be examined on oath in disproof of the charges made against him (Section 340(2) CrPC). The Magistrate can then acquit the accused or he may convict him, if not proceeding under section 349 CrPC (Section 245 CrPC). The complaint can at any stage be withdrawn with the permission of the Magistrate (Section 248 CrPC). The Magistrate can also stop proceedings under certain circumstances (Section 249 CrPC). The Magistrate can also acquit accused at any stage of the proceedings (Section 249A CrPC).In case of false and vexatious complaint or information compensation may be awarded and shall be recoverable as arrears of land revenue (Section 250 CrPC). While convicting an accused for offences in which death, hurt, injury or mental anguish or psychological damage to any person is caused or damage to or loss or destruction of any property is caused the Magistrate, unless otherwise directs for reasons to be recorded in writings, shall order for compensation to be paid to person or legal heirs. Such compensation shall be recoverable as arrears of land revenue and certain provisions of section 250 shall also apply (Section 544-A CrPC).
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Trial by Court of Session and High Court 8.8
The procedure to be followed by High Court and Court of Session in trial
of cases is given in Chapter XXII-A of CrPC. In all FIR cases copies of all relevant material with certain exceptions shall be given to accused not less than seven days before commencement of trial (Section 265-C). The formal trial begins with the framing of charge. After framing of charge accused shall be asked whether he admits the commission of offence or not. If he admits the charge then conviction may be made (265 D-E CrPC). If no conviction or admission is made then the Court shall hear the complainant and take all necessary evidence of prosecution and then defence (Section 265-F CrPC). The statements duly recorded under section 164 in the presence of accused who was given chance of cross examination may, be treated as evidence in the case under the circumstances (Section 265-J CrPC). The Court at any stage may examine the accused without previously warning him by putting such questions as court thinks necessary. But accused shall, after the closure of prosecution evidence, be examined (Section 342 CrPC). The accused has a right to be examined on oath in disproof of the charges made against him (Section 340(2) CrPC). The Court can then acquit the accused or he may convict him (Section 265-H CrPC). The Court can also acquit accused at any stage of the proceedings (Section 265K CrPC). While convicting an accused for offences in which death, hurt, injury or mental anguish or psychological damage to any person is caused or damage to or loss or destruction of any property is caused the Court, unless otherwise directs for reasons to be recorded in writings, shall order for compensation to be paid to person or legal heirs. Such compensation shall be recoverable as arrears of land revenue and certain provisions of section 250 shall also apply (Section 544-A CrPC).
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Charge 8.9
Chapter XIX CrPC deals with framing of charge in criminal cases. Charge
should contain the specific name of offence which is sufficient to identify it. If the accused having been previously convicted of any offence is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it any time before sentence is passed (Section 221 CrPC). Particulars as to time, place and person against whom or the thing in respect of which offence is committed be given (Section 222 of CrPC). In certain circumstances the manner of commission of offence is also given (Section 223 CrPC). The court may alter charge at any stage and may in certain circumstances proceed afresh with the case (Sections 228-232 CrPC). Normally separate trial for each separate charge is required but under certain circumstances joint trial can be held (Sections 233,234,235,236 & 239 CrPC).
Discharge 8.10
Before the introduction of Law Reforms Ordinance, 1972 the Magistrate
could discharge the accused under section 253 CrPC. Now the discharge can only be under section 494 (a) CrPC when the prosecution withdraws the case before framing of charge. The word ‘discharge’ is also used in section 63 and discharge of bond by Magistrate under section 173 (3) of CrPC with respect to power of Magistrate. Prior to abolition of committal proceedings it was the magistrate who used to frame charge under Chapter XXI of the CrPC including Bench Book: A Guide for District Judiciary
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offences triable by Court of Session. In all cases where no charge could be framed the Magistrate could discharge the accused under section 253 CrPC. But after the omission of this Chapter the pari materia provision of discharge is missing both from Chapter XX (Trial of cases by Magistrate) and Chapter XXII-A (trial of cases before High Court and Court of Session). The discharge under section 63 or 173(3) is not discharge by the trial court but are discharges during investigation and are administrative orders and not judicial (2004 PCrLJ 117-PLD 1985 SC 62-PLD 2001 L 271). The provision of discharge during trial is missing like defunct 253 CrPC. But if the acquittal is made at initial stages before framing of charge the accused cannot be tried if some material comes before the court during trial of co accused or otherwise under the doctrine of double jeopardy (Section 403 CrPC) and Autrefois Acquit. While going through Chapter XX or XXII-A no where it is mentioned that if no charge could be framed then what would court do. The wordings of section 265-D show that court shall frame charge only if there is ground for proceeding after looking in to various documents placed by prosecution. No such pari materia section is available in Chapter XX. The wordings of section 242 are such which make it incumbent on Magistrate to frame charge. In such situation there is no bar to meet this difficulty by seeking assistance from jurisprudence by concluding that if no charge can be framed then Magistrate or Court shall discharge the accused by seeking help from previous state of law ( defunct section 253CrPC) at the time of framing charge (AIR 1925 Cal 34=83 Ind Cas 273 (FB) + Air 1924 All 328 (FB) + AIR 1924 Cal 257 (FB)+AIR 1921 Cal 397 (FB) as referred to by Sh. Shaukat Mahmood and Sh.Nadeem Shaukat, p-99 and referred to by SM Zaffar on page 595 in understanding the statutes by Brite Books). The very acquittal of accused before framing of charge under section 494 (a) is based on this principle because only discharge can be ordered before framing of charge.
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Summary Trial 8.11
The CrPC has provided a procedure for summary trial of petty offences.
The reason for such type of trial is to cut short the lengthy trial procedure in petty offences. The chapter dealing with summary trial is XXII .The Magistrate First Class specially empowered by Provincial Government or any Bench of Magistrates invested with powers of Magistrate First Class and especially empowered by Provincial Government may try offences summarily. Only those offences can be tried summarily which are mentioned in section 260 & 261CrPC. The procedure to be followed is the same as of Chapter XX except that when there is no appeal there is no need of recording evidence or framing a formal charge and only particulars as mentioned in section 263 shall be maintained. In appealable cases only substance of evidence is to be recorded and particulars as mentioned in section 263 and before passing a sentence a judgment shall be recorded. No sentence exceeding three months imprisonment can be passed in summary trial (Section 262 CrPC).
Evidence 8.12
All evidence is to be recorded in presence of accused or his pleader. The
manner of recording evidence is given in sections 354 to 363 CrPC. The examination of the accused shall be taken in the manner given in section 364 CrPC. The whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. When the whole is made conformable to what he declares is the Bench Book: A Guide for District Judiciary
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truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand 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. In a case in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound as the examination proceeds, to make memorandum thereof in the language of the Court or in English, if he is sufficiently acquainted with latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability. Chapter XLI of CrPC deals with special rules of evidence. The deposition of medical witness if taken as provided by section 509 then that statement may be given in evidence without calling the witness. The reports of certain experts can be used in evidence without calling him (Section 510 CrPC). The previous conviction can be proved by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was made or a copy of the sentence or order or in case of conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered. Evidence may be recorded in absence of accused under section 512 by Magistrate competent to send accused for trial to Court of Session or by the court competent to try the accused. This evidence may be taken when the court is satisfied about the abscondence of accused (Section XXVIII, Vol II KPDCR). Such statement can be given in evidence against him on the inquiry into, of trial for the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or
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inconvenience which, under the circumstances of the case, would be unreasonable.
Lunatics 8.13
The Magistrate , Court of Session or High Court having reason to believe
about the unsoundness of mind of accused can make inquiry by getting the accused examined from authorized medical expert and then can postpone further proceedings (Sections 464 & 465 CrPC).Pending such trial the accused may be released on furnishing sufficient security or may be kept in safe custody (Section 466 CrPC).At any time the Magistrate or Court can resume proceedings after getting satisfied that now accused is capable of defending himself and if again the position is unchanged than the accused shall be dealt with under Sections 464 & 465 CrPC. When Magistrate or Court sees reason to believe that the accused committed an offence due to unsoundness of his mind , he can be acquitted (Sections 469 & 470 CrPC). Such person shall then be kept in safe custody (Section 471 CrPC).
Pardon 8.14
In the case of any offence triable exclusively by the High Court or Court
of Sessions, or any offence punishable with the imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal Code, namely, sections 216A, 369, 401, 435 and 477A, the officer incharge of prosecution in the district may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of Bench Book: A Guide for District Judiciary
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the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether, as principal or abettor, in the commission thereof. No such pardon can be given to person involved in offence relating to hurt or qatl without permission of the victim or heirs of the victim (Section 337 CrPC). Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any. In every case where a person has accepted a tender of pardon and has been examined the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Sessions or High Court, as the case may be. Such powers of pardon can be exercised by High Court or Court of Session under section 338. In case such person does not abide by the terms of pardon in opinion of Public Prosecutor he can be tried for the offence (Section 339 CrPC).
Bails and bonds 8.15
Chapter XXXIX and XLII deal with the subject of bails and bonds. In
bailable offence grant of bail is right of accused on recognizance or on furnishing sureties (Section 496 CrPC). In non bailable offences the accused can be released in certain circumstances on furnishing bail bonds (Section 497 CrPC). The bail required by police or Magistrate may be reduced by High Court or Court of Session (Section 498 CrPC). After furnishing of required bail bonds the accused shall be released (Section 500 CrPC). Sureties may be discharged under section 502 CrPC. Instead of executing a bond the accused may deposit money or Government promissory notes except in cases of bonds for good behavior (Section 513 CrPC). In case bond is forfeited the recovery of sum of bond shall be made in the manner laid down in section 514 CrPC. Such order is appealable/revisable(Section 515 CrPC).In case of insolvency or death of surety Bench Book: A Guide for District Judiciary
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fresh bond may be taken (Section 514-A CrPC). In case bond is taken from minor then only surety is to accepted (Section 514-B CrPC). For further guidance see Section XXXVIII of Vol II of KPDCR.
