Cyber laws online

Category: General Laws

general laws

  • Judicial chemotherapy

    EOPLE are generally stunned either positively surprised, or shocked at the extraordinary exercise of powers by the Supreme Court on grounds of the enforcement of human rights under Article 184(3) of the Constitution. Therefore, what requires examination is: what is happening, and what are its causes and consequences.

    Past reinvented with a difference: The trend of every issue under the sun being decided by the superior courts, or the judicialisation of social, cultural, economic and political matters, is a long-term one in Pakistani judicial history, and began in 1988. But the court of Iftikhar Chaudhry accelerated this judicialisation phenomenon in two radical ways. First, since 2007, there has been a qualitative increase in judicial independence and this has translated into the superior courts gaining greater confidence in deciding more complicated state and societal issues as well as questioning various elites in Pakistan.

    Second, since 2007, there has also been an increase in human rights/ public interest litigation not only in the high court but also directly in the Supreme Court both suo motu cases and direct constitutional petitions. The court of Saqib Nisar has resurrected these past trends of the Chaudhry court ie a powerful Supreme Court, expanding human rights litigation and more issues being directly decided by the apex court under Article 184(3) instead of the high courts. But this past has been reinvented by the current Supreme Court with certain differences.

    The judicial vote is in competition with the peoples vote.

    Firstly, there have been two groups in Pakistans recent judicial history that have not been held judicially accountable the security establishment, especially the intelligence agencies, and the Sharif family. They were untouchables ie groups which no judiciary was able to touch. The taboo in both these cases was broken. The Chaudhry court was accused of being soft on the Sharifs but decided a number of key cases against the security establishment. On the other hand, while the court of Saqib Nisar has been accused of being soft on the security establishment it has decided a number of critical cases against the Sharifs. Saqib Nisars court took swift action against former SSP Rao Anwar, who is allegedly supported by intelligence agencies, and took up the missing persons case, which are signs that it is cautiously trying to hold the security establishment accountable, but the jury is still out on that.

    Secondly, the process of judicially engineering democracy through the qualification/ disqualification mechanism was started by the Iftikhar Chaudhry court but has been accelerated and entrenched by the present court. Post-2017, the judicial experiment to create a puritanical democracy with angelically honest politicians has led to a constant and radical judicial review of democracy and political leadership. In other words, the judicial vote is in competition with the peoples vote.

    Thirdly, the central focus of the Chaudhry court was on political cases especially corruption cases, whereas the main focus of the Saqib Nisar court is on social issues. In other words, the focus has moved from general public interest litigation to specifically social interest litigation with an emphasis on health, water and education.

    Power, rage, revolution: Conspiracy theories about a judicial-military alliance or judicial fame, or the so-called misreading of Article 184(3), cannot explain the extraordinary power of the Supreme Court. Three historical and structural reasons can be identified. Firstly, Chief Justice Saqib Nisar inherited a Supreme Court whose power and reputation had been gravely damaged by controversies surrounding the Anwar Zaheer Jamali court. At that time, the court was at its lowest point in terms of power since 2007. Without public power, the court is just another toothless department of the state. The Supreme Court can acquire public power by taking up people-oriented and media-driven issues. The court of Saqib Nisar is perceived as having resorted to the politically engineering of democracy, social interest litigation and challenging the various elites, to restore the power of the Supreme Court primarily by trying to convert the Supreme Court of Pakistan into the Supreme Court for the people of Pakistan.

    Secondly, watching the proceedings in the chief justices courtroom gives you the feeling that there is constant judicial rage against Pakistans inability to convert itself into a modern and developed country. This sentiment is expressed through controversial public comments and aggressive judicial activism. Ayub used military authoritarianism, Bhutto used political authoritarianism and Chief Justice Saqib Nisar is now seen to be using legal authoritarianism to try to reconstruct state and society. Constitutionalism and judicial activism appear to be a new form of Pakistani nationalism and the Supreme Court proceedings resemble a state of government by the judiciary.

