CATEGORIES OF CRIMINAL PROCEDURE

1. CATEGORIES OF CRIMINAL PROCEDURE Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.

2. INTRODUCTION • Criminal procedure is generally understood as that body of law governing the legal treatment of a criminal deed from the offence until decision (acquittal or conviction) • Thus defined rules describe the process, by which the guilt of a possible wrongdoer may be legitimately established and a criminal sanction attributed. • These rules encompass, inter alia, the determination of factual evidence (the facts of the case in the light of a possible responsibility of a wrongdoer), • the proper interpretation of the substantive law applicable to this case, and the sentencing decision, which is the determination of the sanction fitting both the crime and the criminal in the light of requirements of deterrence

3. CATEGORIES OF CRIMINAL PROCEDURE • One may characterize the Pakistani law as being more concerned with procedural guaranties than with substantive ones; • the latter playing a key role within the Common legal system, where the principle of nullapoena sine lege is of paramount importance. “No Penalty without Law” • There are two categories of Criminal Procedure: • Constitutional Criminal Procedure; • Legislative / Ordinary Criminal Procedure.

4. CONSTITUTIONAL CRIMINAL PROCEDURE • Whatever the subject of a legal study, the starting point must be the Constitution namely the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), that being the supreme law of the country for the reason; • It is the source from which all governmental forums, including the executive forum to prosecute, investigate etc. criminal offences, the legislative power to create offences, to provide for their punishment, and to establish the procedure for their trial, and the judicial power to try the criminal offences and furnish the offences, emanate; • It provides, particularly by guaranteeing some of the important human fundamental rights, a constitutional model of a fair criminal procedure – a mini-code of criminal procedure

5. CONSTITUTIONAL CRIMINAL PROCEDURE • Relevant provisions of the Constitution of Pakistan, relating to criminal procedure, as contained in Part II, Chapter 1 • Relevant provisions of the U.S. Constitution, relating to criminal procedure, particularly • The Fourth Amendment, ensuring the right to privacy, including the right against unreasonable searches and seizure of persons and things; • The Fifth Amendment, guaranteeing:- • the right to a speedy and public trial; • the right to be informed of the nature and cause of the accusation; • the right to be confronted with the witnesses against him; • the right to have compulsory process for obtaining witnesses in his favour; and • the right to have the assistance of counsel for his defense

6. CONSTITUTIONAL CRIMINAL PROCEDURE • ZiaurRahman case – PLD 1973 SC 49 • What is constitution? • What are the benefits of the written or unwritten constitution? • Constitution defined by K.C. • Constitution Judiciary? • Difference between “Judicial Power” & “Jurisdiction of Court” • In a system where there is trichotomy of power, then ex necessitate rai from the very nature of things the judicial power must be vested in judiciary • As defined in Corpus JurisSecundumVol. XVI, para 144 • “the judiciary or judicial power is an independent and equal co-ordinate branch of government, and is that branch thereof which is intended to interpret, construe, and apply the law, or that department of government which is charged with the declaration of what law is, and its construction, so far it is written law”

7. CONSTITUTIONAL CRIMINAL PROCEDURE • JURISDICTION • Apart from setting up the state organs Constitutions does great many other things such as; • The subject in which the power is going to be exercised • The manner of exercising the power • Original, appellate, writ, trial, constitutional • Demarcating the subjects & territories • It expresses the particular res or subject matter over which the judicial powers to be exercised and the manner of its exercise. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject matter in a given case and also the authority to exercise judicial powers vested in the court.

8. CONSTITUTIONAL CRIMINAL PROCEDURE • Criminal Procedure as an element in Rule of Law • 4.RIGHT OF INDIVIDUALS TO BE DEALT WITH IN ACCORDANCE WITH LAW, ETC.− • (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. • (2) In particular- • (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; • (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and • (c) no person shall be compelled to do that which the law does not require him to do. • 5.LOYALTY TO STATE AND OBEDIENCE TO CONSTITUTION AND LAW.− • (1) Loyalty to the State is the basic duty of every citizen. • (2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.

