CRIMINAL PROCEEDINGS WITH
CASE LAWS

APPLICATION OF PRINCIPLE OF
EXPECTANCY OF LIFE

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APPLICATION OF ANTI TERRORISM ACT ( XXXVII OF 1997)

2022 P.Cr.L.J. 1388

Ss. 11-H & 11-N—-Collecting fund for proscribed organization —— Appreciation of evidence —-Benefit of doubt…….. accused was arrested while collecting funds for terrorism Activities——- Memo of arrest reflecting that several private persons were present at the time of arrest of accused —— No. such person was associated with the investigation who could say that the accused was collecting money in the name of proscribed organization nor was any person from the vicinity who give any money to the accused for such purpose brought forward to support the prosecution case—– said  aspect was glossed over with the observation that the private persons has refused to act as witness—– Record was silent as to the names of any person who were called upon and refused and there was no mention of any notice even having been issued in that regard under section 160, Cr.P.C.—-Indeed, even as portrayed , the circumstances surrounding the arrest of accused did  not confirm  to a scenario where he was caught in flagrante delicto collecting funds from a specific person or conveying the same to a named  terrorist —— such facts casted doubt over the arrest of the accused , as shown, and it was apparent that the prosecution even otherwise failed to establish that the money allegedly recovered from the accused was to be made available to a proscribed organization or otherwise used for terrorism.

ABSCONSION:

[2022. P Cr. LJ 1177]

Absconsion/ abscondence; Scope of absconsion;

“Abscondence alone could not sustain conviction.” [1981 SCMR 182]

“So far as the abscondence of appellant is concerned, it is settled law that conviction on abscondence alone cannot be sustained”.

ABATEMENT OF OFFENCE

Section: 107—Abetment of a thing— A person abets the doing of a thing, who— First— Instigates any person to do that thing; or Secondly.— Engages with one or more other person or, persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, And in order to the doing of that thing; or Thirdly .— Intentionally aids, by any act or illegal omission, the doing of that thing.

108. Abettor.— A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same Intention or knowledge as that of the abettor.

[108-A. Abetment in Pakistan of offences outside it.— A person abets an offence within the meaning of this Code who, in Pakistan, abets the commission of any act without and beyond Pakistan which would constitute an offence committed in Pakistan.] Illustration A, in Pakistan, instigates B, a foreigner in Goa, to commit a murder in Goa, A is guilty of abetting murder.

Sec. 108-A added by the Penal Code Amendment Act IV of 1898 109. Punishment of abetment if the Act abetted committed In consequence and where no express provision is made for its punishment.— Whoever, abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code, for the punishment of such abetment, be punished with the punishment provided for the offence.—

ABDUCTION

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ABSCONDANCE / PROCLAIMED OFFENDER

 [Sections 87, 88, 89, Cr. P. C. And 172, 216, PPC]

Proclamation for person absconding.

87. (1) If any Court [is satisfied after taking evidence] that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows: – (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or home stead in which such person ordinarily resides or to some conspicuous place of such town or village; and (c) a copy thereof shall be affixed to some conspicuous part of the Court-house. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that; requirements of this section have been complied with, and that the proclamation was published on such day.

87. Attachment of property of person absconding.

87. (1) The Court issuing a proclamation under section 87 may at any time order the attachment of any property, movable or immovable or both, belonging to the proclaimed person. (2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. (3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made; (a) by seizure; or (b) by the appointment of a receiver; or (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or (d) by all or any two of such methods, as the Court thinks fit. (4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the Provincial Government, be made through the Collector of the district in which the land is situate, and in all other case;- (e) by taking possession; or (f) by the appointment of a receiver; or (g) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or (h) by all or any two of such methods, as the Court thinks fit. (5) If the property ordered to be attached consists of live-stock or is of a perishable nature the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court. (6) Act V of 1908. The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under [Order XL of the Code of Civil Procedure, 1908]. (6A) If any claim is preferred to, or objection made to the attachment of, any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative. (6B) Claims or objections under sub-section (6A) may be preferred or made in the Court by which the order of attachment is issued or, if the claim or objection is in respect of property attached under an order endorsed by a District Magistrate in accordance with the provisions of sub-section (2), in the Court of such Magistrate. (6C) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: (…….] Provided that, if it is preferred or made in the Court of a District Magistrate such Magistrate may make it over for disposal to any Magistrate subordinate to him. (6D) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (6A) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of property in dispute; but subject to the result of such suit, if any, the order shall be conclusive. (6E) If the proclaimed person appears within the time specified in the proclamation the Court shall make an order releasing the property from the attachment. (7) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the Provincial Government, but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under sub-section (6A) has been disposed of under that subsection, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit.