    Thirdly, judicial rage is combined with the belief that the solution to underdevelopment and lack of modernity is the rule of law. This has given rise to the revolution through judicial means theory.

    Hope, chaos, disappointment: The cancer of state collapse, the elite capture of public funds and institutions and the evil of grave human rights violations especially by the intelligence agencies, is so entrenched in Pakistan that neither good judicial intentions nor working 24/7 can rectify such structural problems. Judicial rage and activism can only act as judicial chemotherapy for this entrenched and ever-spreading cancer. Therefore, such application of judicial chemotherapy has three consequences. Firstly, it gives rise to hope regarding the solutions to long-standing problems. Secondly, once judicial interventions are made in countless areas, it give rise to chaos because of these unending interventions, lack of judicial expertise and solutions for many problems and denial of due process rights to parties under Article 184(3) proceedings. Thirdly, even though many will benefit from the tremendous relief granted by the Supreme Court, the overwhelming majority will not, leading to recurring disappointments.

    Therefore, like chemotherapy, judicial activism is essential, has major negative consequences and in most cases, will provide relief but not solutions. But judicial chemotherapy will be welcomed, not because it solves most problems but like medical chemotherapy, it keeps hope alive.

    By Faisal Siddiqi

    The writer is a lawyer.

    Published in Dawn, July 6th, 2018

  • Judicial activism

    JUDICIAL activism is a virtue only when it is accompanied by restraint. In India, as in the US, the supreme court has been notable not for restraint, but for excess.

    The US supreme court is in a pitiable state. There was a time when its rulings were regarded as persuasive authorities of high scholarship, for it was there that the debate on judicial activism versus judicial restraint began and continued for long.

    As far back as 1921, justice Benjamin N. Cardozo gave a lecture on the nature of the judicial process in which he delivered a sound warning. Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgement in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power, they violate the law.

    Misconceptions about the function of a constitution and the proper role of the judiciary in interpreting it lie at the root of the problem. Justice John Marshall Harlan pointed out, The constitution is not a panacea for every blot upon the public welfare; nor should this court, ordained as a judicial body, be thought of as a general haven for reform movements. This constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this nation will realise for all its citizens. This court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority even to satisfy justified impatience with the slow workings of the political process.

    The court is not a substitute for a democratic political process.

    The court is not a substitute for but a supplement to the democratic political process. Executive and legislative excesses can be cured by the courts. But who will cure judicial excess? The only check on our own exercise of power is our self-restraint, chief justice Harlan F. Stone once remarked.

    The debate travelled to Britain, and the foremost advocate of judicial activism, Lord Denning, was rebuked by Lord Diplock (a confirmed judicial activist, at that), who said in 1980: It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation provide their own preferred amendments to statutes which experience of their operation has shown to have had consequence that members of the court before whom the matter comes consider to be injurious to the public interests.

    Each of these strictures is applicable to the excesses committed in the last 30 years to many of the Indian supreme courts decisions. It has prescribed norms for running prisons, mental homes and womens shelters, issued detailed instructions to the government to implement labour laws at construction sites, ordered industries to be restarted with mandatory financial help of state governments, reorganised admissions in medical colleges and laid down their examination schedules, and prescribed hawking zones in metropolitan cities.

    It has gone so far as to disregard the clear words of the constitution as well as the exposition of its prime architect, Dr B.R. Ambedkar. The court asserted in 1993 a right to set up a collegium of judges of the supreme court to appoint judges to itself and the high courts. This collegium has played havoc with the judiciary. Judges choosing judges is the antithesis of democracy, Robert Stevens, a distinguished jurist, remarked.

    In 1991, the court went so far as to order that no criminal case shall be registered under Section 154, Criminal Procedure Code against a judge of the high court, chief justice of high court or judge of the supreme court unless the chief justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the chief justice. If the chief justice is of opinion that it is not a fit case for proceeding under the act, the case shall not be registered. This flowed from its newly invented doctrine, which is opposed to the very basis of a judiciarys role in a democracy.