Habeas corpus 8.16
The jurisdiction to issue direction of the nature of habeas corpus lies
with the High Court under Chapter XXXVII. This jurisdiction is in addition to one conferred on the High Court under Article 199 of the Constitution. This jurisdiction may be conferred by High Court on a Sessions Judge or Additional Sessions Judge (Section 491 CrPC). In exercise of this power the High Court has conferred this jurisdiction on all Sessions Judges and some Additional Sessions Judges in the province (See Document No 5(2-3) & 8A(2-3) at pages 255 & 258 of JEC2). While exercising this power the courts are to follow the rules contained in Chapter 4-F, Vol V of PHCR.
Under section 491, search
warrant may be issued to bailiff and expenses of rule are to be decided by court in accordance with rule 10 ibid.
Public prosecutor 8.17
The Public Prosecutor is appointed by Provincial Government under
section 492. Now an independent prosecution service has been raised in Khyber Pakhtunkhwa by an Act called The Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005. (Khyber Pakhtunkhwa Act No. I of 2005). Some of the powers of prosecutors under CrPC are to grant pardon (Section337 CrPC), public prosecutor may appoint any person to be prosecutor (Section 492(2) CrPC). Bench Book: A Guide for District Judiciary
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Defamation against state functionaries can be taken cognizance of on his complaint (Section 198-A CrPC). Report under Section 173 Cr PC can be filed through Public Prosecutor. He can withdraw prosecution under section 494 CrPC.
Irregular proceedings 8.18
This is an important part of CrPC which guides the court as to whether
an irregularity is fatal or not. Chapter XLV deals the subject. There are some irregularities which do not vitiate the proceedings (Section 529 CrPC).There are other irregularities which vitiate proceedings (Section 530 CrPC). Proceedings in wrong place itself do not vitiate the proceedings unless failure of justice is caused (Section 531 CrPC). Similarly non compliance with the provisions of section 164 or 364 does not make the defect fatal so long as the error has not injured the accused as to defence on the merit (Section 533 CrPC).Omission to frame charge likewise is not in itself fatal unless failure of justice is caused (Section 535 CrPC).Finding or sentence when reversible by reason of error or omission in charge or other proceedings can be seen in section 537 of CrPC.
Case property 8.19
The proper application of laws and rules on the subject by the agencies
involved in the process i.e. the police and Magistracy would help come up to the mark. The correct legal position in this regard is given below. The Police seize weapons, articles and property in connection with criminal cases and also, sometimes, take charge of property which may be unclaimed under the following provisions of law. a.
Sections 51 and 550 Cr.P.C.
b.
Under Section 53 Cr.P.C
c.
Under Sections 165, 166,153 and 170 Cr.P.C
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d.
Under chapter XV of the Police Order, 2002.
e.
Under Local and Special Laws.
As to (a): - Regarding seizure of property, the police is bound to report forthwith to concerned Magistrate who shall pass appropriate orders under Sections 523 to 525 Cr.P.C for the disposal or delivery thereof. As to (b): - The offensive weapons shall be delivered to the Court and the Court shall pass appropriate orders. As to (c): - All the properties, weapons and other articles seized under sections 165,166,153 and 170 Cr.P.C shall be sent to the concerned Magistrate at the time of forwarding the accused person to a Magistrate under Section 170 Cr.P.C. unless already dealt with by the Magistrate. The Magistrate is empowered under Section 516A Cr.P.C for making such orders as it thinks fit for the proper custody of such property pending the conclusion of inquiry or trail. If the property is Motor Vehicle then the police are bound to produce before a Magistrate after rapid investigation or by means of incomplete challans (Police Rules). As to (d): - Unclaimed properties taken into possession under Chapter XV of the Police Order 2002 have got no concern with the Courts. As to (e): - The weapons, articles and properties seized under the local and special laws shall be dealt with under the Code of Criminal Procedure if the Code is made applicable to the extent. In case of Control of Narcotic Substances Act the Code is made applicable to the extent of searches and arrest in so far as not inconsistent with the provisions of Sections 20, 21, 22 and 23 of the Act. Sections 47 of the Act has made the Code applicable to trials and appeals before a Special Court except otherwise provided in the Act. The Code “is, therefore, applicable in dealing with the articles, properties etc seized under the CNSA, 1997. The applicability to the extent is further confirmed by including a proviso Bench Book: A Guide for District Judiciary
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to Section 74 of the Act. This proviso puts certain restrictions on the powers of the court to give custody of the material to certain persons mentioned therein. In short if no special procedure for dealing with case properties is given in special enactments, then, the Code shall be followed.
Judgment 8.20
Chapter XXVI of CrPC deals with the subject. The judgment is to be
pronounced in open court either immediately after the termination of trial or on some future date of which due notice to parties shall be given. The judgment shall be in the language of the court or in some other language which the accused or his pleader understands (Section 366 CrPC).The judgment is to be written by Presiding Officer himself or under his dictation in court language or in English. The judgment should contain the points for determination, the decision and reasons for decision. It shall be signed and dated by Presiding Officer in open court at the time of announcement and when the judgment is not in the handwriting of Presiding Officer then every page shall be signed by him (Section 367 CrPC). Judgment shall be passed in alternative if there exists doubt as to under which of the provisions of PPC the offence falls (Section 367(3) CrPC). In judgment of acquittal the offence shall be mentioned and direction be issued that accused be set at liberty (Section 367(4) Cr PC). If the accused is sentenced for offence punishable with death and court awards no death penalty then reason for not doing so shall be mentioned (Section 367(5) CrPC).If the sentence is of death then the sentence shall direct that he be hanged by the neck till he is dead (Section 368 CrPC). The judgment once signed cannot be altered except clerical mistake (Section 369 CrPC). At the time of conviction the copy of judgment shall be supplied free of cost to accused. If accused desires then translation of judgment in his own language, if practicable, or in language of the court shall be given to him. This is not applicable in Bench Book: A Guide for District Judiciary
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summary trial conviction (Sections 371 & 372 CrPC).The court of session shall forward a copy of its finding and judgment to officer incharge of prosecution (Section 373 CrPC).
Submission of sentence for confirmation 8.21
In case of sentence of death passed by Court of Session it shall not be
executed unless confirmed by the High Court (Section 374 CrPC). The High Court may confirm the sentence or alter it or annul the conviction and convict the accused for some other offence or acquit him. No order for confirmation shall be made until the period allowed for appeal has expired or appeal is disposed of (Section 376 CrPC). The copy of confirmation of sentence shall be sent to concerned court (Section 379 CrPC).
Execution 8.22
After the confirmation of sentence by High Court the concerned court
shall cause such order to be carried in to effect by issuing a warrant or such other step as may be necessary. But no such sentence of death shall be carried in to effect if legal heirs of deceased have entered in to compromise (Section 381 CrPC).If a woman is sentenced to death who is pregnant her execution may be stayed by the High Court or sentence may be converted in to life imprisonment (Section 382 CrPC). The execution of certain sentences may be postponed by the Court under section 382-A CrPC. While awarding sentence of imprisonment period of detention shall be taken in to account (Section 382-B CrPC). In cases other than section 381 or section 382-A the court passing the sentence forthwith forward a warrant to the jail along with convict if not already in jail (Section 383 CrPC). Warrant for levy of fines shall be issued by the court by issuing warrant of attachment or sale of any movable property of offender or warrant to concerned revenue authority for realization of fine by the process of execution Bench Book: A Guide for District Judiciary
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against property of movable or immovable or both of the offender. And if the offender has undergone the whole of sentence of imprisonment passed in the alternative to non- payment of fine then no such warrant shall be issued. The concerned revenue authority to whom warrant as aforesaid is issued shall become decree holder for the purpose of getting it executed through civil court (Section 386 CrPC).If the sentence is of fine only the court may suspend the sentence and order for payment in installments by releasing accuse on bond. And if no payment is made in installment then sentence may be executed (Section 388 CrPC). The execution of sentence of escaped convict is to be made according to section 396 CrPC. The sentence of offender already undergoing sentence of imprisonment shall run consecutively unless court direct otherwise for concurrent running of sentence. But the sentence of a person shall run immediately who is already undergoing sentence under section 123 CrPC (Section 397 CrPC). A youthful offender imprisoned may be sent to reformatories instead of jail (Section 399 CrPC).When a sentence has been fully executed ,the officer executing it shall return it to the court certifying the manner of execution (Section 400 CrPC).
Jurisdiction of criminal courts 8.23
The ordinary place of inquiries or trial shall be the jurisdiction of court
within the local limits of whose jurisdiction it was committed (Section 177 CrPC).The Provincial Government has power to transfer case to be tried in any other sessions division ( Section 178 CrPC). The court within the jurisdiction of which offence is done or result ensues has the jurisdiction (Section 179 CrPC). When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be Inquired into or tried by a Court within the local limits of whose jurisdiction either act was done Bench Book: A Guide for District Judiciary
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(Section 180 CrPC).The offence of being a thug, of being a thug and committing murder, of dacoity with murder, of having belonged to gang of dacoits, or of having escaped from custody, may be inquired into or tried by a Court within the local limits of whose jurisdiction the person charged is (Section 181 CrPC). Similarly offence of criminal misappropriation or criminal breach of trust ,theft, kidnapping & abduction can be tried by any of the courts within whose jurisdiction offence was committed or any part of property was received , retained or possessed or person was kidnapped, abducted, conveyed or concealed or detained (Section 181 CrPC). Where scene of offence is uncertain, partly committed in different jurisdictions or offence is continuing one or consists of several acts done in different local areas it may be inquired in to or tried by any of the courts having jurisdiction over any of such area (Section 182 CrPC). In case of doubt the High Court to decide area of jurisdiction (Section 185 CrPC). When any person committing an offence not in the local limits of jurisdiction of a Magistrate but found in the jurisdiction of such Magistrate can be inquired in to by such Magistrate and handed over to competent Magistrate or take bail etc. The procedure of warrant issued by subordinate magistrate under this section is also given (Sections 186 & 187 CrPC). The circumstances under which a person committing offence beyond Pakistan, ship or aircraft registered in Pakistan to be considered as committed in Pakistan (Section 188 CrPC-Section XXXI, Vol II KPDCR).