89. Restoration of attached property.

89. If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the Provincial Government, under sub-section (7) of section 88, appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such’ Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, net proceeds of the sale, or, if part only thereof has been sold the net proceeds of the sale and the residue of the property, shall after satisfying thereout all costs incurred in consequence of the attachment, be delivered to him.

ABDUCTION AND KIDNAPPING, OFFENCES, PUNISHABLE:

Section 363: Punishment for kidnapping.— Whoever, kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

364. Kidnapping or abducting in order to murder.— Whoever, kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine, Illustrations (a) A kidnaps Z from Pakistan, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section. (b) A forcibly carries or entices 5 away from his home in order that B may be murdered. A has committed the offence defined in this section.

364-A. Kidnapping or abducting a person under the age of fourteen.— 365. Kidnapping or abducting with intent secretly and wrongfully to confine person.—365-A. Kidnapping or abducting for extorting property, valuable security, etc..–-366. Kidnapping, abducting or inducing woman to compel her marriage, etc..— [Rep. by the Offence of Zina (Enforcement of Hudood) Ordinance, Vfl of 1979, S. 19.] Section 366-A. Procuration of minor girl.— Sec. 366-A ins, by the Penal Code (Amendment) Act, XX of 1923. Section 366-B. Importation of girl from foreign country.— Sec. 366-B subs. by the Federal Laws (Revision and Declaration) Ordinance. XXVII of 1981. Section 367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc….368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.—369. Kidnapping or abducting child under ten years with intent to steal from its person.—

2021 SCMR 873: Sec. 363 & 365A…Abduction for ransom…Burden of Proof.. Article 117 & 122

….Once the Prosecution had proved that the deceased was “last seen” with the accused, then the “legal burden” under Article 117 of the Qanun-e-Shahadat, 1984 on the prosecution would stand discharged, and then for the accused to avoid conviction for the charge of abduction, he would have to discharge the evidential burden under Article 122 to prove a plausible explanation or produce evidence of facts to nullify the stance established by the prosecution….Mere bold evasive denial of the accused in his statement under Section 342 Cr. P. C. would not legally suffice to escape criminal culpability.  (Ref judgments: PLD 1997 sc 515, AIR 1927 Lah. 541, PLD 1965 FC 123, 1972 SCMR 15 and PLD 1966 SC 644)

2021 SCMR 1672: Sec.365 & 365A…Kidnapping or abduction for ransom…

Reappraisal of evidence….–Prosecution’s partial failure on the charge of section 365-A, P.P.C as well as acquittal of one of the accused persons on account of his absence from the scene at the time of raid, did not adversely reflect upon the integrity of the charge, firmly resting on the totality of chain of circumstances, ranging from abduction , surreptitious confinement of the abductee, ultimately leading to his recovery with accused persons on guard from a premise under their knowledge and occupation—High Court had rightly set-aside the acquittal of accused persons recorded by the Trial Court and convicted them under S. 365, P.P.C.—Petition for leave to appeal was dismissed and leave was declined.

Guilty of charges and admission, Leave refused. (2018 SCMR 1372)

…kidnapping or abducting a person under the age of 14, rape, sodomy, qatl-i-amd, causing disappearance of evidence of offence, act of terrorism—Confirmation of Death sentence, Accused allegedly kidnapped a minor girl, where after he subjected her to sodomy and rape, before murdering her—Accused was sentenced to death by the Trial Court, which sentence was upheld by the High Court—Crimes committed by the accused were absolutely horrendous and barbaric and the same had been committed with a minor and innocent girl aged about 7/8 years—Accused had not only deceitfully kidnapped the victim but also brutalized her by committing sodomy and rape with her and then ultimately killed her mercilessly—In his pleading guilty to the charge as well as in his statement recorded under S. 342, Cr.P.C. the accused had admitted committing similar offences with eight other minor victims and in such backdrop he did not deserve any sympathy in the matter of death sentence awarded to him—Petition for leave to appeal was dismissed in circumstances and leave was refused. 

