Pre trial proceedings (criminal) by zia ur rehman

1. Pre-trial Proceedings
(Criminal)
By
Zia ur Rehman
Director Instructions, KPJA
1

2. How to set Law into Motion
FIR
Petition u/s 22-A CrPC
Complaint
2

3. Role & Powers of Magistrate
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 Magistrate: A person vested with an
authority to administer criminal law. It
includes the whole body of public
functionaries, whether legislative, judicial,
executive, or administrative.
 Supervisory / Executive
 Sections 54, 61, 63, 76, 86, 86A, 87,88,89, 96-
105, 154,155,155,164,364, 173, 344, 516A
CrPC
 Judicial
 Section 167,174, 176, 202, 241-250, 517,

4. Common Mistakes
4
1. By the Police
2. By the Prosecutor
3. By the Magistrate
4. By the Court

5. Description of Offences in the Code, 1898
5
Investigation Inquiry Trial
•Cognizable Offences & Cognizable Case
•Non-cognizable Offences & Non-cognizable Case

6. Relevant Chapters / Sections of CrPC
Investigation •Chp XIV(Sections154– 173,
•Chp XVI 202 (when by Police)
•Chp XXXIX (Bail, Sec. 496-502),
•Chp XLIII(Disposal of Property, Sec. 516-525)
Inquiry •Chp XXIII, Sections 266 – 336, (Omitted by Law Reforms
Ordinance, 1972)
•Chp XV, Sections 177 – 199-B (Cognizance, Prosecution,
Transfer of cases by Magistrates)
•Chp XVI Section 202
Trial •Chp III (Power of courts),
•XV(Cognizance)
•XVII(Process & Exemption)
•XIX (Charge)
•XX(Magisterial trial)
•XXII(Summary trial)
•XXIV(General provisions of trial)
•XXV(Mode of taking and recording evidence)
• XXVI(Judgment)6

7. Target areas of PTP
1. FIR
2. Arrest & Seizure
3. Custody & Remand
4. Discharge
5. Recovery of Case Property
6. Interim Order in respect of
case property
7. Post arrest transitory bail
8. Re-arrest of a bailed out
accused
9. Identification parade
10. Statement u/s 161 & 164
CrPC
11. Post arrest bail
12. Bounding down witnesses
13. Report u/s 173 CrPC
14. Sending up case to Court of
Sessions
15. Cognizance
16. Plead Guilty & Nolo
contendere
17. Absentia Proceedings
18. Forfeiture & Recovery of
Bonds
19. Recalling & Cancellation of
Bail Order
20. Framing of Charge
21. Statutory Bail
22. Trial Scheduling
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8. First Information Report (FIR)
 When & How to be recorded
 Purpose:
 Supervision of Magistrates;
 Arrest,
 Compliance of section 173 CrPC
 Remedy against refusal by Police
8

9. Procedure in Non-cognizable Offences
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 Report to be recorded
 Permission/ Order by Magistrate
 Report of Investigation

10. Complaint Procedure
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1. How to lodge
2. Inquiry / Investigation
3. Dismissal in Limini
4. Dismissal in default
5. Dismissal on Merit
6. Cognizance / sending up for trial

11. Police Remand
 Section 61 ----- Within 24 hours production of
arrested accused before Magistrate.
 Section 167 ---- Custody to Police, max 15 days
 Section 344 ---- Judicial custody max 15 days in one
go
 2009 SCMR 181
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12. Seizure
 Section 523 , 550 CrPC.
 Duty of Police to Report the matter to Magistrate
forthwith.
12

13. 2009 PLD 382 LAHORE
 Under S.523 , S.H.O. was duty bound to
report seizure of the car to the area
Magistrate without wasting a single
moment so that the Magistrate could make
an appropriate order regarding the
disposal of the car or the delivery of the
seized car to the person entitled to its
possession---
13

14. Case Property Disposal
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1. What is case property
2. How to be dealt with
1. Nature of the property
2. Procedure of disposal
3. Interim order
4. Return
3. Final Disposal
4. Accident Case
1. Sec 95 of the West Pakistan Motor Vehicle Ordinance,
1965
2. 1992 PCRLJ 250
3. PLD 1991 Kar 200

15. 2013 YLR 1746 PESHAWAR

S. 516-A ---Release of case property to a
person on superdari under S. 516-A ,
Cr.P.C.---Scope---Under S.516-A , Cr.P.C.
law permitted release of case property to
a person from whose possession it had
been taken and who claimed to be its
bona fide purchaser.
 Open Transfer Letter
 PLD 1975 Kar 509
 1998 PCRLJ 1089
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16. Discharge:
 Section 63 Special Order of Magistrate
 Section 169 Recommendation for Discharge by I.O
 Section 173(3) Order of Magistrate on such
recommendations of the I.O.
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17. 2012 YLR 472 LAHORE
 After completion of the investigation, the
Investigating Officer had to submit case to
the concerned Magistrate; and the
Magistrate had power to discharge
accused under S.63 of Cr.P.C . in case of
their innocence---In case Magistrate would
find the accused innocent, he would refuse
to take cognizance of the matter
17

18. 2006 PLD 316 SC
 Provisions of S.63 , had prohibited
discharge of an accused person
except under a special order of a
Magistrate---Rule 24.7 of the Police
Rules, 1934, had also prohibited
cancellation of F.I.Rs without the
orders of the Magistrate---
18

19. 2005 MLD 1883 PESHAWAR
 Discharge of an accused was also
governed by S.169, which was at
the conclusion of investigation and
on submission of report under
S.173,Cr.P.C .
19