Appeal 8.24
Chapter XXXI of CrPC deals with appeal in criminal cases. The appeal
is competent only when provided for by law (Section 404 CrPC). In following cases appeal lies. Appeal from order rejecting application for restoration of attached property. Appeal from order requiring security for keeping the peace or for good behavior. Appeal from order refusing to accept or rejecting a surety Bench Book: A Guide for District Judiciary
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(Sections 405 to 406-A). The appellate fora are given in the hierarchy given in Annexure C & D. No appeal in case of plead guilty (Section 412 CrPC). No appeal in petty cases (Section 413 CrPC). No appeal in certain summary convictions (Sections 414 &414-A CrPC). There is special right of appeal in certain cases (Section 415-A CrPC ). Appeal can be filed by Public Prosecutor in cases of acquittal to High Court on direction of Provincial Government (Section 417 CrPC).An aggrieved person may file appeal to High Court. Appeal is admissible on matters of facts and law (418 CrPC). Appeal shall be filed by moving a petition with a copy of judgment appealed against (Section 419 CrPC). If the appellant is in jail he may forward the appeal through incharge jail (Section 420 CrPC-Section XVI, Vol I KPDCR).The court may reject appeal summarily after hearing the appellant (Section 421 CrPC). The procedure and powers of appellate court are mentioned in sections 422 & 423 CrPC. Pending appeal the Appellate Court may suspend the sentence (Section 426 CrPC). The accused may be arrested in appeal against acquittal (Section 427 CrPC). Appellate court may take further evidence or direct it to be taken (Section 428 CrPC). Revision 8.25
The High Court or any Sessions Judge may call for the record of any
subordinate court to satisfy him as to the correctness, legality or propriety of any finding, sentence or order and may suspend the execution of sentence (Section 435 CrPC). The High Court or Sessions Judge may order further inquiry in certain cases (Section 436 CrPC). The High Court may, in its discretion exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section Bench Book: A Guide for District Judiciary
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429 (Section 439 CrPC). Sessions judge has the same power of revision as High Court (Section 439-A CrPC). Hearing party is optional (Section 440 CrPC).
Justice of peace 8.26
All Sessions Judges and on nomination by Sessions judges Additional
Sessions Judges are ex-officio justice of peace throughout the district in which they are serving (Section 25 CrPC). An ex-officio justice of peace may issue appropriate directions to the police authorities concerned on a complaint regarding; (i) non-registration of a criminal case; (ii) transfer of investigation from one police station to another; (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.
Punishments 8.27
The punishments to which offenders are liable under the provisions of
Pakistan Penal Code Code are;Qisas; Diyat ;Arsh;
Daman;
Ta‘zir
Death; Imprisonment for life;
Imprisonment which is of two descriptions, namely:-(i) Rigorous i.e., with hard labour; (ii) Simple; Forfeiture of property and Fine. The sentence of death can be commuted for any other punishment by Government. If death was awarded for offence of qatl no commutation without the consent of heirs of the victim (Section 54 PPC). The sentence of imprisonment for life can be commuted for imprisonment not exceeding fourteen years by Government. If punishment was awarded for offence under Bench Book: A Guide for District Judiciary
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Chapter XVI no commutation without the consent of heirs of the victim (Section 55 PPC). In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty five years (Section 57 PPC). Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple (Section 60 PPC).In case no maximum amount of fine is prescribed it can be unlimited but not excessive (Section 63 PPC). The court has power to order for imprisonment of either description in default of fine. The maximum punishment in default of fine should not exceed one fourth of maximum limit of imprisonment expressed for the offence (Sections 64, 65 &66 PPC). In case the offence is punishable for fine only then the punishment in default of fine should not exceed the scale given in section 67 PPC. Imprisonment terminates on payment of proportional part of fine (Section 69 PPC). The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of the period; and the death of the offender does not discharge from the liability any property which would, after his death be legally liable for his debts (Section 70 PPC). Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would be itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences (Section 71 PPC). In case of doubt of which offence the accused is guilty shall be punished for lesser punishment (Section 72 PPC). Solitary confinement and limit of Bench Book: A Guide for District Judiciary
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solitary confinement is mentioned in sections 73 & 74 PPC. Whoever, having been convicted by a Court in Pakistan of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years (Section 75 PPC).
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Chapter IX: Special Criminal laws 9.1
Whenever there is some special (including local law) on a subject the
general law gives way to special law (Generalia specialibus non derogant). Special law means any law dealing a particular subject or person or locality. The enactment of a special law does not make the general law or any other special law inoperative by itself in the absence of express repeal. The problem of insertion of non obstante and exclusive jurisdiction clause in every new special law gives rise to many complications and it becomes difficult for the courts to decide which law is applicable. The example of this situation is the Anti Terrorism Act, 1997, Juvenile Justice System Ordinance 2002, Control of Narcotics Substances Act 1997, Customs Act 1969, Small Claims and Minor Offences Act, 2002, NAB Ordinance, 1999 and the like. In such situations the courts sometimes presume implied repeal of earlier law under misconception or give overriding effect to a law which is in fact subordinate. In order to enable the courts to correctly apply the law the following rulings are given for help
Implied repeal of earlier law when both cannot stand together (2013 PTD
2115).
Non obstante clause can have overriding effect over other provision only
and only if there is a conflict between two provisions (2009 PTD 1314).
In case of conflict between two provisions of law the courts are to follow
the principle of harmonious interpretation. Laws should not be left redundant or surplus rather should be interpreted in a way to save both and not to destroy any (PLD 2008 SC 779. 2002 CLD 1392).
Implied repeal can only be inferred, when latter law overrides earlier law
and is totally inconsistent with earlier law and the two cannot stand and coexist together (PLD 2014 Peshawar 170).
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There is presumption against repeal by implication; and the reason of this
rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject –matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the exiting legislation. However the repeal is inferred by necessary implication when the provisions of later law are so inconsistent with or repugnant to the provisions of the earlier law that the two cannot stand together (AIR 2003 SC 3236).
9.2
It should be taken note of that special law even if earlier in time shall
prevail over general law in case of conflict under the principle of Generalia specialibus non derogant. And when there is conflict amongst various special laws then the court can wriggle out of the situation by classifying the special laws in to local and special laws in the following way. Jurisprudentially local law is one which deals with particular class of people or particular area of state and local law is, therefore, more special law amongst special laws. Normal special laws, in contradictions to local laws, deal with special subjects only and not special class of people or special area. And when special law dealing with a subject is compared with local law (dealing with special class of person or area) then former is general law as compared to later. And if there is contradiction between these two, then later being more special law will prevail over the former even earlier in time (AIR1930 Mad963, 968 & 969). And if both are local laws and no reconciliation is possible then naturally the later in time shall prevail as per rulings cited in 9.1 above.
Control of Narcotics Substances Act, 1997 9.3
This law has been given overriding effect and exclusive jurisdictions
Section 4(3) of this law gives exclusive jurisdiction to CNSA Court and section Bench Book: A Guide for District Judiciary
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76 overriding effect. This is special law and not local law as it deals with special subject but not special class of person hence it shall override all special laws but not local laws. Special law like Customs Act, 1969 has subjective status qua CNSA law. Section 73 of CNSA saves Federal or Provincial law for the time being in force, or of any rule made there under which imposes any restriction or provides for a punishment not imposed by or provided for under this Act or imposes a restriction or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotic drug or psychotropic substance within Pakistan or other similar matters. But despite protection of above mentioned Federal and Provincial laws the trial shall be under CNSA (2001 SCMR 1083). And since the law like Army Act is local laws dealing with special class of person hence in case offence committed by person subject to Army Act the local law shall prevail though earlier in time. All Sessions/Additional Sessions Judges and Judicial Magistrates of the First Class have been empowered as Special Courts under CNSA(C.No. 7(2-3)-15(2-3) JEC2).Special courts under CNSA also function in the province apart from the above mentioned courts.
Juvenile Justice System Ordinance, 2000 9.4
This law is local law in the sense it deals with special class of people
i.e. Juveniles (person of less than 18 years-Section 2(b) of JJSO).Section 4(3) of JJSO says that the Juvenile Court shall have the exclusive jurisdiction to try cases in which a child is accused of commission of an offence. Since it is a local law as discussed in 9.2 hence it shall prevail over all general and special laws if offence is committed by a child. All Sessions/Additional Sessions Judges and Judicial Magistrates of the First Class have been empowered as Juvenile Courts (C.No. 1(2-3)-2(2-3) JEC2). JJSO provides for special provisions for trial Bench Book: A Guide for District Judiciary
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(Sections 5& 6 JJSO), arrest, custody, bail (Section 10 JJSO), probation (Section 11 JJSO) of child accused. Child cannot be given capital punishment and labour during the time spent in Borstal or such other institution (Section 12 JJSO).