Application of Principle of Expectancy of life in kidnapping for ransom and terrorism, Brutal murder Effects: 2013 SCMR 1314

Accused kidnapped young boy for ransom and to avoid risk of identification and capture, brutally murdered him—Death sentence awarded to accused by Trial Court was maintained by High Court—Accused raised the plea of expectancy of life to get death penalty converted into imprisonment for life—Validity—Period of time already served by convict under sentence of death was certainly one of the numerous factors to be taken into account, while confirming death sentence but it was neither the only nor decisive consideration—Tender age of minor, the brutal and heinous nature of crime and pre-mediation persuaded the Supreme Court to agree with sentence awarded by Trial Court as well as High Court—Deterrent aspect of sentence could not be lost sight of either, as it was a crime of kidnapping for ransom of minor followed by murder—Sentence of death was rightly awarded by Trial Court and the courts should not hesitate nor search for laboured pretexts to award lesser sentence—Appeal was dismissed.

ABDUCTION

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ACCUSED NOT JOINING INVESTIGATION—BAIL REFUSAL OFF:-

—S. 9 (a) (v) & 9(b)—-Constitution of Pakistan, Art. 199— Pre Arrest bail, refused of— Accused not joining investigation—Prima Facie case—Deeper appreciation of evidence— Petitioner was alleged to have assets beyond the known source of income——Petitioner did not join investigation to put his case before investigating officer and claimed to be landlord and principle accused was his tenant—Effect—Such claim was neither borne out from petitioner nor sustained by any other material—Plea of petitioner required deeper appreciation of evidence to find out candor of what he contended.  High Court declined to do deeper appreciation of evidence in constitutional jurisdiction, in absence of any evidence led in trial on such issue—Prima Facie there was no material to show his implication by NAB on account of any disingenuous motive—Pre-Arrest bail was declined, in circumstances. [2022 P Cr. LJ  722] (pp. 337, 338) B& E

[2022 P Cr. LJ 309]

ACCOMPLICE

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ALIBI WITNESSES:

The witness who witnesses such plea of alibi is termed as alibi witness and the evidence should be corroborated with other piece of evidence.

BAIL GRANT OFF— ASSETS BEYOND MEANS:-

“—S. 9 (a) (iv) & 9(b)—-Constitution of Pakistan, Art. 199— Pre Arrest bail, Grant of— Assets beyond means—- Foreign Remittance—Income declared in income tax record—Accused was arrested by National Accountability Bureau for having assets beyond means—Contention of petitioner was that he had been working for a foreign company and the income was duly declared in  the tax return—Validity—Representative of the company was not summoned by investigating officer. Neither there was any tangible material nor even any circumstantial material to prima facie conclude that remittance was generation of proceed of crime.—Foreign remittance declared in income tax return carried presumption of truthfulness—Even federal Board of revenue record regarding claim of petitioner supplemented his claim regarding properties, income gained by him and foreign remittance—Petitioner did not cause any loss to government ex-chequer. Prosecution was still to establish is case and reference was not submitted before Trial Court. Bail was allowed, in circumstances”.(P. 637) A & B  

[2022 P Cr. LJ  722]

BENEFIT OF DOUBT:

[2022 P Cr. LJ Note 81]

“Any reasonable doubt arising out of the prosecution evidence pricking the judicious mind would be sufficient for the acquittal of the accused

[2022 P Cr. LJ Note 82]

“If a single circumstance creates a reasonable doubt in a prudent mind regarding guilt of the accused, benefit of the same must be granted to the accused and that the accused will be entitled to the benefit of such doubt not as a matter of grace, but as a matter of right.” Ref. [2021 SCMR 877] (P. 918) DD

[2022 P Cr. LJ Note 47]

