Course Outlines The Law of Criminal Procedure

Transcription

1 I. Categories of Criminal procedure: There are two categories of Criminal Procedure: Course Outlines The Law of Criminal Procedure (i) Constitutional Criminal Procedure; (ii) Legislative / Ordinary Criminal Procedure. Constitutional Criminal Procedure: (1) You are here studying the subject of criminal procedure. But whatever the subject of a legal study, the starting print must be the Constitution namely the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), that being the supreme law of the country. The reasons are: i) it is the source from which all governmental forums, including the executive forum to prosecute, investigate etc. criminal offences, the legislative power to create offences, to provide for their punishment, and to establish the procedure for their trial, and the judicial power to try the criminal offences and furnish the offences, emanate; ii) it provides, particularly by guaranteeing some of the important human fundamental rights, a constitutional model of a fair criminal procedure a mini-code of criminal procedure. (2) Relevant provisions of the U.S. Constitution, relating to criminal procedure, particularly:- i) the Fourth Amendment, ensuring the right to privacy, including the right against unreasonable searches and seizure of persons and things; ii) the Fifth Amendment, guaranteeing:- (a) (b) (c) (d) (e) the right to a speedy and public trial; the right to be informed of the nature and cause of the accusation; the right to be confronted with the witnesses against him; the right to have compulsory process for obtaining witnesses in his favour; and the right to have the assistance of counsel for his defense. (3) Relevant provisions of the Constitution of Pakistan, relating to criminal procedure, as contained in Part II, Chapter 1, of the Constitution. (4) i) Relevance of the U.S. Constitution, its Bill of Rights, the Constitutional Law developed in America rooted in the Rights and the compounding Rights relating to criminal procedure granted by the Constitution of Pakistan. ii) Effect of, so to say, the internationalization of the criminal procedure and the cases decided in different jurisdictions on the law of Pakistan. 1

2 (5) The significance of a written Constitution. Reading Material: 1. Relevant provisions of the U. S. Constitution, and important cases on Constitutional Criminal Procedure from U. S. Jurisdiction, namely: i) Marbury v Martson 5 US 1; ii) Katz v US 389 US 347; iii) Johnson v US 333 US 10; iv) Illinois v Gates 462 US 213; v) US v Watson 423 US 411; vi) Welsh Case 466 US 340; vii) Terry v Ohio 392 US; viii) Chimel v California 395 US 752; ix) Wolf v Colorado 338 US 25; x) Mincey 437 US 385; xi) Schmerger v California 384 US 757; xii) Miranda v Arizona 384 US 436; xiii) Massiah v US 377 US 201; xiv) Powell v Albana 287 US 45; xv) Gideon v Wainwright 372 US 335; xvi) Escobedo v Illinois 378 US 478; xvii) Rhode Island v Innis 446 US 291; xviii) In Re-gault 387 US 1, Relevant provisions of the Constitution of Pakistan, and cases under them: i) Ziaur Rahman case PLD 1973 SC 49; ii) Muhammad Mubeen-us-Salam v Federation PLD 2006 SC 602 (excepts four pages only) iii) Abdul Malik v State PLD 2006 SC 365; iv) Ms. Rowshan Bijaya case PLD 1957 Dacca 241; v) Manzoor Elahi case PLS 1975 SC 66; vi) Christie - (1947) 1All ER Criminal Procedure as an element in Rule of Law:- i) Articles 4 and 5 of the Constitution; ii) Generally 2

3 Reading Material: i) Manzoor Elahi case; ii) Bonnet (1993) 3 All ER 138. For the reading: Judicial Review of Public Actions by Justice (R) Fazal Karim (i) Part II, Chapter 1; (ii) Part II, Chapter 4; (iii) Part VIII, (a) Section A, Chapters 4 & 5; (b) Section B, Chapters 1 to 17; Ordinary/Legislative Criminal Procedure: 1. Relationship between Criminal Law and Criminal Procedure. 2. Functions of Criminal Procedure. 3. Stages of Criminal procedure: i) Investigation and Inquiry ii) Prosecution. iii) Trial 4. Participants in the Criminal Justice process: i) Police ii) Prosecutor iii) Defense Counsel iv) Courts 1. INVESTIGATION Its definition Section 4 (b) Cr.P.C; Its object: Cognizable and non-cognizable offences: First Information Report (FIR), Section 154 Cr.P.C; its importance Police Officers competent to Investigate: Officer Incharge of Police Station:- Section 4 (p) and Section 551 Cr.P.C; Police Order 2002 Powers of Police Officers; a) are derived from law; and b) are subject to the Constitution and Law 3