    This court being the ultimate guardian of rights of people and independence of the judiciary will not deny itself the opportunity to lay down such guidelines. … Almost from the beginning, this court has been a lawmaker, albeit, in [Oliver Wendell] Holmess expression, interstitial lawmaker. Indeed, the courts role today is much more. It is expanding beyond dispute settling and interstitial lawmaking. It is a problem solver in the nebulous areas.

    There was no problem for the court to solve. Judges are as much subject to the law, criminal or civil, as any other citizen. The courts order is an excess of judicial activism. Such excesses occur when the executive is weak. Then the judges grab power.

    By A.G. Noorani

    The writer is an author and lawyer based in Mumbai.

    Published in Dawn, July 7th, 2018

  • General Election 2018 Pakistan, powers of the caretaker government

    General Election 2018 Pakistan, powers of the caretaker government

    For upcoming general election 2018 in Pakistan, a new care take government has been setup for conduct of fair and free election in the country. It is very important that this time legislature has clipped the powers of the caretaker setup as infra:-

    Downloads (Source Election Commission of Pakistan)

    1.Election Act 2017

    2. Election Rules, 2017

    Section 230 of the Election Act 2017 give powers and restrictions to the caretaker government as under:-

    (1) A caretaker Government
    shall
    (a) perform its functions to attend to day-to-day matters which are
    necessary to run the affairs of the Government;
    (b) assist the Commission to hold elections in accordance with law;
    (c) restrict itself to activities that are of routine, non-controversial and
    urgent, in the public interest and reversible by the future
    Government elected after the elections; and
    (d) be impartial to every person and political party.
    (2) The caretaker Government shall not
    (a) take major policy decisions except on urgent matters;
    PART I] THE GAZETTE OF PAKISTAN, EXTRA., OCTOBER 2, 2017 1547
    (b) take any decision or make a policy that may have effect or pre-empt
    the exercise of authority by the future elected Government;
    (c) enter into major contract or undertaking if it is detrimental to public
    interest;
    (d) enter into major international negotiation with any foreign country
    or international agency or sign or ratify any international binding
    instrument except in an exceptional case;
    (e) make promotions or major appointments of public officials but may
    make acting or short term appointments in public interest;
    (f) transfer public officials unless it is considered expedient and after
    approval of the Commission; and
    (g) attempt to influence the elections or do or cause to be done
    anything which may, in any manner, influence or adversely affect
    the free and fair elections.
    (3) The Prime Minister, Chief Minister or a Minister or any other
    members of a Caretaker Governments shall, within three days from the date of
    assumption of office, submit to the Commission a statement of assets and
    liabilities including assets and liabilities of his spouse and dependent children as
    on the preceding 30th day of June on Form B and the Commission shall publish
    the statement of assets and liabilities in the official Gazette.
    (4) In this section, ?caretaker Government means the caretaker Federal
    Government or a caretaker Provincial Government.

  • Issue of Data protection and privacy in Pakistan

    by Usama Khilji

    WITH the fast paced advancements in technology and the increasing pervasiveness of information and community technologies (ICTs) in everyday life, our personal information is accessible to multiple parties including corporations, governments, hackers, stalkers and other third parties.

    We have now entered what Klaus Schwab calls the fourth industrial revolution, which, he argues, is characterised by a fusion of technologies that is blurring the lines between the physical, digital, and biological spheres. This is causing a seismic shift in the way we live. Whereas there are multiple advantages to this that are being embraced and celebrated, like anything else, it comes with associated risks, and there is a need for law and policy to respond to these needs adequately in order to protect our personal data that is now becoming more accessible than ever before.

    The role of data today when is it used?

    We give up a certain level of privacy each day to email and social media companies when we use the internet to connect and communicate with people or each time we search for something on the internet; when we use ride-hailing applications to commute as our location and movement is constantly tracked; to the government when our personal information is stored in national databases; and to banks that have access to our financial habits, and increasingly so with reliance on card and digital payments. In short, with more efficient communication, access to information, movement, governance, and financial activity, our privacy is compromised when our personal data is stored by companies and governments, as well as by individuals that may attempt unauthorised access to this information.