—Benefit of Doubt—Scope—Conviction must be based and founded on unimpeachable evidence and certainty of guilt—Any doubt arising in the prosecution case must be resolved in the favor of the accused. Rel. [1995 SCMR 1377] (Para 27)

P Cr. LJ 2022 126]

—Benefit of Doubt—Principle—if there was a real and reasonable doubt as to guilt, the accused would be entitled to the benefit of doubt—Law required that the conviction should be certain and not doubtful. (P. 141) L

 [1995 SCMR 1345]

Honorable Supreme Court has held in the case of Tariq Pervaiz Vs. The State 1995 SCMR 1345 “The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit Of doubt it is not necessary that there should be many circumstance creating doubt if there If a single circumstances creates a reasonable doubt in a prudent mind regarding guilt of the accused, benefit of the same must be granted to the accused and that the accused will be entitled to the benefit of such doubt not as a matter of grace but as a matter of right

CONFESSION:

[2022 P Cr. LJ Note 77]

–Confession—Judicial & Extra Judicial confession—Scope—Judicial and Extra judicial confession could be made sole basis for conviction of an accused, if the court was satisfied and has believed that it was true and voluntary and was not obtained by torture, coercion or inducement.

CONVICTION:

[2022 P Cr. LJ Note 36]

Conviction—Scope—Conviction must be based and founded on unimpeachable evidence and certainly of guilt—Any doubt arising in the prosecution case must be resolved in favour of the accused. (P. 55) F

CRIMINAL PROCEDURE CODE (V OF 1898)

1. 154 — First Information Report—– Delay in lodging the FIR ——- Scope —- if evidence recorded in court appeared to be trustworthy and convincing, then delay in lodging of the FIR could be ignored, keeping in view the peculiar circumstances of each case.

DUTY OF PROSECUTION:

[2022 P Cr. LJ 385]

 “We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is by now well settled principle of law that it is the Prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weakness of the case of the defence” (P. 391) F

DEEPER APPRECIATION OF EVIDENCE:

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DOCUMENTARY EVIDENCE:-

—S. 19—Criminal Procedure Code (V of 1898), S. 161 & 173— Constitution of Pakistan, Art.199—Constitutional Petition— Criminal Trial—-Documentary Evidence—Witness not named in calendar of witnesses—Statement u/Sec 161 Cr.PC not recorded:- It was not the document which was to play its role in a case but the linchpin to decide the document which were adjudged by the courts of law according to Qanoon-e-Shahdat Ordinance 1984—Not necessary that the official, who was called to produce a particular document I his custody was cited in calendar of witnesses by his family name— such was sufficed if the witness was listed for prosecution as its witness through his designation—Custodian of records come and go who do not have permanent postings at particular stations. Investigation officer could collect any document from any person u/sec 19(b) of NAB Ordinance, 1999, if the same had relevancy with the case. It was not necessary that statement under section 161 Cr.PC of producer of the document be recorded.—Investigation officer under section 19(c) of NAB ordinance 1999, could examine any person acquainted with the facts and circumstances of the case—Only in the later situation, recording of statement under section 161 Cr.PC was necessary while in the former situation no legal obligation lied on investigation officer to resort to legal provision under section 161 Cr.PC. High Court declined to interfere in order passed by Trial Court—Constitutional Petition was dismissed, in Circumstances.( PP. 312, 313 ) A, B,& C

EXTRA JUDICIAL CONFESSION

2022 P Cr.L.J 1427 [P. 1434]D

1. 164… Extra – judicial Confession ……..Scope Extra Judical Confession could be made sole basis of conviction of an accused , if the court belived that it was true and voluntary and was not obtained by torure or coercion or inducement.

EFFECTS OF DEATH OF ACCUSED:

Appeal filed by accused who had been sentenced to imprisonment and fine would not abate on his death——Sentence of imprisonment would only be abated and not that of fine on his death pending hearing of appeal—Appellate Court could go into propriety and legality of sentence of fine even after death of accused—Usually a criminal appeal would abate on the death of accused, but S.431, Cr.P.C., seemed to have made an exception to the general rule—Under S. 431, Cr.P.C., appeal against sentence of fine would not abate by reason of the death of accused, because it was not a matter which affected his person, but one which would affect his estate. Reliance on 2018 P. Cr. L. J. 1513

FIRST INFORMATION REPORT (FIR)

2022 P Cr.L J 1373

—– S. 154 – Criminal Procedure Code (V of 1898)—– Information in cognizable cases ——Scope—— Everyone is bound to report the commission of offence to the police immediately, so, that the FIR should be registered and accused punished.