4 Muhammad Bashir vs. SHO PLD 2007 SC 539 Powers of Police Officers are great and caution is needed in their uses: a) power to arrest and detain Sections 46, Cr.P.C; b) power to require the attendance of any person Section 160 Cr.P.C c) power to enter and search Section 47, 49, 165 Cr.P.C; d) power to search person Section 51 Cr.P.C; e) power to seize property Safeguard against misuse of Police powers; a) Articles 9, 10, 13, 14 and 24 of the Constitution; b) Sections 60, 61, 163 Cr.P.C; c) Statements of witness recorded during Investigation their limited use Sections 161, 162 Cr.P.C; d) Maintaining a police diary and its use Section 172 Cr.P.C; Remand to custody during investigation: a) When investigation cannot be completed within the prescribed time Sections 61 and 167 Cr.P.C; b) Magistrate s power is i. To remand to police custody, or ii. To remand to judicial custody; c) Distinction between police and judicial custody its importance; d) Rules to be observed by Magistrate in granting police custody, Effect of violation of Article 10 etc. - Manzoor Elahi PLD 1975 SC 66; - Bennet (1993) 3 All ER Alvarez (1992) 112 SC 2188 Confessions by accused persons during investigation: a) Section 162 Cr.P.C use of statements before police: b) Judicial confessions and how to record them; Section 164 Cr.P.C; and High Court Rules; c) Use of Confessions at trial the subject will be dealt with under the head trial Culmination of Investigation; a) Report under Section 173 Cr.P.C; commonly known as Challan i. May recommend cancellation of case; or ii. It is a charge sheet against the accused named in the Challan 4

5 Opinion of the police under Section 173 is not binding on Court; b) So that the Magistrate may not cancel the case; and c) May summon the accused for trial Cancellation of a case is administrative phase of criminal procedure: a) is not acquittal of the accused: b) the Magistrate canceling may subsequently take cognizance of the case on complaint Investigation is administrative phase of criminal procedure a) as distinguished from trial; and b) entitles the suspect to fairness but not as much as during trial, e.g. cross examination of witness and hearing before Challan. A Magistrate during investigation may: a) sometimes act in administrative capacity; and b) sometimes in judicial capacity For example, a Magistrate granting or refusing remand to police custody perform a judicial function, while canceling a case, he performs and administrative function. Control of investigation by Courts; a) Relationship between Court and Police b) Control of investigation by Court i. Khawaja Nazir Ahmed AIR 1945 PC 18; ii. Shehnaz Begum PLD 1971 SC 677 iii. Malik Shaukat Ali Dogar PLD 1994 SC 281 Reading Material 1. The Code of Criminal Procedure, 1898, with special reference to the Sections mentioned above 2. Norwest Holst (1978) 3 All ER Brig Imtiaz Ahmed 1994 SCMR 2142; 4. Miranda 384 US 436; 5. Blackburn 361 US 199; 6. Bazal Ahmed PLD 1957 Lah Muhammad Siddiq PLD 1992 Kar Nazir Ahmed PLD 1978 SC JC Shah AIR 1969 SC Ghulam Sarwar 1984 P.Cr. L.J Khan Asfand Yar Wali PLD 2001 SC Azmat Ali PLD 1999 Pesh 39; 13. Bahadur PLD 1985 SC 62; 5