    Our privacy is compromised when our personal data is stored by companies and governments.

    What are the risks?

    This is why data is now known as the most valuable resource replacing oil and gold. Data breaches are not uncommon in Pakistan. The National Database and Registration Authority was named by WikiLeaks in June 2017 in a case where data of Pakistani citizens was shared with the US National Security Agency and the British Government Communications Headquarters, though Nadra has denied this claim. The Nadra website was also reportedly hacked in 2012, 2013, and 2015 by hackers based abroad.

    Hacking of ATM machines in large Pakistani cities has also been reported this month, with customers losing thousands of rupees, and this breach has also caused losses to the banks. Further, telecom companies in Pakistan have been known to sell user data of subscribers to third parties, something that is even stated in the privacy policies of some companies. This is why most of us receive text messages advertising a wide variety of products, often time even unrelated to our consumption patterns.

    Small businesses and especially technology-related start-ups are in need of data protection laws because they are susceptible to hacking and data breaches, and require legal relief in case hackers violate or steal their ideas and data.

    Existing laws

    In the existing legal framework of Pakistan, the right to privacy falls under Article 14 (1) of the Constitution, which states that the dignity of man, and subject to law, the privacy of home, shall be inviolable. However, the application of this right in the digital realm is yet to be seen. Only one section of the Electronic Transaction Ordinance, 2002, Article 43 (2) (e) recommends that the federal government may make regulations to provide for privacy and protection of data of subscribers but these are yet to be made. The Prevention of Electronic Crimes Act, 2016, provides for telecom and internet service providers to retain data for at least 90 days, but does not include any provisions that protect citizens data or privacy. A privacy commission still does not exist in Pakistan, though the IT ministry is on record saying that a draft data protection law is under way. It remains to be seen if key stakeholders including citizen groups are consulted in the drafting of this important law.

    International examples

    We can look to the example of the United Kingdom and India when it comes to data protection and privacy laws. The British government recently introduced a new draft data protection bill which will replace the 1998 law, and some key features include extended the right to be forgotten on the internet to the right to innocence whereby citizens can request social media sites to remove any content they posted before the age of 18. Further, the bill proposes tougher penalties on companies for data breaches, as well as a requirement by businesses to inform the UK information commissioners office about any breach within 72 hours. In India, the Supreme Court earlier this year ruled to recognise the right to privacy as a fundamental right linked to liberty and dignity of citizens, in a case where the constitutional validity of Indias biometric identity scheme Aadhaar was challenged.

    What does a good data protection law look like?

    In light of these transformative changes in the way we live and interact with one another, it is important for us to realise three important things. First, that the realm of what is private and should be protected has drastically expanded with technological advancements, and hence individual as well as legal efforts also need to expand to cover emerging aspects. Second, that the right to privacy is not a right in isolation but in fact intrinsically linked to other rights such as the freedom of speech and right to life, and this needs to be considered when any new laws and policies are promulgated. Third, the discourse on privacy itself has to be developed progressively so that corporate and state entities are mindful of privacy concerns when dealing with data, and citizens are equipped to claim justice in case of a breach.

    It is high time privacy of our data was taken seriously so as to protect our digital as well as physical footprint, seeing how closely intertwined the two are becoming, not only for individuals but for small businesses and large corporations as well.

    The writer is an activist and researcher, and director of Bolo Bhi, an advocacy forum for digital rights.

    Twitter: @UsamaKhilji

    www.usamakhilji.com

    Published in Dawn, December 19th, 2017

  • Judicial Activism in Pakistan

    by Dr Noman Ahmed

    THIS was a busy year for our learned judges. The range of their legal engagements has included the usual disputes and cases related to the conduct of politicians, infrastructural planning and delivery of water and sanitation services. While many would consider these proceedings as normal in the administration of justice, some outcomes have seen important policy and operational changes.