20. Transit Custody
Sec 86 CrPC
Sec 86-A
PLD 2006 Psh 1
PLD 1995 Psh 118
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21. Dar-ul-Aman / Shelter Home
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 A Sui Juris female
 Alieni Juris
 1990 PCrLJ 1147

22. Identification Parade
 Art 22 QSO:
 Chapter 26, Rule 32, Police Rules, 1934
 Procedure
 Art.22---Identification parade ---Scope---Holding
of Identification parade , was not only a check
against false implication, but was a good piece of
evidence against genuine culprits,
2014 YLR 1412 LAHORE.
22

23. 2014 YLR 584 KARACHI
 Identification parade was not only
delayed by twenty three days of the
incident, but ratio of dummies had
also not been maintained because
four accused had been mixed up with
ten dummies -
Identification parade was of no use
on that score
23

24. Confessional Statement, statement u/s 164
CrPC
Is a confessional
statement under oath?
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25. IF NO why?
& would it vitiate the
evidentiary value of
such statement?
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26. 2007 PLD 202 SUPREME-COURT
 Ss.164 and 364 ,invariably apply to all sorts of statements--
-Confessional statement recorded on oath is violative of
S.5 of oaths Act, 1873, which prohibits administration
of oath to accused person---Rule enacted in S.5 of oaths
Act, 1873, is based on the concept that law does not compel
accused to make confession and he is under no obligation
to speak the truth---If accused willingly and voluntarily
makes a judicial confession, his statement is an evidence---
Administration of oath or affirmation to accused is
considered not based on public policy and is an illegality in
law---Recording of judicial confession on oath is certainly
prohibited under oath Act, 1873-
26

27. 2007 PLD 202 SUPREME-COURT
 --If a Magistrate records statement of
accused in the manner which is prohibited
under the law, he may have committed
illegality in exercise of jurisdiction but if
confessional statement contained true
statement of facts, it may not lose the
status of evidence merely because of
adopting of procedure for recording
confession by Magistrate which is
prohibited under law, unless it is shown
that accused was misled and injustice was
caused to him by adopting such procedure-
--Such procedural illegality would assume
the character of irregularity which may not
render the confession inadmissible.27

28. 2014 PCrLJ 323 PESHAWAR
 --accused, in a murder case, was entrusted to
custody of Magistrate, the Magistrate was required to
clear his Court room from all police officials/officers in
uniform or in plain clothes and accused was to be
provided chair , also disclosing to him that he was in
safe and secured hands of Magistrate and he would
not entertain any fear of police---Magistrate was also
to infuse courage and confidence into accused and
was to provide assurance that in case he did not
make confession, he would not be handed over back
to police--- Simply filling of printed pro forma or
dictating such important matters to typist was not a
faithful obligation under law---Magistrate had shown
irresponsible attitude while dealing with such sensitive
matter………28

29. 2014 MLD 942 PESHAWAR
 Confessional Statement ---Voluntariness---
Proof---Two accused not knowing Urdu language
while Magistrate did not understand Pashto
language---Magistrate recorded confessions
through his steno and such fact was not
mentioned by him in confessional Statement ---
Complete disorder existed in verbal
communication between Magistrate concerned
and accused---Even the stenographer was not
produced as witness---Magistrate failed to satisfy
himself regarding voluntariness of
confessional Statements in circumstances.
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30. Post Arrest Bail
 Section 496 : Bailable offences - bail right
 Section 497: Non bailable offences - bail grace
 Offences not falling in prohibitory clause bail rule ---
1995 PLD SC 34
 The sine qua non for grant of bail is existence of
further inquiry
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31. Further Inquiry
 further inquiry into guilt of
accused means that the question
should be such which has nexus
with the result of the case and
may show that accused is not
guilty of the offence with which he
is charged.
 2012 MLD 599 KARACHI
31

32. Further Inquiry (cont…)
 "Reasonable grounds"---Scope---
Reasonable grounds had to be
grounds which were legally
tenable, admissible in evidence
and appealing to a reasonable
judicial mind as opposed to being
whimsical, arbitrary or
presumptuous.
2014 PLD 760 SUPREME-COURT
32

33. Bounding down the witnesses
Section 173(5) Where the Officer in
charge of a P.S forwards a report, he
shall produce the witnesses except
the public servants, and the Mag shall
bound such witnesses for appearance
before him or some other court on the
date fixed for trial
33

34. Case Cancellation
Can a Magistrate concur with
the recommendation of the
I.O., for cancellation of a case
exclusively triable by the Court
of Sessions?
Chapter 24-7 Police Rules,
1934
 2014 MLD 47634

35. Report u/s 173 CrPC
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 Final
 Chalan
 Untraced
 Cancellation
 Interim (Curbing delay)
 Time Frame

36. Absentia Proceedings
36
 Preservation of Evidence (Sec 512 CrPC)
 Procedure
 Misuse of the provision

37. Plead Guilty
37
 Charge
 Admission
 Show cause
 Disposal/ trial

38. Nolo Contendere
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 What is it?
 How different from plead guilty
 Scope
 PLD 2009 LHR 312

39. Charge
39
 Sec 4 (c ) Precise statement of allegation
 Copies
 Nature
 Heads
 Alteration

40. Acquittal during or before trial
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 Sec 249-A
 Essentials (Hearing, groundless nature, improbability
of convection)
 At any stage of the case
 2003 YLR 2749
 1995 PCrLJ 1257

41. Forfeiture of Bond & Recovery
41
 When & How
 Subject Matter
 Reasons & Procedure of forfeiture
 Status of bail

42. Trial Scheduling
42
 Purpose
 Mechanism
 Role of lawyer and prosecutor

43. 43