6 14. Waqar-ul-Haq PLD 1988 Lah. 336, 1988 SCMR 1428; 15. Ajaib Singh - AIR 1953 SC Access to Justice in Pakistan by Justice (Retd) Fazal Karim, PP Judicial Review of Public Actions by Justice (Retd) Fazal Karim, comments under Article 9, 10, 13, 14 and 24 of the Constitution 2. Inquiry a) Its definition Section 4 (k) Cr.P.C; b) As distinguished from trial c) May be in respect of a matter; Inquiry i. Which is an offence, e.g. under Section 159 Cr.P.C; ii. Which is not an offence e.g. under Sections 107, 108, 109, 111, 133, 145, 174 and 176 Cr.P.C; a) Under Section 145 and orders under it are subject to decree or order of civil Court b) Under Section 174 may result in inquest by Magistrate c) Under Section 176 when a person dies while in the custody of police Reading Material 1. Section of Cr.P.C; indicated above 2. Shah Muhammad Vs. Haq Nawaz PLD 1970 SC Mehr Muhammad Sarwar Vs State PLJ 1985 SC Prosecution The role of the prosecution and his relations with public and court; Recent 2006 Provincial legislations establishing criminal prosecuting service in each Province; Defence Counsel: His duties to client and Court Reading Material - Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act Discretion to Prosecute: o R V Inland Revenue (1993) 1 All ER 772 o Brig Imtiaz Ahmed 1994 SCMR 2142 o R V Cornel (1884) Ir. LR 261, 312 o Berger 295 US 78, 88 6

7 4. TRIAL Parties The system of judicial procedure is, generally speaking, adversarial, Criminal law is an aspect of public law, and the parties are the state, as the representative of society, on the one side and the person accused, on the other. The Islamization of the laws has assigned some role to private parties in some cases. - Gul Hassan PLD 1989 SC Matlub Hussain PLD 1951 FC 115 Courts which may try offences; i. Classes of courts under Cr.P.C Section 6 ii. Their subordination, Section 17, Cr.P.C iii. Their powers Sections 31, 32 read with Section 30 and Section 35 Cr.P.C - Bashir Vs State PLD 1991 SC 1145; - Javed Sheikh Vs. State 1985 SCMR 153 iv. Application of Sections 35 and 397 Cr.P.C Trial - Bashir Vs State PLD 1991 SC 1145; Its meaning; Its object What is fairness - Berger Vs. US 295 US 78 - R V Sang (1979) 2 All ER1222, 1230 Summary Trials a) Under Chapter XXII Cr.P.C b) Their object c) Procedure applicable to them Regular Trial Necessary pre-trial steps: a) Determination of place of trial Cr.P.C, chapter XV sub chapter A, Section ; Section 4 PPC and Section 531 Cr.P.C 7

8 b) Cognizance of offence - Cr.P.C Chapter XV, sub chapter B, Sections B; i. Cognizance of offence triable by Magistrate ii. Cognizance of offence triable by Court of Sessions iii. Meaning of taking cognizance iv. In case of public servants - Raja Khush Bakht-ur-Rehman 1985 SCMR Muhammad Nawaz PLD 1967 Lah Mehr Khan 198 SCMR Federation Vs Zafar Awan PLD 1992 SC 72 - Waqar-ul-Haq PLD 1988 Lah. 336 c) Procuring the attendance of accused Section 204, 205 read with Section 90 Cr.P.C d) Other matters; i. Supplying copes of statements etc. to accused e) Right to Counsel By the Magistrate Section 241-A, Cr.P.C By the High Court and Court of Session Section 265-C Cr.P.C Effect of non-supply of statement under Section 161 or Pulukuri 74 IA 65 - Faiz Ahmed PLD 1960 SC 8 - Taj Muhammad PLD 1976 SC Article 10 of the Constitution - Section 340 Cr.P.C - Chapter 24-C High Court Rules and Orders It is part of fairness - Miranda 384 US 436; - Bazal Ahmed PLD 1957 Lah Moslemanddin Sikdar PLD 1957 Dacca Muhammad Usman PLD 1965 Lah Mrs. Rowshan Byjaya PLD 1965 Dacca 241 f) Procedure where there is a Challan and a private complaint for the same offence: Nur Elahi - PLD 1966 SC 708 Zulifqar Ali Bhutto PLD 1976 SC 38 Muhammad Bohra PLD 1989 Lah. 18 8