    The country finally carried out a census after 19 years due to a Supreme Court order. In a constitutional petition related to clean drinking water and a safe environment for the people of Sindh, the court imposed tough conditions upon the Sindh government, while sessions court officials in the province went around checking educational and healthcare institutions.

    The verdict in the case of the Orange Line in Lahore allowed the Punjab government to carry on with the project, albeit with strict safeguards.

    The Islamabad High Court and the Supreme Court also intervened in the matter of the Faizabad sit-in.

    Prime institutions have lost credence in society.

    Where people doubt the honesty of purpose of the executive, the courts have emerged as monitors and judicial observers in the public interest. The judiciary even assumes the role of policymaking in matters traditionally dealt with by the executive matters that have a direct bearing on the welfare of the common people. The declining ability of the executive to deliver on basic matters of governance is one of the core reasons for such enhanced judicial roles.

    Is this a desirable approach towards governing the country and managing complex matters related to administration? How can the equation be reversed in favour of the executive again?

    Much of the rot in the service delivery apparatus is by design, not by default. Almost every provincial government has made the regulatory apparatus under its control toothless. A Supreme Court order has imposed restrictions on the construction of multi-storeyed buildings in Karachi, due to the limited availability of water. This has caused anxiety amongst the ranks of builders and contractors, who are still pursuing the matter in court. The provision of adequate urban services, regulation, monitoring and control of construction practices is an important area of public management.

    The existence of legally valid and technically appropriate building solutions for various facilities is a prerequisite to healthy lifestyles. In reality, private interest with the active support of the various agencies and tiers of government facilitate illegal development. Acting on petitions and even exercising suo motu jurisdiction, the superior courts have taken action on several occasions, apparently with the intention of setting technically and legally correct precedents. Sadly, the reverse has continued to happen. It is neither the responsibility nor mandate of the courts to micromanage affairs related to urban service delivery.

    The political will to correct the ills in the executive machinery is simply non-existent. In many cases, the interest of the political leadership coincides with the conduct of corrupt officers/functionaries. Many of these officials become very successful in service cadres. Meanwhile, the interference of the political class continues. The present IG of Sindh Police was working well to stem the rot in his department. Obviously, he ruffled the feathers of those in power, who had him sidelined. He was finally saved from abrupt transfers by the Sindh High Court, though his sphere of command and performance capacity has been greatly clipped by the political bosses.

    The message received by his subordinates is quite clear. The staff tends to spend its energies on following the directives of political bosses. In return, it receives favours that even the judiciary cannot straighten out. The result is the breakdown of the service structure, little motivation amongst honest cadres and the overall collapse of institutional capacity. No wonder prime institutions such as the police have completely lost credence in society.

    The backbone of the executive used to be the officer cadres. Extraordinarily strict and demanding procedures were adopted to fill these slots. The bureaucrats of yore managed very challenging assignments. There used to be a clear distinction between the political leadership and bureaucracy, and the judiciary used to work closely with the bureaucracy. The political process allowed coexistence. The objective was to facilitate the common folk. The effectiveness of the staff/officers lay in their unstinted attention to their respective tasks not on pleasing the higher bosses.

    Unfortunately, the deep (and probably irreversible) penetration of political interference has eroded the capacity and moral fibre of working bureaucracies. Much improvement can be achieved by ring-fencing the mandate, capacity building and empowering the cadres of the civil service. Some assistance from the judiciary could be useful in this respect.

    The writer is a professor and acting dean, Faculty of Architecture and Management Sciences, NED University, Karachi.

    Published in Dawn, December 21st, 2017

  • Summary Trial by special magistrate price control

    The Government of the Punjab appoints Special Magistrates under S. 14A Cr.P.C for the trial of offences on price control under any Provincial law or Federal law.

