CATEGORIES OF CRIMINAL
PROCEDURE
Mian Ali Haider
L.L.B., L.L.M (Cum Laude) U.K.
INTRODUCTION
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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
CATEGORIES OF CRIMINAL
PROCEDURE
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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 nulla poena sine lege
is of paramount importance. “No Penalty without
Law”
 There are two categories of Criminal Procedure:
– Constitutional Criminal Procedure;
– Legislative / Ordinary Criminal Procedure.
CONSTITUTIONAL CRIMINAL
PROCEDURE
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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
CONSTITUTIONAL CRIMINAL
PROCEDURE
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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:
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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
CONSTITUTIONAL CRIMINAL
PROCEDURE
Ziaur Rahman case – PLD 1973 SC 49
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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 Juris Secundum Vol. XVI, para 144
 “the judiciary or judicial power is an independent and equal coordinate 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”
CONSTITUTIONAL CRIMINAL
PROCEDURE
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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.
CONSTITUTIONAL CRIMINAL
PROCEDURE
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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
CONSTITUTION AND LAW.−
AND
OBEDIENCE
TO
– (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.
READING MATERIAL
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CONSTITUTIONAL CRIMINAL PROCEDURE
– Ziaur Rahman 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. Rowshan Bijaya case – PLD 1957 Dacca 241;
– Manzoor Elahi case – PLD 1975 SC 66;
– Christie - (1947) 1All ER 567
ORDINARY/LEGISLATIVE CRIMINAL
PROCEDURE
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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
INVESTIGATION
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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”
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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
INVESTIGATION
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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
INVESTIGATION
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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
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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
INVESTIGATION
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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
INVESTIGATION
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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
INVESTIGATION
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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
READING MATERIAL
Muhammad Bashir vs. SHO – PLD 2007 SC
539
 Manzoor Elahi – PLD 1975 SC 66
 Khawaja Nazir 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
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