9 Commencement of Trial Open Court Section 352, Cr.P.C Speedy trial and adjournments Section 344 Cr.P.C Adjournment is discretionary Adjournment for an indefinite period - Shadi Khan PLD 1978 SC 38 - Muhammad Hussain PLD 1959 Lah. 322, 329 Duty of Court to prevent abuse or delay - Muhammad Hussain PLD 1959 Lah. 322, Goldsmith (1977) 2 All ER 566, Sh. Muhammad Shafiq 1992 P.Cr.L.J Sang (1979) 2 All ER 1222, 1230 Adjournment may be on payment of costs - Bishmabar AIR 1926, Lah. 407; - Sh. Abdul Haq PLD 1955 FC 401; - Dr. Manzoor Hussain (1969) P.Cr. LJ 336 Charge What is a charge, form and language etc. of charge Sections 221 to 240 Cr.P.C - Chittarajan AIR 1963 SC M.Younas Habib Vs. State PLD 2006 SC 155 Illegality and irregularity in charge; effect, Sections 225,, 535, 537 Cr.P.C - M. Younas Habib Vs. State PLD 2006 SC 155 When the charge is admitted Section 243 and 265 Cr.P.C plea of double jeopardy goes to jurisdiction and charge is the stage to raise it Article 13 of the Constitution; Section 403 Cr.P.C and Section 26 of the General Clauses Act - Akhtar Ali PLD 1963 Lah. 390 Trial before Magistrate chapter XX Cr.P.C Trials before High Court and Court of Session Chapter XXII-A Cr.P.C General provision as to trials inquiries Chapter XXIV Cr.P.C 9

10 Compounding Offences: - Section 345 Cr.P.C - Sections 309, 310 etc PPC Mode of taking and Recording Evidence Chapter XXV Cr.P.C. Right of accused to be present Section 205, 353 and 540-A Cr.P.C i) Presence can be dispensed with, Section 265 Cr.P.C ii) The right can be waived iii) When the accused has absconded, Section 87 and 88 Cr.P.C iv) Trial in Absentia - R V Jones (2002) 2 All ER 113; - Mehram Ali PLD 1998 SC 1445, US vs. Gagnon 470 US Allen 397 US Zulifqar Ali Bhutto Case PLD 1979 SC 39 FIR, its nature and value as evidence in different circumstances; - Muhammad Ashif PLD 1957 SC (P) 293; - Liaqat Ali 1981 SCMR 1130; - Nasim Akhtar PLD 1968 Lah. 841; - Muhammad Hanif PLD 1977 Lah.1253; - Lakhmir PLD 1968 Q 7; - Ghulam Qadir PLD 1967 Pesh. 269 Its use: - A. Nagesia AIR 1966 SC Khalil Ahmed 1975 SCMR 442; Ismail 1976 SCMR Hamid Khan PLJ 1980 SC 519 By Culprit: - If it contains confession of guilt against the culprit himself - Muhammad Saleh PLD 1965 SC A. Nagesia AIR 1966 SC Against others Ghandal PLD 1960 SC 137; Salman Shah PLD 1971 SC 751 Other police statements e.g. 10

11 - One made under Section 161 Cr.P.C can be used for contradicting witness, Section 162 Cr.P.C - Police diaries cannot be used as evidence at all; but can be used by the Court, Section 172, Cr.P.C Statement by witnesses before Magistrate during investigation: - Section 164 Cr.P.C read with Section 244-A and 265 J Cr.P.C Dying declaration before Magistrate, Article 46 of 1984 Order- - Muhammad Aslam PLD 1978 SC 298 It is evidence and can form basis of conviction Reg V Osman (1881) 15 Cox CC 1, 3: Zarif PLD 1977 SC 612, 617 Its reliability: - Bakhsheesh Singh AIR 1925 Lah Abdul Razik PLD 1965 SC Tawab Khan PLD 1970 SC 13 - Muhammad Aslam PLD 1978 SC Rattan (1971) All ER 801 Recovery evidence, Section 103 Cr.P.C Police officials as recovery witnesses: - Mushtaq Ahmed PLD 1996 SC Mir Ahmed 1995 SCMR Javed Masih PLD 1994 SC 314, 324 When Section 103 does not apply - Mir Ahmed 1995 SCMR Kalka PLD 1958 SC (Ind) Muhammad Aslam 1970 SCMR Sardar Khan 1998 SCMR 1823 Opinion of investigating officer as to guilt or innocence is inadmissible Muhammad Iqbal 1996 SCMR 918 Examination of Accused Examination of accused without Oath: 11