    S.11 of PRICE CONTROL AND PREVENTION OF PROFITEERING AND HOARDING ACT, 1977 provides for the trial of offences summarily as per provision of 262 to 265 Cr.P.C). It has the word ‘May’ which is the discretion of the presiding officer. The presiding officer can continue as regular trial. If presiding officer decide to conduct the trial summarily then following provisions of summary trial as per Cr.P.C. shall be applied.The following provisions of Criminal Procedure Code 1898 apply to summary trial by the special magistrate price control:-

    Chapter XXII of summary trials s.260 to 265 of Cr.PC 1898.

    a) S. 191 (2 Cr L Jour 187)

    b) S. 243 (AIR 1951 All 410)

    c) S. 255 (ILR (1950) Cal 85)

    d) S. 257 (9 Crim L Jour 583)

    e) S. 342 (AIR 1940 Bom 314)

    Cognizance of the court

    First of all the court will take cognizance of the offence through u/s 173 of Cr.P.C. or through a complaint u/s 190 of Cr.P.C.

    In case Magistrate himself taking the cognizance under section 190 cr.p.c, he must follow the instruction contains in section 191 crpc before commencement of trial.

    Process serving

    Process is served to the accused. (S 204 cr.pc)

    Show cause/briefing the accused about alleged offence

    On appearance of the accused he be show caused as to why not he should be convicted under the concerned law for his committing of the offence(a brief of the alleged offence committed by the accused) S.263 Cr.P.C.

    Formal charge sheet is not mandatory.

    “S. 263 Cr.P.C dispenses with the recording of evidence and the drawing up of a formal charge where there is no appeal. From a joint reading of the above sections it is clear that although it is not obligatory to frame a formal charge, it is necessary to do so the enable the accused to understand what the matter is upon which he has to show-cause, and then to meet the case put up against him.” (1993 P.Cr.L.J. 547, 1991 P.Cr.L.J. 1012)

    “Failure to frame charge in summary trial will not vitiate proceedings.”

    (PLD 1954 Dacca 66)

    Conviction on confession by the accused

    164, S. 364, S. 533 of Cr.P.C is relevant provisions of confession.

    A.37 to 43 of Qanoon e Shahadat Order 1984.

    Reference Confessions and statements of accused persons, Chapter 13, Vol. III

    of High Court Rules & Orders (criminal) (vol III, IV, V, VI)

    U/s 364 Magistrate shall certify that examination was taken in his presence and hearing and that the record has a full and true account of the statement made by the accused.

    On admission of truth of accusation, the accused be show caused u/s 243 why he should not be convicted. After recording his statement/answer under above show cause given to the accused, the court will convict the accused so.

    “If the accused person pleads guilty the mandatory, provision of S. 243 and S 263 Cr.P.C. be followed.” (1984 P.Cr.L.J.)

    Recording of substance of the evidence if the accused pleaded not guilty

    In case the accused pleaded not guilty,substance of the evidence be record as per S.264 Cr.P.C.

    “The substance of every separate deposition not be recorded, but only the substance of the evidence as a whole need be given.” (AIR 1929 Oudh 151)

    “The expression “substance of the evidence” implies a judicious selection or precise of the part of the evidence which is really material. The question whether the substance of the evidence has been sufficiently recorded in a particular case depends upon aconsideration of the nature and relevance of the various pieces of evidence give in the case having regard to the issues raised or involved in the case.” (AIR 1948 Sind 59)

    Statement u/s 342 of the accused

    Then the court will record thestatement of accused u/s 342 Cr.P.C. If required substances of the evidence be recorded.

    Judgment

    In the last, the court would announce the judgment.

    Maintenance of record

    There are two factors in maintenance of records in summary trial cases. In case of non appeal-able cases, no record of evidence of the witnesses or formal charge. Just following information be recorded:-

    a) the serial number

    b) the date of the commission of the offence

    c) the date of the report or complaint

    d) the name of the complainant

    e) the name, parentage, and residence of the accused

    f) the offence complained of and the offence proved

    g) the pleas of the accused and his examination

    h) the finding and in case of conviction a brief statement of the reason

    i) the judgment

    j) the date oforder/judgment

    In case of appeal-able cases, in addition to the above substance of evidence of both sides, statement u/s 342 of the accused shall also be recorded.