9. READING MATERIAL • CONSTITUTIONAL CRIMINAL PROCEDURE • ZiaurRahman case – PLD 1973 SC 49; • Muhammad Mubeen-us-Salam v Federation – PLD 2006 SC 602 (excepts four pages 665-670 only) • Abdul Malik v State – PLD 2006 SC 365; • Ms. RowshanBijaya case – PLD 1957 Dacca 241; • ManzoorElahi case – PLD 1975 SC 66; • Christie - (1947) 1All ER 567

10. ORDINARY/LEGISLATIVE CRIMINAL PROCEDURE • Relationship between Criminal Law and Criminal Procedure. • Functions of Criminal Procedure. • Stages of Criminal procedure: • Investigation and Inquiry • Prosecution. • Trial • Stakeholders in the Criminal Justice process: • Police • Prosecutor • Defense Counsel • Courts

11. INVESTIGATION • Its definition – Section 4 (l) Cr.P.C • “Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf” • Cognizable & non Cognizable • FIR u/s 154 of Cr.P.C. • Who can lodge the FIR? • Officer Incharge of police station 4(p) • Power u/s 551 • “Police officers superior in rank to an officer incharge of a police station may exercise the same powers, throughout the local area to which they are appointed, as-may-be exercised by such officer within the limits of his station

12. INVESTIGATION • POWERS OF POLICE OFFICERS • Are derived from law; and • Subject to the Constitution and Law • power to arrest and detain – Sections 46, 54-57 Cr.P.C; • power to require the attendance of any person – Section 160 Cr.P.C • power to enter and search – Section 47, 49, 165 Cr.P.C; • power to search person – Section 51 Cr.P.C; • power to seize property • Powers of Police Officers are great and caution is needed in their uses

13. INVESTIGATION • Safeguard against misuse of Police powers • Articles 9, 10, 13, 14 and 24 of the Constitution; • Sections 60, 61, 163 Cr.P.C; • Statements of witness recorded during Investigation their limited use – Sections 161, 162 Cr.P.C; • Maintaining a police diary and its use – Section 172 Cr.P.C • Remand to custody during investigation • When investigation cannot be completed within the prescribed time – Sections 61 and 167 Cr.P.C; • Magistrate’s power is – • To remand to police custody, or • To remand to judicial custody

14. INVESTIGATION • CULMINATION OF INVESTIGATION; • Report under Section 173 Cr.P.C; commonly known as Challan • May recommend cancellation of case; or • It is a charge sheet against the accused named in the Challan • Opinion of the police under Section 173 is not binding on Court; • So that the Magistrate may not cancel the case; and • May summon the accused for trial • Cancellation of a case is administrative phase of criminal procedure: • is not acquittal of the accused: • the Magistrate canceling may subsequently take cognizance of the case on complaint

15. INVESTIGATION • INVESTIGATION IS ADMINISTRATIVE PHASE OF CRIMINAL PROCEDURE • as distinguished from trial; and • entitles the suspect to fairness but not as much as during trial, e.g. cross examination of witness and hearing before Challan. • A Magistrate during investigation may: • a) sometimes act in administrative capacity; and • b) sometimes in judicial capacity • For example, a Magistrate granting or refusing remand to police custody perform a judicial function, while canceling a case, he performs and administrative function

16. INVESTIGATION • CONTROL OF INVESTIGATION BY COURTS; • Relationship between Court and Police • Control of investigation by Court • “Just as it is essential that every one accused of a crime should have free as to court of justice so that he may be duly acquitted if not found guilty with which he is charged. So it is of utmost importance that judiciary should not interfere with the police in matters which are within their province and into which law imposes upon them the duty of enquiry……the functions of the police and judiciary and complementary not overlapping” • u/s 491 • Because charge is alleged

17. READING MATERIAL • Muhammad Bashir vs. SHO – PLD 2007 SC 539 • ManzoorElahi – PLD 1975 SC 66 • KhawajaNazir Ahmed – AIR 1945 PC 18; • Shehnaz Begum – PLD 1971 SC 677 • Malik Shaukat Ali Dogar – PLD 1994 SC 281 • Brig Imtiaz Ahmed – 1994 SCMR 2142