Hudood laws 9.5
The following special laws were promulgated to deal with offences
punishable under Islamic Hadd. •
Prohibition (Enforcement of Hadd) Order, 1979.
•
Offences against Property (Enforcement of Hudood) Ordinance, 1979.
•
Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
•
Offence of Qazf (Enforcement of Hudood) Ordinance, 1979.
In all these laws punishment of relevant Hadd is provided. In case where offence in not liable for Hadd or required proof for Hadd is not available or Hadd cannot be enforced or imposed the punishment of Ta’azir is provided. The detail of each law is given below.
Prohibition (Enforcement of Hadd) Order, 1979 9.6
This Order provides for punishment of Hadd of eighty stripes for offence
of drinking (Section 8 PO).The proof for drinking liable to Hadd is given in Section 9. In situation given under Section 10 Hadd shall not be enforced. In case where offence in not liable for Hadd or required proof for Hadd is not available or Hadd cannot be enforced the punishment of Ta’azir is provided (Section 11 PO). Though the PO has provided for special court and procedure of the court but in view of CNSA the trial shall be made under CNSA for those offences which are covered by both laws and offence not covered by CNSA Bench Book: A Guide for District Judiciary
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shall continue to be tried under PO(2000 PCRLJ 1222: 2001 PCRLJ(SC) 988, 2001 SCMR 1083).
Offences against Property (Enforcement of Hudood) Ordinance, 1979 9.7
This law has been given overriding effect (Section 3 of OAPO). Two
kinds of theft are mentioned i.e. one is liable to Hadd and other is liable to Tazir (Section 4 of OAPO). Theft is liable to Hadd when an adult commits theft of property of value of at least ‘nisab’ (Section 5 of OAPO). The ‘nisab’ is four decimal four five seven grams (4.457 grams) of gold or property of equivqlent value at the time of theft (Section 6 of OAPO).Proof of theft liable to Hadd is given in section 7 which is confession or proof of the standard mentioned therein. The commission of theft liable to Hadd by more than one person who have entered the ‘Hirz’ and share of each being more than ‘nisab’ then every person shall be liable to Hadd (Section 8 OAPO). Whoever commits theft liable to 'hadd' for the first time shall be punished with amputation of his right hand from the joint of the wrist. Whoever commits theft liable to 'hadd' for the second time shall be punished with amputation of his left foot up to the ankle. Whoever commits theft liable to 'hadd' for the third time, or any time subsequent thereto, shall be punished with imprisonment for life (Section 9 OAPO). Sections 10 & 11 deal with situations where Hadd cannot be imposed or enforced. Whoever commits theft, which, is not liable to 'hadd' or for which proof in either of the forms mentioned in Section 7 is not available, or for which 'hadd' may not be imposed or enforced under this Ordinance, shall be liable to Tazir (Section 13 OAPO).The punishment for theft liable to tazir is the same as given in PPC. The law defines ‘Harabah’ (Section 15 OAPO).For proof of this offence the standard of section 7 of OAPO is applicable (Section 16 OAPO). Section 17 Bench Book: A Guide for District Judiciary
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OAPO provides for punishment for ‘Harabah’. The punishment of amputation or death shall not be imposed or enforced for the offence of haraabah in cases in which hadd may not be imposed for theft liable to hadd and the provisions of Sections 10 and Section 11 of OAPO shall apply mutatis mutandis to such cases (Section 18 OAPO). Whoever commits haraabah which is not liable to the punishment provided for in Section 17, or for which proof in either of the forms mentioned in Section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, robbery of extortion, as the case may be (Section 20 OAPO). Whoever extends patronage, protection or assistance in any form to, or harbours, any person or group of persons engaged in the theft of cattle, on the understanding that he shall receive one or more of the cattle in respect of which the offence is committed, or a share in the proceeds therefore, is said to commit "Rassagiri" or "patharidari". Whoever commits "Rassagiri" or "Patharidari" shall be punished with rigorous imprisonment for a term which may extend to fourteen years, or with whipping not exceeding seventy stripes, and with confiscation of all his immovable property and with fine (Section 21 OAPO). CrPC is made applicable but offences under sections 9 or 17 shall be triable by Court of Session and not by a Magistrate authorized under section 30 CrPC. An appeal from an order under either of the said sections or from an order under any other provisions of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court (Section 24 OAPO). The Presiding Officer of the Court by which a case is tried, or an appeal is heard, under this Ordinance shall be a Muslim. If the accused is a non-Muslim, the Presiding Officer may be a non- Muslim (Section 25 OAPO).
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Offence of Zina (Enforcement of Hudood) Ordinance, 1979 9.8
This law was originally given overriding effect (Section 3 of ZO-Omitted
by Protection of Women Act, 2006). Prior to Protection of Women Act, 2006, the ZO also dealt with Zina liable to Tazir and Zina bil jabbar which scheme has been changed by the said law. The Ordinance now deals only with Zina liable to Hadd. A man and a woman are said to commit 'Zina' if they willfully have sexual intercourse without being married to each other (Section 4 ZO).Zina liable to Hadd is defined in Section 5 of ZO. The punishment for muhsan & non muhsan is also given. No punishment shall be executed until it has been confirmed by the Court to whom an appeal from the order of conviction lies; and if the punishment be of whipping; until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment (Section 5 ZO). No complaint of zina under section 5 read with section 203A of the Code of Criminal Procedure, 1898 and no case where an allegation of rape is made shall at any stage be converted into a complaint of fornication under section 496A of the Pakistan Penal Code (Act XLV of 1860) and no complaint of lewdness shall at any stage be converted into a complaint of zina under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (Ordinance No.VII of 1979) or an offence of similar nature under any other law for the time being in force (Section 5A ZO). Proof of Zina liable to Hadd is given in section 8 which is confession or proof of the standard mentioned therein. Section 9 ZO deals with situation when Hadd shall not be enforced. The mode of execution of stoning to death is given in section 17 ZO. CrPC is made applicable but offence shall be triable by Court of Session and not by a Magistrate authorized under section 30 CrPC . An appeal from an order shall lie to the Federal Shariat Court (Section 20 ZO). The Presiding Officer of the Court by which a case is tried, or an appeal is heard, under this Ordinance
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shall be a Muslim. If the accused is a non-Muslim, the Presiding Officer may be a non- Muslim (Section 21 ZO).
Offence of Qazf (Enforcement of Hudood) Ordinance, 1979. 9.9
This law was originally given overriding effect (Section 19 of QO-Omitted
by Protection of Women Act, 2006). Prior to Protection of Women Act, 2006, the QO also dealt with Qazf liable to Tazir which scheme has been changed by the said law. The Ordinance now deals only with Qazf liable to Hadd. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishers an imputation of zina concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said except in the cases hereinafter excepted, to commit qazf (Section 3 QO). Whoever, being an adult, intentionally and without ambiguity commits qazf of zina liable to hadd against a particular person who is a muhsan and capable of performing sexual intercourse is, subject to the provisions of this Ordinance, said to commit qazf liable to had(Section 5 QO). Proof of Qazf liable to Hadd is given in section 6 which is confession or proof of the standard mentioned therein. Whoever commits qazf liable to hadd shall be punished with whipping numbering eighty stripes. After a person has been convicted of the offence of qazf liable to hadd, his evidence shall not be admissible in any Court of law. Section 8 of QO deals with person who can file complaint. Section 9 QO deals with situations where Hadd cannot be imposed or enforced. Section 14 QO deals with proceedings of lian. CrPC is made applicable but offence shall be triable by Court of Session and not by a Magistrate authorized under section 30 CrPC . An appeal from an Bench Book: A Guide for District Judiciary
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order shall lie to the Federal Shariat Court (Section 17 QO). The Presiding Officer of the Court by whom a case is tried, or an appeal is heard, under this Ordinance shall be a Muslim (Section 18 ZO).
Mental Health Ordinance, 2001 9.10
After the repeal of Lunacy Act, 1912, this Ordinance is promulgated and
Court of Protection is constituted under section 2(1)(d) of MHO. All the Courts of District Judge in the Province have been appointed as Court of Protection (Document C.No. 3(2-3) JEC2 page 254). One appeal is provided to Court of Protection against detention order (Section 10(6) MHO).One appeal is also provided against detention order under section 11 of MHO. Chapter V deals with judicial proceedings for appointment of guardian of person and manager of the property of the mentally disordered. Whenever any person is possessed of property and is alleged to be mentally disordered, the Court of Protection, within whose jurisdiction such person is residing may, upon application by any of his relatives having obtained consent in writing of the Advocate General of the Province concerned, by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs (Section 29 MHO). The procedure of Court is given in section 30 MHO. Where a mentally disordered person is incapable of taking care of himself, the Court may appoint any suitable person to be his guardian, or order him to be looked after in a psychiatric facility and order for his maintenance (Section 32 MHO). Where the property of the mentally disordered person who is incapable of managing it, the Court shall appoint any suitable person to be the manager of such property (Section 33 MHO). The rest of the Chapter deals with responsibility of manage/guardian, allowance payable to guardian, furnishing of inventory of immovable property, etc, inquiry by Court of Protection in certain Bench Book: A Guide for District Judiciary
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cases, disposal of business premises under the direction of Court of Protection, investment of assets of mentally disordered person, appointment of a new manager or guardian, dissolution of partnership, securities, etc., of mentally disordered person, maintenance during temporary mental disorder, inquiry by Court of Protection into cessation of mental disorder and appeal to High Court.