12 Under Section 342 Cr.P.C Section 5 Oaths Act, 1873; At any stage After prosecution evidence is closed; Its use Section 342 (3) Examination under Section 342 is without Oath Its Object Amin-ul-Haq PLD 1952 FC 63, 70; Abdul Wahab PLD 1955 FC 88; Jamal PLD 1960, Lah. 1192, 1195 Must be read as a whole Shabbir Ahmed PLD 1995 SC 343 Examination of accused on Oath, Section 340 (2) Cr.P.C The accused shall give evidence on Oath Section 340 (2) Cr.P.C to be read with Article 13 of the Constitution Their effect is:- i) the accused cannot be compelled to make statement on Oath; and ii) no adverse inference can be drawn against him Mst. Amir Khatoon PLD 1991 SC 787; Also see Shah Wali PLD 1993 SC 32; And Muhammad Ishaq PLD 1992 P.Cr.LJ of 2059, 2075 Defence Evidence The accused has a right to have witnesses and documents summoned in his defense e.g. Section 265F, and Section 540 Cr.P.C Power of Court to summon evidence Section 540 empowers the Court at any stage: i) to examine any witness at the application of a party; or ii) even suo motto But when evidence is essential to the just decision of the case, the Court must summon the witness - Muhammad Azam PLD 1984 SC 95, 118; - Maulvi Muhammad Jamil PLD 1965 SC Rashid Ahmed PLD 1971 SC

13 Arguments Arguments in cases triable by Session Court or High Court, Section 265-G; Argument in cases tried by Magistrate, no express provision yet the practice is to hear arguments; Final Order/Judgment During trial at any stage: i) Section 247 Cr.P.C when the complainant does not appear on the date of hearing; ii) Section 248 Cr.P.C when the complainant withdraws the case; iii) Section 249-A, 2650K Cr.P.C when the Court consider that the charge is groundless or no probability of conviction iv) Section 345 Cr.P.C when an offence mentioned in that section has been compounded At the conclusion of trail: This section, it should be noted, is the result of Islamization. Even murder cases can now be compounded even in appeal and revision. The Court is to pronounce judgment of conviction; or acquittal, Section 366 to 373 Cr.P.C The judgment is a written judgment with reasons, Section 366 to 369 Cr.P.C Copy of judgment of conviction to be supplied, Section 371 Cr.P.C Judgment of acquittal And power to award compensation Section 250 Cr.P.C Judgment of conviction; And the power to award compensation, Section 544-A Cr.P.C Conviction and sentencing difference Conviction is followed by sentence; no sentence without-conviction Abdul Kadir 1990 PSC

14 Sentencing General objects are nowhere mentioned; but well-known- Spaziono 82 LED 2d 340, 353; As recognized in Islam Muhammad Bashir PLD 1982 SC 139, 144 Proportionality; sentence to be proportionate to the offender s culpability; South Carolina 104 L Ed 2d 876 Cuningham (1993) 2 All ER 15, 18 Zafar 1999 SCMR 2028 On sentence generally See Access to Justice in Pakistan by Justice (Retd) Fazal Karim, pp Disposal of property subject matter of offence at the conclusion of trial Section 517, 522 Appeals An appeal i) must be expressly provided; Section 404 Cr.P.C ii) is a continuation of the original proceeding where a cause is re-heard - Jamal Shah PLD 1966 SC 1 50; - Sabir Shah PLD 1995 SC 66, 143, 212; - Rab Nawaz-PLD 1994 SC 858, 866 Re-hearing, its meaning Calvin (1979) 2 All ER 440 Appeals Under Section 408, 410, 411-A Cr.P.C Against acquittal Powers of appellate Court: By the public prosecutor, Section 417 (1) and Section 411-A Cr.P.C By the complainant, Section 417 (2) Cr.P.C By any person aggrieved, Section 417 (2A) Cr.P.C i) It may dismiss an appeal summarily, Section 421, Cr.P.C 14

