Criminal trial Evidence Re-Summoning of witness for further cross examination. Disallowed

Salient points

• Criminal trial
• Evidence
• Re-Summoning of witness for further cross examination.
• Disallowed

Code of Criminal Procedure

S. 540---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Penal Code (XLV of 1860), Ss. 324, 337-F(iv) & 452---Further cross examination---Re-summoning of prosecution witness--- On complaint of petitioner case under offences of attempt to Qatl-i-amd, Ghayr-Jaifah Mudihah and house-tresspass, was registered against respondent/ accused---Lower Appellate Court in exercise of revisional jurisdiction re-summoned two prosecution witnesses for further cross examination by respondent/accused---Validity---Purpose of S. 540 Cr.P.C. was to provide jurisdiction to Court to summon a witness or recall a witness for re-examination only for just adjudication of the matter---Recalling of witness for further cross examination was not provided in S. 540, Cr.P.C.---Examination, cross-examination and re-examination of witness was also provided under Arts. 132 & 133 of Qanun-e-Shahadat, 1984---Calling a witness again for cross examination was not permissible under law---High Court set aside order passed by Lower Appellate Court as same was not within the purport of law--- Constitutional petition was allowed, in circumstances

2021 PCrLJ 1558     

Bail in Bailable offence - Principles

Bail in Bailable offence - Principles

I. In case of bailable offence the accused has indefeasible right of bail.  

II. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished. 

III.In bailable offence the grant of bail is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace. 

IV The Court is left with no option but to admit the accused to bail in a bailable offence.   

Denial of statutory right to a litigant by the Courts is called injustice. When such refusal relates to liberty of a person having right of bail in bailable offences, it is called gross injustice that means to treat someone in an unfair way.

Plain reading of section 496 of the Code makes it clear that powers under this provision can be exercised by a Court only for a person other than a person accused of a non bailable offence. Whereas perusal of section 497 also leaves no ambiguity that these powers are to be exercised in case of non bailable offence. However, powers under section 498 are beyond any such restrictions of bailable or non bailable offence as it says that “the High Court or Court of Session may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail. Words “in any case” used in this provision makes no difficulty to understand that a person irrespective of the fact that he is the accused of a bailable or non bailable offence can be admitted to pre-arrest bail.

When read all sections (496, 497 and 498) together there remains no uncertainty that while deciding an application, may it be for bail after arrest or pre-arrest, in bailable offence the Court is left with no discretion to refuse the concession to an accused as in such eventuality the grant of bail is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace.     

Under the Code of Criminal Procedure 1898 (Act V of 1898) {Code} for the purpose of bail the offences are divided into two categories termed as “Bailable offence” and “Non-bailable offence”. These are defined under section 4(b).

Above division of making the offences bailable or non bailable was not something new in the Code. In England until the 13th century, as the regional representative of the crown, the sheriff possessed sovereign authority to release or hold criminals. The Statute of Westminster in 1275 eliminated the discretion of sheriffs to declare that which crimes would be bailable because the bailable and non-bailable offences were specifically listed. The sheriff was left with the only authority of deciding the amount of bail. 

In America, when the colonies became independent in 1776, they enacted specific bail laws. Section 9 of Virginia's Constitution in 1776 declared simply that "excessive bail ought not to be required”. This constitutional provision was supplemented in 1785 with a statute which eliminated judges’ discretion to grant bail by specifying that those shall be admitted to bail who are apprehended for any crime not punishable in life or limb. But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail. Thus, the Virginia laws closely paralleled the English system and statutes defined which offenses were bailable.