Foreign Exchange Regulation Act, 1947 9.11
This Regulation is enacted to regulate certain payments, dealings in
foreign exchange and securities and the import and export currency and bullion. Every Sessions Judge within area of his jurisdiction is tribunal under this law and he may transfer a case to Additional Sessions Judge. The tribunal shall have all powers of Magistrate for matters mentioned in Section 23A (3). The CrPC is made applicable as if an offence under the Act in one of the offences referred to section 337(1) of the CrPC. The State Bank of Pakistan or any other person aggrieved of the judgment of tribunal may appeal to High Court within three months.
The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 9.12
This Act is enacted to provide for the care, protection, maintenance,
welfare, training, education, rehabilitation and reintegration of Children at risk in the Khyber Pakhtunkhwa. All the District & Sessions Judges in Khyber PAkhtunkhwa have been notified as Child Protection Courts under this Act (C.No. 5A(2-3) Page 261 JEC2).The Court may issue orders in respect of handing over the custody of a child at risk that is brought before him, either to his parents, guardian, a suitable person or a Child Protection Institution, as the case may be.The Court shall, informs the child at risk of the situation and obtain his views before making an order in respect of his custody and care. The Bench Book: A Guide for District Judiciary
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Court shall, before making an order in respect of protection and care of a child at risk, consider continuity in his upbringing and take into consideration the ethnic, religious, cultural, linguistic background and all other relevant factors in the best interest of the child at risk. While making the orders under this Chapter, the Court shall prefer keeping the child at risk in parental care, or extended family care, or non-kinship care than placement of a child at risk in a Child Protection Institution. The Court shall monitor the status of the child at risk through reports submitted by the Child Protection Officers, any officer authorized by the Commission or through requiring the appearance of a child at risk and the person responsible for his custody and care before itself. The Court shall finally decide a case within four months from the date of production of a child at risk before it. In the event of the expiry of 60 days period before the final decision of the Court, the Court shall communicate, in writing, to the concerned District Judge, the reasons, if any, of the delay. Appeal against the orders of the Court shall lie to the High Court within thirty days of the judgment. The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit, provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard (Section 16 of the Act).
The Khyber Pakhtunkhwa Arms Act, 2013. 9.13
This Act has repealed the West Pakistan Arms Ordinance, 1965 except
provisions regarding military stores (Section 33 AA). Some main sections of this Act are given below. Nothing contained in this Act, shall apply to the sale, transportation, bearing or possession of arms or ammunition by order of the Bench Book: A Guide for District Judiciary
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Federal Government, or by a public servant of the Federal Government or nonregular forces raised or maintained by Federal Government, in the course of his duty as such public servant or member(Section 2 AA). Section 4 AA prohibits a person to manufacture, keep, sell, offer or expose for sale, an arms or ammunition, or undertake the repairs of any arms, except under a license and in the manner and to the extent permitted thereby. Government may prohibit the transportation of Arms (Section 5 AA). Searching post may be established on certain points (Section 6AA). When any person is found carrying or conveying any arms or ammunition, whether covered by a license or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are being carried or conveyed by him with intent to use them, or that the same may be used for any unlawful purpose any person may without warrant apprehend him and take such arms or ammunition from him (Section 7 AA). Going armed with any arms without a license and to the extent and in the manner permitted thereby is prohibited (Section 8 AA). No person shall have in his possession or under his control any arms or ammunition, except under a license and in a manner and to the extent permitted thereby (Section 9AA). In certain cases arms to be deposited at police station or with licensed dealers (Section 10 AA). Government may, from time to time, by notification in the official Gazette, make rules to determine the officers by whom, the form in which and the terms and conditions on and subject to which any license shall be granted, or renewed (Section 11 AA). Any breach of sections 4, 5, 8, 9, 10 and 11 shall be punishable with imprisonment for a term which may extend to seven years or with fine which may extend to two lacs, or with both: Provided that the punishment for an offence committed in respect of any rifle of 0.303 bore or over, musket of 0.410 bore or over, pistol or revolver of 0.441 bore or over or ammunition which can be fired from such musket, pistol or revolver, shall be imprisonment for a term which is not less than three years
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(Section 15 AA). Penalty for manufacture, transportation, repair, sale and possession of arms etc. except under a License
shall be punishable with
imprisonment which may extend to twenty-five (25) years but shall not be less than ten years and his property, whether moveable or immoveable, shall be forfeited (Section 16 AA). An offence, punishable under section 15 or section 17, shall, unless it has been committed in respect of any of the arms or ammunition referred to in the proviso to the said section 15, be triable by Magistrate (Section 18 AA).
Contempt of court 9.14
There are two types of laws of contempt of court. One law is made
under Article 204(3) of the Constitution and second is PPC. Article 204 of the Constitution basically deals with contempt of superior courts. But the law framed under Article 203 (3) of the Constitution regulating the contempt of court covers all courts including subordinate courts. At present this law is Contempt of Court, Ordinance 2003.The only exception given in this law is that if the offence of contempt is punishable by a subordinate court under PPC then no High Court shall proceed in that case (Section 4 of CCO). If we go through offences of contempt of court under PPC then there is hardly any case of contempt of court of subordinate court which falls outside the ambit of PPC. The main offences of contempt under PPC are covered under Chapter XI PPC. Almost all such offences are cognizable only on complaint in writing of the court or some other court to which such court is subordinate (Section 195(1)(b) CrPC). Again the court whose contempt is committed instead of making complaint can proceed by itself under section 476 CrPC. But in case of proceedings under section 476 the maximum limit of sentence should not exceed the one given in section 476 (2) CrPC. The offences mentioned in section 476(1) CrPC may be tried by any other court to which such court is Bench Book: A Guide for District Judiciary
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subordinate (Section 476 (3) CrPC).The appeal lies to Supreme Court if sentence is passed by High Court, to High Court if sentence is passed by Court of Session or District Court or court exercising powers of District/Session Court and in any other case to Sessions Judge. The procedure of trial by court shall be Summary Procedure as given in chapter XXII CrPC (Section 476(1) CrPC). In appeal the procedure of Chapter XXXI CrPC shall apply (Section 476(5) CrPC). The court may in fit cases instead of trying case under section 476 transfer it to another court of competent jurisdiction (Section 476-A CrPC). In certain offences mentioned in section 480 CrPC the court may sentence the accused on the same day after taking cognizance. The court may in fit cases instead of proceeding under Section 480 CrPC send the case to a Magistrate (Section 482 CrPC). The court may discharge the accused on surrender of apology (Section 484 CrPC). Appeal in case of conviction under section 80 shall lie to the court to which such court is subordinate (Section 486 CrPC). And if a contempt of subordinate court is such which is not covered under PPC then the case may be sent to High Court for proceeding under the Contempt of Court Ordinance, 2003.
9.15 Under the Contempt of Court Ordinance there are three types of contempt These are ‘Civil’ ‘Judicial’ and ‘Criminal’ contempt (Section 3 of CCO). The fair and healthy comments on a judgment involving question of public importance in a case which has finally been decided and is no longer pending shall not constitute contempt, if that it is phrased in temperate language and the integrity and impartiality of a Judge is not impugned. Appeal from the order of a Single Judge of a High Court on intra-Court appeal shall lie to a bench of two or more Judges; in a case in which the original order has been passed by a Division or larger Bench of a High Court an appeal shall lie to the Supreme Court; and in the case of an original order passed by a Single Judge or a bench
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of two Judges of the Supreme Court an intra-Court appeal shall lie to a Bench of three Judges and in case the original order was passed by a Bench of three or more Judges an intra-Court appeal shall lie to a Bench of five or more Judges (Section 19 CCO).
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Chapter X: Law of Evidence 10.1
At present the law of evidence in vogue in Pakistan is Qanoon-e-
Shahadat Order, 1984. This law applies to all judicial proceedings in or before any court, including a court martial, a tribunal exercising judicial or quasijudicial powers or jurisdiction but does not apply to proceedings before an arbitrator (Article 1(3) QSO). The scheme of the law is to lay down the criteria for relevant, admissible, inadmissible and cogency of fact and other material. Since QSO is highly technical law it is deemed proper to give an overall scheme of the law instead of discussing each and every provision of law. Only that evidence can be looked into by the courts which pertains to fact in issue or relevant. But all relevant evidence is not to be looked in to which is not admissible. The admissible evidence is one which is sufficiently relevant to an issue . All that is irrelevant or insufficiently relevant is not admissible. There are following four Exceptions to Rule of Admissibility & Relevancy. Hearsay: Which is highly relevant on account of context and circumstance. e.g., an attesting witness’ death bed confession of having altered a deed was rejected in an action on the document. Opinion: Opinion of witness is not allowed except expert opinion. Character: Character/reputation of accused is in- admissible evidence of his guilt. Conduct on other occasions: Past behaviors of accused in similar situations in admissible. (Chapter III of QSO)
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Doctrine of Res gestae This doctrine is an exception to “Hearsay Rule” The following are four exceptions. a)
Statements accompanying and explaining relevant facts.
b)
Spontaneous statements relating to an event in issue made by participants
or observers c)
Statements concerning the maker’s contemporaneous state of mind or
emotions. d)
Statement of contemporaneous physical sensation.
Stephen’s definition of the term ‘relevance’ “any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the present, past, or future existence or non existence of the other. Degree of relevancy diminishes in proportion to the likelihood of its being manufactured, remote & multiple in issues. 10.2
The distinction between relevancy and admissibility can be described as
under. Relevancy is a concept arrived at inductively from experience, and its applicability can be tested deductively by the construction of a syllogism. It is not primarily dependent on rules of law. Admissibility of evidence depends first on the concept of relevancy of a sufficiently high degree and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules. Insufficient Evidence is the Lowest degree of cogency on the basis of which no reasonable man could decide the issue in his favor. Secured degree of cogency is one where a party’s evidence is sufficiently weighty for a reasonable man. Presumptive Evidence is one where cogency of evidence is so weighty that a presumption is drawn in favor. Conclusive Evidence is one when the court must find that fact to be proved. Then there are certain presumptions; presumption of fact (stolen goods in possession); rebuttable presumption of law (birth of Bench Book: A Guide for District Judiciary
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child during marriage); irrebuttable presumption of law (child under 7 years of age) (Cross on Evidence).