2022 P CR. L J 1356 [ P.1362] B

Delay in recording statement of witness by the Police—- Scope— Credibility of a witness is always looked with serious suspicion, if his statement under S. 161, Cr.P.C , was recorded with delay without offering any plausible explanation.

FURTHER INQUIRY—BAIL GRANT OFF:-

—S. 9 (a) (v) & 9(b)—-Constitution of Pakistan, Art. 199— Pre Arrest bail, Grant of— Further inquiry, case of— Petitioners were family members of principal accused who were alleged to have involved in the offence— Validity— To decide a question of entitlement of an accused to relief of pre-arrest in a pending case, not only element of malice on the part of complainant or prosecution but merits of the case were to be looked into—If the case of on merits was found to entail further inquiry into his guilt and there were no reasonable ground to believe that he was involved in reported offence, accused was to be extended such relief irrespective of the fact whether or not there was any material indicating malice on the part of prosecution or complainant to implicate him in the case—No apparent element of malice on the part of NAB to implicate petitioners i.e. family members of principle accused,  but on merits they had a good case for consideration— Pre-Arrest bail  was allowed, in Circumstances(pp. 337, 338) D&F

MEDICAL EVIDENCE;-

[2022 P Cr. LJ Note 77]

—-Medical Evidence—Scope—Medical evidence was mere supporting/ confirmatory type of evidence. Medical evidence could tell about locale, nature, magnitude, of injury, kind of weapon used for causing injury but it could not tell about the identity of the assailant who caused the injury. (P. 115)

[2022 P Cr. LJ 1059]

—-Medical Evidence—Scope—Medical Evidence only spoke about the nature of injuries, duration and seat of injuries, kind of weapon used in the commission of offence including cause of death etc. but could not identify the accused. (P. 1066) D

MOTIVE:

[2022 P Cr. LJ 1177]

Prosecution though was not called upon to establish motive in every case, yet once it had setup a motive and failed to establish the same was to suffer consequences and not the defence. (P. 1186) H

[2022 P Cr. LJ 296]

–Motive—Scope—Once motive is established by prosecution, then it has to be proved otherwise adverse inference would be drawn. (P. 307) D

NATIONAL ACCOUNTABILITY ORDINANCE 1999

[2022  P Cr.LJ  1000]

Bail Refusal:

—S. 9(a) (b) —-Constitution of Pakistan, Art. 199—Constitutional Petition—Bail, refusal of—-Prima Facie Case—Accused persons were arrested for cheating public at large by floating websites with fake identities and had received millions of rupees. Validity, Principal accused posing himself as a chief executive officer of a fake company fully facilitated his co-accused in raising significant funds by deriving unsuspected real estate, digital and foreign currency investors under the guise of returning profit at a high rate–in month of November, the company account was offline and a notification reading as ‘System is Hacked’ was posted instead—Sufficient documentary evidence was brought on record by investigating officer which prima facie showed principal accused as master mind of mega scam, who was creator/ owner of websites in question—Principle accused with the connivance and collusion of co-accused induced innocent people for investment in fake company and thereby deprived them from their hard earned money worth millions of Rupees.” High Court declined to interfere in the matter as both the accused persons were prima facie connected with the commission of offence—Bail Was refused in Circumstances. (p. 1004) A & B

MISUSE OF AUTHORITY, APPRECIATION OF EVIDENCE

“Accused persons failed to point out any material illegality or serious infirmity committed by trial court while passing judgment in question—High Court declined to interfere in conviction and sentence awarded to accused persons as the same was based on fair evaluation of evidence brought on record.—Appeal was dismissed, in circumstances.”