    NON APPEAL ABLECASES IN SUMMARY TRIAL

    Followings are the non appealable cases in summary trial.

    1. Where an accused pleaded guilty and has been convicted on such please. S. 412 Cr.P.C.
    2. Conviction of a sentence of fine not exceeding two hundred rupees only.
    3. conviction under law on price control in which Special Magistrate Price Control appointed u/s 14-A passes a sentence of fine not exceeding five thousand rupees under Price control and prevention of profiteering and hoarding act, 1977 or under any other Federal law or provincial law on the price control.
    4. a sentence passed in default of payment of fine when no substantive sentence or imprisonment has also been passed.

  • How to conduct a summary trial

    The following provisions of Criminal Procedure Code 1898 apply to summary trial equally with ordinary trials:-

    Chapter XXII of summary trials s.260 to 265 of Cr.PC 1898.

    a) S. 191 (2 Cr L Jour 187)

    b) S. 243 (AIR 1951 All 410)

    c) S. 255 (ILR (1950) Cal 85)

    d) S. 257 (9 Crim L Jour 583)

    e) S. 342 (AIR 1940 Bom 314)

    Cognizance of the court

    First of all the court will take cognizance of the offence through u/s 173 of Cr.P.C. or through a complaint u/s 190 of Cr.P.C.

    Process serving

    Process is served to the accused. (S 204 cr.pc)

    Show cause/briefing the accused about alleged offence

    On appearance of the accused he be show caused as to why not he should be convicted under the concerned law for his committing of the offence(a brief of the alleged offence committed by the accused) S.263 Cr.P.C.

    Formal charge sheet is not mandatory.

    “S. 263 Cr.P.C dispenses with the recording of evidence and the drawing up of a formal charge where there is no appeal. From a joint reading of the above sections it is clear that although it is not obligatory to frame a formal charge, it is necessary to do so the enable the accused to understand what the matter is upon which he has to show-cause, and then to meet the case put up against him.” (1993 P.Cr.L.J. 547, 1991 P.Cr.L.J. 1012)

    “Failure to frame charge in summary trial will not vitiate proceedings.”

    (PLD 1954 Dacca 66)

    Conviction on confession by the accused

    164, S. 364, S. 533 of Cr.P.C is relevant provisions of confession.

    A.37 to 43 of Qanoon e Shahadat Order 1984.

    Reference Confessions and statements of accused persons, Chapter 13, Vol. III

    of High Court Rules & Orders (criminal) (vol III, IV, V, VI)

    U/s 364 Magistrate shall certify that examination was taken in his presence and hearing and that the record has a full and true account of the statement made by the accused.

    On admission of truth of accusation, the accused be show caused u/s 243 why he should not be convicted. After recording his statement/answer under above show cause given to the accused, the court will convict the accused so.

    “If the accused person pleads guilty the mandatory, provision of S. 243 and S 263 Cr.P.C. be followed.” (1984 P.Cr.L.J.)

    Recording of substance of the evidence if the accused pleaded not guilty

    In case the accused pleaded not guilty,substance of the evidence be record as per S.264 Cr.P.C.

    “The substance of every separate deposition not be recorded, but only the substance of the evidence as a whole need be given.” (AIR 1929 Oudh 151)

    “The expression “substance of the evidence” implies a judicious selection or precise of the part of the evidence which is really material. The question whether the substance of the evidence has been sufficiently recorded in a particular case depends upon aconsideration of the nature and relevance of the various pieces of evidence give in the case having regard to the issues raised or involved in the case.” (AIR 1948 Sind 59)

    Statement u/s 342 of the accused

    Then the court will record thestatement of accused u/s 342 Cr.P.C. If required substances of the evidence be recorded.