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Annexure A
Article 202:-“Rules of procedure:Subject to constitution and law, a High Court may make rules regulating the practice and procedure of the Courts or of any court subordinate to it” Section 122 of CPC :- “Power of certain High Courts to make rules:- The High Courts may, from time to time after previous publication, may rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendents, and may by such rules annual, alter or add to all or any of the rules in the First Schedule. Section 129 of CPC:- Notwithstanding anything in this Code, any High Court 1*** may make such rules not inconsistent with its Letters Patent to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code. Section 554 of Cr.PC:- “Power of High Courts to make rules of inspection of records of subordinate Courts (1) With the previous sanction of the Provincial Government, any High Court may from time to time, make rules for the inspection of the records of subordinate courts. (2) Power of High Courts to make rules for other purposes:- Every High Court may, from time to time, and with the previous sanction of the Provincial Government;(a). make rules for keeping all books, entries and accounts to be kept in all Criminal Courts subordinate to it, and for the preparation and transmission of any returns or statements to be prepared and submitted by such Courts: (b) frame forms for every proceeding in the said Courts for which it thinks that a form should be provided; Bench Book: A Guide for District Judiciary
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(c) make rules regulating its own practice and proceedings and the practice and proceeding of all Criminal Courts subordinate to it; and (d) make rules for regulating the execution of warrants issued under this Code for the levy of fines; Provided that the rules and forms made and framed under this section shall not be inconsistent with this Code or any other law in force for the time being. (3) All rules made under this section shall be published in the official Gazette.” Section 14 of the Civil Court Ordinance 1962;- “ Power to frame rules” (1) The High Court may, with the approval of Government, frame rules for the purposes of carrying in to effect the provisions of this Ordinance. (2)
In particular, and without prejudice to the generality of the foregoing
power, the High Court may, with the approval of Government frame rules for all are any of the following purposes, namely;(a) (b)
the supervision of all Civil Courts and their visitation and inspections; the exercise by the District Judges of the general control vested in them
over the Civil Courts in their respective districts; (c)
the places and times for the holding of Civil Courts;
(d)
the fees to be charged for processes issued by the Civil Courts or by any
officer of any such Courts; (e)
the fees payable in any suit or proceeding in any Civil Court by any party
in respect of the fees of the pleader of any other party, And (f)
the manner in which the proceedings of the Civil Courts shall be kept and
recorded, the manner in which the paper books for the hearing of appeals shall be prepared and the granting of copies”.
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Annexure B 184. Original Jurisdiction of Supreme Court.- (1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments. Explanation.-
In
this
clause,
"Governments"
means
the
Federal
Government and the Provincial Governments. (2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only. (3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference
to
the
enforcement
of
any
of
the
Fundamental
Rights
conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article. 185. Appellate Jurisdiction of Supreme Court.- (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of the High Court; or Bench Book: A Guide for District Judiciary
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(d) if the amount or value of the subject matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Majlis-eShoora(Parliament) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal. 186. Advisory Jurisdiction.- (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President. 186A. Power of Supreme Court to Transfer Cases.- (1) The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court or withdraw any ease, appeal or other proceeding pending before a High Court to it and dispose of the same. 187. Issue and Execution of Processes of Supreme Court.- (1) Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in Bench Book: A Guide for District Judiciary
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any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. (3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final. 188. Review of Judgments or Orders by the Supreme Court.- The Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it. 189. Decisions of Supreme Court binding on other Courts.- Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan. 190. Action in aid of Supreme Court.- All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. 191. Rules of Procedure.- Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court. 199. Jurisdiction of High Court.- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,(a) on the application of any aggrieved party, make an order(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local
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authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4) Where(a) an application is made to a High Court for an order under paragraph Bench Book: A Guide for District Judiciary
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(a) or paragraph (c) of clause (1), and (b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order(i) would not have such effect as aforesaid; or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction. (4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made: Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made. (5) In this Article, unless the context otherwise requires,"person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means
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(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the AttorneyGeneral, and (b) in any other case, the Advocate-General for the Province in which the application is made. 200. Transfer of High Court Judges.- (1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts: [***] Explanation.- In this Article, "Judge" does not include a Chief Justice but includes a Judge for the time being acting as Chief Justice of a High Court other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196. (2) Where a Judge is so transferred or is appointed to an office other than the principal seat of the High Court, he shall, during the period for which he serves as a judge of the High Court to which he is transferred, or holds such other office, be entitled to such allowances and privileges, in addition to his salary, as the President may, by Order, determine. (3) If at any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and, while so attending the sittings of the High Court, the Judge shall have the same power and jurisdiction as a Judge of that High Court: Provided that a Judge shall not be so required except with his consent and the approval of the President and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge. Explanation.- In this Article, "High Court" includes a Bench of a High Court. Bench Book: A Guide for District Judiciary
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(4) [***] 201. Decision of High Court binding on Subordinate Courts.- Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it. 202. Rules of Procedure.- Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any court subordinate to it. 203. High Court to superintend Subordinate Courts.- Each High Court shall supervise and control all courts subordinate to it. CHAPTER 3A.-FEDERAL SHARIAT COURT 203A. Provisions of Chapter to override other Provisions of Constitution.The provisions or this Chapter shall have effect notwithstanding anything contained in the Constitution. 203B. Definitions.- In this Chapter, unless there is anything repugnant in the subject or context,(a) "Chief Justice" means, Chief Justice of the Court; (b) "Court" means the Federal Shariat Court constituted in pursuance of Article 203C; (bb) "judge" means judge of the Court; (c) "law" includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure; and 203C. The Federal Shariat Court.- (1) There shall be constituted for the purposes of this Chapter a court to be called the Federal Shariat Court.
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(2) The Court shall consist of not more than eight Muslim Judges, including the Chief Justice, to be appointed by the President in accordance with Article 175A. (3) The Chief Justice shall be a person who is, or has been, or is qualified, to be, a Judge of the Supreme Court or who is or has been a permanent Judge of a High Court. (3A) Of the Judges, not more than four shall be persons each one of whom is, or has been, or is qualified to be, a Judge of a High Court and not more than three shall be ulema having at least fifteen years experience in Islamic law, research or instruction. (4) The Chief Justice and a Judge shall hold office for a period not exceeding three years, but may be appointed for such further term or terms as the President may determine: Provided that a Judge of a High Court shall not be appointed to be a Judge [**] except with his consent and except where the Judge is, himself the Chief Justice, after consultation by the President with the Chief Justice of the High Court. (4A) The Chief Justice, if he is not a Judge of the Supreme Court, and a Judge who is not a Judge of a High Court, may, by writing under his hand addressed to the President, resign his office. (4B) The Chief Justice and a Judge shall not be removed from office except in the like manner and on the like grounds as a Judge of the Supreme Court. (4C) [***] (5) [****] (6) The Principal seat of the Court shall be at Islamabad, but Court may from time to time sit in such other places in Pakistan as the Chief Justice may, with the approval of the President, appoint. (7) Before entering upon office, the Chief Justice and a Judge shall make before the President or a person nominated by him oath in the form set out in the Third Schedule. Bench Book: A Guide for District Judiciary
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(8) At any time when the Chief Justice or a Judge is absent or is unable to perform the functions of his office, the President shall appoint another person qualified for the purpose to act as Chief Justice or, as the case may be, Judge. (9) A Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of a High Court: Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan, the amount of such pension shall be deducted from the pension admissible under this clause. 203CC [***] 203D. Powers, Jurisdiction and Functions of the Court.- (1) The Court may,either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH), hereinafter referred to as the Injunctions of Islam. (1A) Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List [***], or to the Provincial Government in the case of a law with respect to a matter not enumerated in the Federal Legislative List, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court. (2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision:Bench Book: A Guide for District Judiciary
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(a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect: Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal there from may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal. (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect. 203DD. Revision and other Jurisdiction of the Court.- (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Bench Book: A Guide for District Judiciary
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Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence. (3) The Court shall have such other jurisdiction as may be conferred on it by or under any law. 203E Powers and Procedure of the Court.- (1) For the purposes of the performance of its functions, the Court shall have the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; and (d) issuing commissions for the examination of witnesses or documents. (2) The Court shall have power to conduct its proceedings and regulate its procedure in all respects as it deems fit. (3) The Court shall have the power of a High Court to punish its own contempt. (4) A party to any proceedings before the Court under clause (1) of Article 203D may be represented by a legal practitioner who is a Muslim and has been enrolled as an advocate of a High Court for a period of not less than five years or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of jurisconsults maintained by the Court for the purpose. (5) For being eligible to have his name borne on the panel of jurisconsults referred to in clause (4), a person shall be an Aalim who, in the opinion of the Court, is well-versed in Shariat. (6) A legal practitioner or jurisconsult representing a party before the Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him