[2022  P Cr.LJ  624]

PROCEDURE TO TAKE CONGNIZANCE OF OFFENCE:

2022 P Cr.LJ 1437 [ pp. 1440,1441] A,B, C & D]

Criminal Procedure Code (V of 1898) —–

……….Ss. 200,201,202,203 & 204 ….. Examination of Complaint Magistrate not competent to take cognizance of the case ….. Procedure…….Postpone of issue of process…… Dismissal of Complaint …… Issue of process ——Scope……. After receipt of complaint, if complaint is made in writing to magistrate, who is not competent to take cognizance of the same, he shall return the complaint for presentation to the proper court under S. 201 of Cr.P.C. …. However, after receipt of complaint by the magistrate, who is competent to take cognizance of the case, Magistrate, at the time of taking cognizance on a complaint, has to at once examine the complainant upon oath and reduce the substance of the examination of to writing, which shall be signed by the complainant as well as Magistrate ….. Thereafter, Court can postpone the issuance of process of compelling the attendance of the person complained against and either inquire into the case itself or direct any inquiry or investigation to be made by the justice of peace or by a police officer or by such other person for the purpose of ascertaining the truth or falsehood of the complaint …….Court may dismiss the complaint if after statement of  the complainant recorded on oath and result of investigation or inquiry, if any , under S. 202, Cr.P.C, in judgment of the Court there is no sufficient grounds for proceeding, if court considered that there is sufficient grounds for proceeding, then it shall issue process for attendance of the accused in the   complaint [ pp. 1440,1441] A,B, C & D]

PROCEDURE WHERE TO PLEAD GUILTY OR NOT GUILTY

2022 P Cr. L . J 1385

……S. 265-E ……… Criminal trial …….Plea…….Scope—–Procedure in case where the accused “pleaded guilty” is different from the procedure adopted in the cases where the accused “Plead not guilty”…. Where the accused pleads guilty, no further proceeding in respect of the offence is conducted and after looking into the nature of the offence by taking a  lenient view the minimum sentence ( if  prescribed by the statue) is awarded….. Where the court intends to award maximum punishment, the accused shall be forewarned about the implication of the charge and the effect of pleading guilty, it is not going to take lenient view and if accused still stands by his position then the Court shall decide the case according to the nature of the Charge. [p.1387] C & D

…S. 412 …. No. appeal in certain cases when accused pleads guilty —- Scope …..when an accused pleads guilty and is convicted, there shall be no appeal except as to the extent and legality of the sentence. [p.1387] A

PROCEDURE AND POWERS OF ANTI-TERRORISM COURT:

2022 P Cr.L J 1437

1. 19——Criminal Procedure Code (V of 1898), S.190—- Procedure and powers of Anti – Terrorism Court ——-Cognizance of offence by Magistrate —- Scope ——Anti – Terrorism Court directly takes cognizance of the case triable by it without being sent to it under section 190 of Cr.P.C.
2. 19 —– Criminal Procedure Code (V of 1898), S. 200— Procedure and power of Anti- Terrorism Court—–Examination of Complainant——- Scope —– Petitioner had filed a complaint before the Anti- Terrorism Court while clearly mentioning in the same that her two minor paternal grand- daughter were abducted on gun point and there after ransom was received  for release of the minors,  which was paid by the petitioner but even then they were not released—-proper course to be adopted for judge, Anti-Terrorism Court after receipt of complaint was to at once examination of complainant by dismissing  the same after hearing preliminary arguments of the counsel—–Impugned order was not sustainable in the eye of law and the same was set aside —– Matter was remanded to the judge, Anti- Terrorism Court , for proceeding with the complaint in accordance with law.

PLEA OF ALIBI

PLEA OF ALIBI is a defence usually taken in the Criminal proceedings, to the effect that the Accused person was not present on crime scene, to claim innocence and that should be pleaded at the earliest opportunity to cover time of alleged offence.

Plea of Alibi, Burden of proof, Cogent reasons to believe (2000 SCMR 1805) (1983 SCMR 697)

“Accused taking plea of alibi had to discharge the burden by producing satisfactory, reliable and authenticated evidence that his presence at the place of incident at the relevant time was not possible because of his present at that time at another place…Mere production of the attendance register which was not properly maintained and unaccompanied with a certificate of any responsible officer of the Department, could not be termed to be reliable, satisfactory and authenticated evidence to believe the plea of alibi of the accused…Court had to give cogent reason and ground for believing plea of alibi raised by accused”.