    Judgment

    In the last, the court would announce the judgment.

    Maintenance of record

    There are two factors in maintenance of records in summary trial cases. In case of non appeal-able cases, no record of evidence of the witnesses or formal charge. Just following information be recorded:-

    a) the serial number

    b) the date of the commission of the offence

    c) the date of the report or complaint

    d) the name of the complainant

    e) the name, parentage, and residence of the accused

    f) the offence complained of and the offence proved

    g) the pleas of the accused and his examination

    h) the finding and in case of conviction a brief statement of the reason

    i) the judgment

    j) the date oforder/judgment

    In case of appeal-able cases, in addition to the above substance of evidence of both sides, statement u/s 342 of the accused shall also be recorded.

    NON APPEAL ABLECASES IN SUMMARY TRIAL

    Followings are the non appealable cases in summary trial.

    1. Where an accused pleaded guilty and has been convicted on such please. S. 412 Cr.P.C.
    2. Conviction of a sentence of fine not exceeding two hundred rupees only.
    3. conviction under law on price control in which Special Magistrate Price Control appointed u/s 14-A passes a sentence of fine not exceeding five thousand rupees under Price control and prevention of profiteering and hoarding act, 1977 or under any other Federal law or provincial law on the price control.
    4. a sentence passed in default of payment of fine when no substantive sentence or imprisonment has also been passed.

  • How to conduct a criminal trial

    This e-book is a synopsis for conducting a criminal trial. This small e-book in .pdf format is very handy and useful law students and readers. Click below to download or read.

    thumbnail of criminal trial

  • Role of Judicial Magistrate in Investigation

    The British rulers established the very structure of the criminal justice system (CJS) in sub continent around the Indian Penal Code, the Code of Criminal Procedure (Cr.P.C) and the Evidence Act. This legislation was the basic of the CJS of that time in Indian Sub Continent. It was an effective system which remained in force more than 100 years. The continuation the this SJS in South Asian countries is the prove of its efficacy.

    After independence, the same CJS was adopted by legislature with some amendments. Although the legislature has not updated it as per requirement of the changing situations of the country which has resulted in problems facing all tiers of the society as well institutions i.e police, judiciary and executive. But still CJS system in vogue in Pakistan is breathing. It has played very pivotal role in administration of justice to the society.

    The backbone of present SJS is Criminal Procedure Code, 1898, Pakistan Penal Code 1860, Qanoon-e-Shahadat Order, 1984 which provides the effective base for CJS. For instance, Chapter XIV of the CrPc defines the effective role of magistrate. For the investigation of a non-cognizable offence permission of a magistrate is required under section 155 CrPc. Section 156 (3) describes that magistrate empowered under section 190 can order a police officer to investigate a cognizable offence. As per section 157 police officer is bound to send tot he magistrate concerned a report of any information regarding the commission of a cognizable offence. Also under section 158, the investigation officer has to send the reports of every case case investigated by him under section 157 to the magistrate for his perusal.

    Section 159 empowers the magistrate to order an investigation and if required, either proceed himself or depute any other magistrate junior to him for preliminary inquiry. Magistrate allow physical remand of the accused as per request of the investigation officer. It is again magistrate who send the accused for judicial remand. The closing of a case against an accused under section 169 is subject to the review by the magistrate. During investigation, magistrate record statement related to a crime or confession under section 164 which has lasting effects on administration of justice.

    Before 1996, the executive magistrates played their effective role by implementing the above said sections of the law as they are truly field officers. They were public functionaries and remain in touch with the people of locality. Executive magistrate being the collector sub division knew in depth every happening in rural areas through the institute of Numberdar (Village Headman). Moreover, he has freedom of movement and can inquire the matter by himself going to police stations. He effectively used the above said sections of CrPc which resulted in an effective CJS at grass root level.

    The present situation can be improved by amending the relevant sections of the criminal justice system’s laws as per requirements of the society and situation prevailing. An effective coordination of judiciary, executive and police will make the present CJS a success story.