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and submit to the Court a written statement of his interpretation of such Injunctions of Islam. (7) The Court may invite any person in Pakistan or abroad whom the Court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him. (8) No court fee shall be payable in respect of any petition or application made to the Court under Article 203D. (9) The Court shall have power to review any decision given or order made by it. 203F Appeal to Supreme Court.- (1) Any party to any proceedings before the Court under Article 203D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court: Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such decision. (2) The provisions of clauses (2) and (3) of Article 203D and clauses (4) to (8) of Article 203E shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court. (2A) An appeal shall lie to the Supreme Court from any judgment, final order or sentence of the Federal Shariat Court(a) if the Federal Shariat Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or imprisonment for life or imprisonment for a term exceeding fourteen years; or, on revision, has enhanced a sentence as aforesaid; or (b) if the Federal Shariat Court has imposed any punishment on any person for contempt of the Court. (2B) An appeal to the Supreme Court from a judgment, decision, order or sentence of the Federal Shariat Court in a case to which the preceding clauses do not apply shall lie only if the Supreme Court grants leave to appeal. Bench Book: A Guide for District Judiciary
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(3) For the purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court a Bench to be called the Shariat Appellate Bench and consisting of, (a) three Muslim Judges of the Supreme Court; and (b) not more than two Ulema to be appointed by the President to attend sittings of the Bench as ad-hoc members thereof from amongst the Judges of the Federal Shariat Court or from out of a panel of Ulema to be drawn up by the President in consultation with the Chief Justice. (4) A person appointed under paragraph (b) of clause (3) shall hold office for such period as the President may determine. (5) Reference in clauses (1) and (2) to Supreme Court shall be construed as a reference to the Shariat Appellate Bench. (6) While attending sittings of the Shariat Appellate Bench, a person appointed under paragraph (b) of clause (3) shall have the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the Supreme Court and be paid such allowances as the President may determine. 203G. Bar of Jurisdiction.- Save as provided in Article 203F, no court or tribunal, including the Supreme Court and a High Court, shall entertain any procee exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court. 203GG. Decision of Court binding on High Court and Courts subordinate to it.- Subject to Article 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court. 203H. Pending proceedings to continue, etc.- (1) Subject to clause (2) nothing in this Chapter shall be deemed to require any proceedings pending in any court or tribunal immediately before the commencement of this Chapter or initiated after such commencement, to be adjourned or stayed by reason only of a Bench Book: A Guide for District Judiciary
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petition having been made to the Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue in such proceedings is repugnant to the Injunctions of Islam; and all such proceedings shall continue, and the point in issue therein shall be decided, in accordance with the law for the time being in force. (2) All proceedings under clause (1) of Article 203B of the Constitution that may be pending before any High Court immediately before the commencement of this Chapter shall stand transferred to the Court and shall be dealt with by the Court from the stage from which they are so transferred. (3) Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any interim order in relation to any proceedings pending in any other court or tribunal. 203 I [Omitted] 203J. Power to make Rules.- (1) The Court may, by notification in the official Gazette, make rules for carrying out the purposes of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may make provision in respect of all or any of the following matters, namely: (a) the scale of payment of honorarium to be made to jurisconsults, experts and witnesses summoned by the Court to defray the expenses, if any, incurred by them in attending for the purposes of the proceedings before the Court; (b) the form of oath to be made by a jurisconsult, expert or witness appearing before the Court; (c) the powers and functions of the Court being exercised or performed by Benches consisting of one or more members constituted by the Chairman; (d) the decision of the Court being expressed in terms of the opinion of the majority of its members or, as the case may be, of the members constituting a Bench; and Bench Book: A Guide for District Judiciary
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(e) the decision of cases in which the members constituting a Bench are equally divided in their opinion. (3) Until rules are made under clause (1), the Shariat Benches of Superior Courts Rules, 1979, shall, with the necessary modifications and so far as they are not inconsistent with the provisions of this Chapter, continue in force.
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Annexure C Hierarchy of Civil Courts
Supreme Court of Pakistan.
High Court
District Judge with unlimited jurisdiction on original side and one million
on appellate side.
Additional District Judge with unlimited jurisdiction on original side and
one million on appellate side.
Senior Civil Judge and Civil Judge First Class unlimited jurisdiction on
original side.
Civil Judge Second Class pecuniary jurisdiction up to Rs 5 lac.
Civil Judge Second Class pecuniary jurisdiction up to Rs 1 lac.
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Annexure D Hierarchy of Criminal Courts
Supreme Court of Pakistan.
High Court
Sessions Judge with power to pass any sentence authorized by law.
Additional Sessions Judge with powers to pass any sentence authorized
by law.
Magistrate of First class with power to order imprisonment not exceeding
three years including such solitary confinement as is authorized by law; Fine not exceeding forty five thousand rupees arsh, daman, Whipping
Magistrate of Second class with power to order imprisonment not
exceeding one years including such solitary confinement as is authorized by law; Fine not exceeding forty fifteen thousand rupees.
Magistrate of Third class with power to order imprisonment not
exceeding one month; Fine not exceeding forty three thousand rupees.
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Annexure E 175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided. (2) For appointment of Judges of the Supreme Court, the Commission shall consist of— (i) Chief Justice of Pakistan; Chairman (ii) four most senior Judges of the Supreme Court; Members (iii) a former Chief Justice or a former Judge of Member the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the four member Judges, for a term of two years; (iv) Federal Minister for Law and Justice; Member (v) Attorney-General for Pakistan; and Member (vi) a Senior Advocate of the Supreme Court of Member Pakistan nominated by the Pakistan Bar Council for a term of two years. (3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan. (4) The Commission may make rules regulating its procedure. (5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:(i) Chief Justice of the High Court to which the Member appointment is being made; (ii) the most senior Judge of that High Court; Member (iii) Provincial Minister for Law; and Member
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(iv) an advocate having not less Member than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years; Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission: Provided further that if for any reason the Chief Justice of a High Court is not available, he shall substituted by a former Chief Justice or former Judge of the Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2). (6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:- (i) Chief Justice of the Islamabad High Court; and Member (ii) the most senior Judge of that High Court; Member Provided that for initial appointment of the Chief Justice and the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission: Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply. (7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members: Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply. (8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be;
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(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:(i) four members from the Senate; and (ii) four members from the National Assembly Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this Article shall, mutatis mutandis, reply. (10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition. (11) Secretary, Senate shall act as the Secretary of the Committee. (12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed: Provided that the Committee, for reasons to be recorded may not be confirm the nomination by three-fourth majority of its total membership within the said period, and, Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister: Provided further that if a nomination is not confirmed, the Commission shall send another nomination. (13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment
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(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. (15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained. (16) The provisions of Article 68 shall not apply to the proceedings of the Committee. (17) The Committee may make rules for regulating its procedure.
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Annexure F CODE OF CONDUCT TO BE OBSERVED BY JUDGES OF THE SUPREME COURT OF PAKISTAN AND OF THE HIGH COURTS OF PAKISTAN
(Supreme Judicial Council) Notification Islamabad, the 2nd September, 2009
No.F.SECRETARY-01/2009/SJC.- ln exercise of powers conferred by Article 209(8) of the Constitution of Islamic Republic of Pakistan, 1973, the Supreme Judicial Council in its meeting on 8th August, 2009 approved the addition of a new Article No. XI in the Code of Conduct for Judges of the supreme Court and High Courts and in its meeting on 29th August, 2009 decided to publish the full text of amended Code of Conduct in the Gazette of Pakistan (Extraordinary) for information of all concerned as under:-
Code of Conduct for Judges of the Supreme Court and High Courts (Framed by the Supreme Judicial Council under Article 128 (4) of the 1962 Constitution as amended upto date under Article 209 (8) of the Constitution of Islamic Republic of Pakistan 1973).
The prime duty of a Judge as an individual is to present before the public an image of justice of the nation. As a member of his court, that duty is brought within the disciplines appropriate to a corporate body. Bench Book: A Guide for District Judiciary
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The Constitution, by declaring that all authority exercisable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles, which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the Law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation.
To be a living embodiment of these powers, functions, and obligations calls for possession of the highest qualities of intellect and character. Equally, it imposes patterns of behavior, which are the hall-mark of distinction of a Judge among his fellow-men.
In this code, an attempt is made to indicate certain traditional requirements of behavior in the Judges of the Superior Courts, conducive to the achievement of a standard of justice worthy of the nation.
ARTICLE- I
On equiponderance stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge's task is to ensure that such equality should prevail in all things.
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ARTICLE- II
A Judge should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed. While dispensing justice, he should be strong without being rough, polite without being weak; awe inspires in his warnings and faithful to his word, always preserving calmness, balance and complete detachment, for the formation of correct conclusions in all matters coming before him.
In the matter of taking his seat and of rising from his seat, he shall be punctilious in point of time, mindful of the courtesies, careful to preserve the dignity of the Court, while maintaining an equal aspect towards all litigants as well as lawyers appearing before him.
ARTICLE- III
To be above reproach, and for this purpose to keep his conduct in all things, 'official and private, free from impropriety is expected of a Judge.
ARTICLE- IV
A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend. A Judge must rigidly refrain from entering into or continuing any business dealing, howsoever unimportant it may be, with any party to a case before him. Should the dealing be unavoidable, he must discontinue his connection with Bench Book: A Guide for District Judiciary
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the case forthwith. A judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers.
To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect.
ARTICLE- V
Functioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.
ARTICLE- VI
A Judge should endeavor to avoid, as far as possible, being involved, either on his own behalf or on behalf of others, in litigation or in matters which are liable to lead to litigation such as industry, trade or speculative transactions.
To employ the influence of his position to gain undue advantage, whether immediate or future is a grave fault.
A Judge must avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions. Bench Book: A Guide for District Judiciary
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ARTICLE- VII
Extra-Judicial duties or responsibilities, official or private, should be generally avoided. He should equally avoid being a candidate, for any elective office in any organization whatsoever.