2000 SCMR 1805

PLEA RAISED WITHOUT DISCUSSING EVIDENCE,,,EFFECTS:

High Court had believed the plea of alibi raised by accused without discussing evidence and assigning any reason and acquitted him on that account. Fact that co-accused having been wrongly acquitted by High Court, in circumstances would not entitle the accused to acquittal.

PRESUMPTION OF CORRECTNESS

Control of Narcotic Substances Act (XXV Of 1997)

2022 P Cr.L.J Note 92

1. 9 (c ) ——Control of Narcotic Substances ( Government Analysts) Rules, 2001 Rule . 6—— Possession of narcotics ——–Appreciation of evidence——–

Held ——– it was not safe to rely on that report —– presumption of correctness was attached to the report of Government Analyst under Section 36(2)  of the Control of Narcotics Substances Act, 1997, Underlined statutory significance of the report, therefore, details of the test and analysis in the shape of of protocols  applied for the test were necessary to safe guard rights of the parties—— Report of the Forensic Science Agency was also not worthy of reliance, hence the same could not be read against the accused.

1. 9 ( c ) ——Control of Narcotic Substances ( Government Analysts) Rules, 2001 Rule . 6—— Possession of narcotics ——–Appreciation of evidence——–

Held ——– it was not safe to rely on that report —– presumption of correctness was attached to the report of Government Analyst under Section 36(2)  of the Control of Narcotics Substances Act, 1997, Underlined statutory significance of the report, therefore, details of the test and analysis in the shape of of protocols  applied for the test were necessary to safe guard rights of the parties—— Report of the Forensic Science Agency was also not worthy of reliance, hence the same could not be read against the accused.

SURETY BOND AND ITS FORFEITURE:

Section 91 of the Criminal Procedure Code 1898:

Power to take bond for appearance: When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summon or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court.

Power of court, to commit person in custody, on failure to give security for his attendance:

Trial Court was required to proceed under S. 91, Cr.P.C. and to direct accused to execute bond with or without sureties for his presence in the court

Issuance of Process against Accused: Sufficient Grounds (2015 SCMR 56)

Sufficient grounds for proceeding….Process was to be issued to the accused when the taking cognizance of the offence was of the opinion that there were sufficient grounds for proceeding…Such opinion was not to be equated with the existence of reasonable grounds for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years.  

Without Show cause, Forfeiture of surety bond: Remand of Case: (P L J 1978 Cr. C. (Q) 421)

Court order to surety to pay the amount without asking to show cause against forfeiture order set aside. Case remanded for notice to surety to show cause and to determine the extent of forfeiture

Reduction in the amount of forfeiture on production of accused (NLR 1988 Cr. 248) (1997 SCMR 1387)

Amount of forfeiture reduced from Rs. 2 lac to Rs. 5,000 when the accused was produced before the competent Court by the effort of the surety and the surety had derived no monetary benefit.

WHETHER AN ACCOMPLICE A CREDIBLE WITNESS?

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The word accomplice is used in commission of offences where the trial examines the worth of said person.

Article 16 of the Qanun-e-Shahadat 1984 states the following about the Accomplice:

“An accomplice shall be a competent witness against an accused person, except in the case of an offence punishable with hadd; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

Whereas the Illustration (b) of Article 129 of the said Order states that,

“An accomplice is unworthy of credit, unless he is corroborated in material particulars.”

The interpretation of the provisions postulates that the former provision pertains to the rule of law while the latter pertains to the rule of prudence. Therefore, it can be concluded that both provisions are neither contradictory nor repugnant to each other, rather both supplement to each other.

Regarding the word “Accomplice”, though the word ‘accomplice’ has not specifically been defined in the Qanoon-e-Shahadat Order 1984, there are certain provisions that have been enumerated, not only in the Qanoon-e-Shahadat Order (QSO) but also in the Code of Criminal Procedure (Cr.P.C) 1898, which deal with the word ‘accomplice’. The meaning conveys sounds that a person who voluntarily participates in the commission of an offence.