15 ii) When not so dismissed, record to be summoned and notices be issued Section 423 (1) and 428 iii) No power to dismiss an admitted appeal for non appearance; iv) May suspend operation of order, Section 426 Cr.P.C v) May dismiss the appeal; Section 423 Cr.P.C vi) Reverse etc. the order under appeal, Section 423 Cr.P.C Death of accused, its effect is that appeal abates, Section 431, Cr.P.C Revision A revision under Section 435, 439, 439-A Cr.P.C i) its incidents Adnan Afal PLD 1969 SC 187 ii) Scope, Section 438 Abdul Rehman Bajwa PLD 1969 SC 187 iii) Is subject to restriction enacted by Section 439 (3); 439 (4), 439 (5) iv) No second revision lies Section 439-A and 439 (4)(b) Cr.P.C Bail In the context of Articles and 9 of the Constitution Its meaning and concept; sections 499, 500 Cr.P.C - Khushi Muhammad PLD 153 FC Khurshid Ali Kasuri-PLD 1996 SC Hakim Ali Zardari-PLD 1998 SC 1, 27 Surety Chapter XLII Cr.P.C In bailable cases is a right, Section 496 Cr.P.C In non-bailable cases is discretionary, Section 497, 498; Accused persons, Section 407, 498 are confined to them; - Muhammad Ayub PLD 1966 SC 1003, 1012 Not to be withheld as punishment- - Abdul Malik PLD 1968 SC 349; - Sikander 1995 SCMR 387; Reasonable Ground, what is - Abdul Malik PLD 1968 SC 349; - Nisar Ahmed PLD 1971 SC 174 Further Inquiry, what is - Arbab Ali 1985 SCMR 195; - Ibrahim 1985 SCMR 382; Bail to women, minors, sick persons, Section 497 (1), Proviso; 15

16 Pre-Arrest Bail Section 497, 498 and 498-A Cr.P.C; Admitted to bail, meaning - Muhammad Ayub PLD 1966 SC Khusi Muhammad PLD 1953 FC 170; It is an extraordinary power- - Hidayatullah PLD 1949 Lah. 1 - Sadiq Ali PLD 1966 SC 589; - Muhammad Khan PLD 1983 SC 82; - Zia ul Hassan PLD 1984 SC 192 Can a bail order be conditional e.g. subject to cash security or that the accused will not make political speeches - Mahmood Ali Kasuri PLD 1963 SC 478; - Faiz-ur-Rehman Sarkar 1970 SCMR 175; - Abdur Rehman 1985 SCMR 542; Can the Court refusing pre-arrest bail order arrest - Sadiq Ali PLD 1966 SC 589; Cancellation of bail, Section 497 (5) - Tariq Bashir PLD 1995 SC 34; - Mushtaq Ahmed PLD 1966 SC 126 Bail after conviction, Section 426 Cr.P.C Section 426 is a complete code in itself - Lal Jarain Das 72 1A 121; - Muhammad Ayub PLD 1966 SC 1003 Relevance of Sections 497, 498; - Bihar Khan 1969 SCMR 81; Habeas Corpus Under Section 100 Cr.P.C by Magistrate; 16

17 Under Section 552 Cr.P.C power of the Session Judge; Under Section 491 Cr.P.C power of the High Court; To be read with Article 199 (1) (b) (i) of the Constitution. Judicial Review of Public Actions Comments under Article 199 (1)(b)(i) of the Constitution Double Jeopardy Section 403 Cr.P.C Article 13 of the Constitution; The principle no one shall be twice put in jeopardy for the same offence- Reading Material - Connely (1964) 2 All ER 401; - Alamdar Hussain PLD 1978 SC 121; Judicial Review of Public Actions By Justice (Retd) Fazal Karim, Comments under Article 13, pp