ARTICLE- VIII
Gifts are to be received only from near relatives and close friends, and only such as are customary. Everything in the way of favours in consequence of the office must be refused. In accepting any entertainment offered, whether general or particular, care should be taken that its real purpose does not conflict with a Judge's duty to maintain detachment from likely litigants, and from partisan activity.
ARTICLE- IX
In his judicial work, and his relations with other Judges, a Judge should act always for the maintenance of harmony within his own Court, as well as among all Courts and for the integrity (If the institution of justice. Disagreement with the opinion of any Judge, whether of equal or of inferior status, should invariably be expressed in terms of courtesy and restraint.
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ARTICLE- X
In this judicial work a Judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavor to minimize suffering of litigants by deciding cases expeditiously through proper written judgments. A Judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.
ARTICLE- XI
No Judge of the superior judiciary shall render support in any manner whatsoever, including taking or administering oath in violation of the oath, of office prescribed in the Third Schedule to the Constitution, to any authority that acquires power otherwise than through the modes envisaged by the Constitution of Pakistan.
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Annexure G CODE OF CONDUCT FOR JUDICIAL OFFICERS OF NWFP DISTRICT JUDICIARY
Independence of an institution, in fact, requires more responsible and accountable system from within, especially in dealing with stakeholders. Judiciary, being independent institution, demands all its members to show more responsibility than others. It was in this perspective that Hon’ble the Chief Justice desired to have a Code of Conduct for all the judicial officers in NWFP, in addition to the Rules of conduct already applicable to the government servants.
I am, therefore, directed to circulate the subject Code of Conduct for compliance by all the judicial officers. Receipt may be acknowledged by all within a week.
CODE OF CONDUCT FOR JUDICIAL OFFICERS OF NWFP DISTRICT JUDICIARY
The conduct of judicial officers of NWFP has so far been regulated by the NWFP Government Savants (conduct) Rules 1987. These Rules are primarily meant for all government servants. However, the job requirement of the judicial officers warrant special behavior in the judges which demand for possession of the highest quality of intellect and character, Peshawar High Court, therefore, considers it imperative to further provide, the following, in addition to the aforesaid Rules, Code of Conduct for judicial officers of the District Judiciary.
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Para I
A judicial officer should be God fearing, law abiding, abstemious,truthful of tongue, wise in opinion, cautious and forbearing, patient and calm, blameless, untouched by greed, completely detached and balanced, faithful to his words and meticulous in his functions.
Para II
He must not show any fear or favour to any party before him or their lawyers, both in his judgment and conduct.
Para III
He should avoid mixing up with people, roaming in hotels, markets and streets except in dire need.
Para IV
He should avoid rage and should abstain from deciding in rage.
Para V
He should be learned in law and should have command and control over the proceedings in the Court.
Para VI
He must be consistent in his judgments.
Para VII
He should be courteous and polite, but not weak, towards the litigants and their lawyers. He must maintain the decorum of the Court.
Para VIII
He should always endeavor to decide cases expeditiously and should take all necessary measures to ensure speedy justice.
Para IX
He should have effective control over the staff of his court without being rude, rough or humiliating.
Para X
A judicial officer must be punctual while taking or leaving his seat.
Para XI
He must be dressed in prescribed uniform and seated
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in dignified manner, but not so as to look a proud man. Para XII
He must avoid hearing cases, receiving guests or his colleagues in the retiring room, besides avoiding frequent use thereof, except in urgent need.
Para XIII
He must avoid hearing one party or his lawyer in the absence of the other except in the case of exparte proceedings.
Para XIV
He must not hear those cases in which he, his near relatives or close friends have got any interest.
Para XV
He should not advise any of the parties so that it becomes a favour to the prejudice of the other party.
Para XVI
Judicial officers must avoid discussing particular cases before them save allowed by law or when it is intended to give advice or counselling by a higher forum to lower forum.
Para XVII He should not engage in business with any party to the case before him. If, however, it is unavoidable, he should discontinue the hearing of the case forthwith. (PHC letter No.10367-10390/Admn: Dated Pesh: the 25th November 2005)
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Annexure H This part contains some of the Model Checklists for the guidance of the Presiding Officers. These checklists should be annexed with the files at the time of institution of case. The checklist can be varied by the courts as per their needs. The Presiding officers are also expected to annex these checklists with the files already instituted. This exercise can be undertaken at the time when the file comes before the Presiding Officer on daily basis. A certificate at the foot of checklist should be given by Presiding officer in the form given in last checklist.
MODEL CHECKLIST OF CIVIL SUITS (INSTITUTION)
Plaint
Whether the suit is made over to the court of District Court/Court of
Senior Civil Judge
Address of the parties
List of legal heirs
Whether this court has jurisdiction
I.
Pecuniary
II.
Territorial
III.
Subject matter
Whether court fee affixed
Documents on which plaintiff relies
List of other documents
Whether suit is prima-facie with in time
In case of plaint through recognized agent whether power of attorney is
annexed
Whether wakalat nama is annexed
Whether plaint is properly verified
Application for interim relief
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Whether defendants can be sued legally
In case of suit against Government whether copy of notice U/S 80 of
C.P.C annexed in case of suit by or against Government S.79 and Order-27 rules (I) CPC complied with
If suit is by alien whether maintainable u.s.83 C.P.C
If suit is by a foreign state where maintainable U/S 84 C.P.C
In case of suit involving public nuisance whether the provision of S.91
CPC are complied with
In case of suit of the nature of S.92 whether provision of S.92 are
compiled with
In case of representative suit whether provision of Order-I rule 8 CPC
complied with
In case of minor plaintiff or defendant provisions of Order-32 CPC
complied with
AFTER INSTIUTION
Service
Written statement
If set off is claimed whether court fee is affixed
Whether plea of jurisdiction is taken, if you whether decided
Whether plea of misjoinder, nonjoineder of causes of action and parties
taken, if yes whether decided
Whether suit can be disposed of on the basis of legal issues only
Whether suit can be disposed of at the first hearing
List of witnesses
Plaintiff’s evidence
Defendant’s evidence
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In case of judgment against Government provision of S.82 CPC complied
with
MODEL CHECKLIST OF CRIMINAL CASES (INSTITUTION)
Whether complete Challan is annexed
Whether the case is made over to the court by sessions court
Whether FIR is annexed
Whether original Murasila is annexed
Site Plan Recovery Memos
Statements U/S 164 Cr.P.C, if any
Confessional Statements U/S 364 Cr.P.C, if any
Original Reports
I. II.
Report of Arms expert Report of Chemical Examiner
III.
Report of serologist
IV.
Medical/post mortem, report
V.
Injury sheet/inquest report
VI.
Opinion of currency officer
VII.
Finger/Hand-writing expert report
Proceedings U/S 87 and 88 Cr.P.C & warrant U/S 204 Cr.P.C, ifany
Complete Police file
Copies for accused
The detail of case property
Whether list of witnesses in Challan is correct
If accused is on bail whether his bail bonds on file
In case of previous convict whether the copy of previous order/judgment
annexed
In case of murder/attempt to commit murder, the list of legal heirs
Whether case has been sent by magistrate U/S 190 (2) Cr.P.C
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Whether any of accused is minor
Jurisdiction
1.
Territorial
2.
Subject matter
DURING TRIAL
Service
Whether copies given to accused
Whether charge is framed
Prosecution evidence
Statement of accused
Defence evidence, if any
Statement of accused on oath, if any
Arguments
Decision
MODEL CHECKLIST OF CIVIL REVISION
Application for revision
Whether the petition is made over to the court by Sessions Court
Whether certified copies of the following annexed
Pleadings
Documents
Order of Subordinate Court
Wakalat Nama
Power of Attorney
Jurisdiction
Pecuniary
Territorial
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Subject matter
Court fee
Whether application is within time?
Incase of time barred application whether application U.S 5 Limitation
Act, is submitted
Whether respondents can legally be sued or are subject to the jurisdiction
of the court
Undertaking/affidavits that no such application has been filed or decided
by court
Incase of fresh applications under the directions of the court whether the
directions is complied with
MODEL CHECKLIST OF CIVIL APPEALS
Memorandum of Appeal
Whether the Appeal is made over to the court by Sessions Court
Copy of Decree Sheet appealed against
Copy of Judgment/Order appealed against
Addresses of the parties
Wakalat Nama
Power of Attorney
Jurisdiction
Pecuniary
Territorial
Subject matter
Whether proper court fee affixed
Whether Appeal is within time
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In case of time barred appeal, whether application U.S 5 Limitation Act,
is submitted
Verification of Memorandum of Appeal
Whether respondents can legally be sued or are subject to the jurisdiction
of the court
Whether order for security is to be made under rule-10 of order-41 CPC
In case of appeal from order, whether the same is appealable under order-
43 CPC
Undertaking/affidavit that no such appeal has been filed or decided by
court
In case of fresh memorandum filed under the directions of the court
whether the directions is complied with
MODEL CHECKLIST OF CRIMINAL APPEALS
Petition of Appeal
Whether copy of Judgment/Order appealed against annexed
Whether Appeal is made over to the court by Sessions Court
If not made over as such whether Provincial Government, has by general
or special order directed to here the appeal
Whether appeal is against the order of conviction on the basis of plead
guilty.
Whether the order appealed against is appealable
Check the following
No appeal in plead guilty cases except to the extent legality of sentence
(S.412 Cr.P.C) Fine of Rs. 50/- and below.
No appeal in summary conviction in case of fine of Rs. 200/- and below
(S.414 Cr.P.C) Bench Book: A Guide for District Judiciary
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In case the appellant is in jail whether the petition is forwarded to the
court by the officer-in-charge of the jail.
Whether the appeal is within time
Jurisdiction Certificate: - Certified that I personally checked the case per checklist.
Presiding officer
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