A Judge is to follow the laws of the land and principles settled by the superior Courts. The Courts have only to go behind the principle "Let justice be done though the heavens may fall”. Emotion is a fundamental aspect of human existence. In normal healthy people, feelings about options exert a powerful influence on choice. Intuition and anecdote suggest that people react more positively toward others whom they like or for whom they feel sympathy than toward others whom they dislike or for whom they feel disgust. Unlike Judges are expected to put their emotional reactions to litigants aside. United States Circuit Judge Jerome Frank asserted that “Mr. Prejudice and Miss. Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury. Judges are supposed to make reasoned decisions based on the facts and the law rather than on the basis of sympathy or empathy for litigants . Emotion, sympathy, empathy and kindness are aliens during the dispensation of justice. This principle signifies the belief that justice must be realized regardless of consequences.

2021 PCrLJ 1300

Person required in more than one casesArrestProcedureGuidelines

Key points

• Person required in more than one criminal cases
• How to arrest such person
• Guidelines in detail

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 54 & 167‑‑‑Scope and object of Ss.54 & 167, Cr.P.C.--‑

Person required in more than one cases‑‑‑Arrest‑‑‑Procedure‑‑‑Guidelines.

No doubt, the Police Officer can arrest a person where a reasonable suspicion exists of his having been concerned in any cognizable offence but power given to the Police Officer under section 54, Cr.P.C. being an encroachment on the liberty of a citizen is not unlimited. It is subject to the condition stated therein. An arrest purporting to be under this section would be illegal unless the circumstances specified in the various clauses of the section exist. This section does not give free licence to a Police Officer to arrest anybody he may like. In order to act under this section, there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. An arrest of a citizen in a reckless disregard of the conditions imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relevant rules. Similarly, section 167, Cr.P.C. does not visualize successive and repeated arrests of a person required in more than one cases. An accused required in more than one criminal cases when arrested will be deemed to have been arrested in all the cases registered against him. There is no legal bar for interrogating an accused person with regard to the allegations against him in another case. It is rather desirable that when a person required or accused in more than one cases or where more than one F.I.Rs. are registered against him is arrested and remanded to physical custody, then he should be interrogated about the allegations against him in all the cases. Instead of acting strictly in accordance with law, the police is following the illegal practice of showing the arrest of the person in one case and on the expiry of remand it again arrests him in another case. It is commonly known that in selected case, police would arrest the accused on his release on bail in the first case. It is nowhere stated in the Criminal Procedure Code and Police Rules that a person required in more than one case when arrested will be deemed to have been arrested in one case and he cannot be arrested simultaneously in more than one case. Section 167, Cr.P.C. simply says that whenever a person is arrested or detained in custody, the Magistrate may authorise his detention in such custody for a term not exceeding fifteen days in the whole. The section does not talk of ?case? it talks of custody only. The longest period for which an accused can be ordered to be detained continuously in police custody by one or more such orders, is only fifteen days. So, the detention of the accused person required in more than one cases already registered against him, for more than fifteen days would be illegal. It would be quite in accordance with law that when a person required in more than one criminal cases of the same police station is arrested in one case, he shall be deemed to have been arrested in all the cases. After continuous physical custody of the accused with the police, the Magistrate will not be justified in granting his physical remand in another case and similarly after the accused is released on bail in one case, he will not be arrested by the police in the other case. It is desirable that the Police Officer, while applying for the physical remand of an accused person should certify that he is not required in any other case and if there are more than one cases against him, then the S.H.O./Investigating officer will state this fact in the remand application. Similarly while granting physical remand, the Magistrate shall inquire from the S.H.O./Investigating Officer as to whether the accused is required in other cases or whether any other case is registered against him at the police station. If the accused has remained with police pursuance to the remand granted under section 167, Cr.P.C. then the Magistrate will be justified in refusing further physical remand of the accused in another case. It goes without saying that whenever the police indulges in these tactics of arresting the accused successively in different case, it is not taken in good taste by the public and the Courts.

1992 PCrLJ 131

#criminallaw #criminaltrial #criminalcase

Scope of Section 249-A Cr.P.C. Running of civil and criminal proceedings simultaneously Running of disciplinary and criminal proceedings simultaneously Standard of evidence in civil and criminal proceedings

Key points in judgment

• Scope of section 249-A CrPC
• Running of civil and criminal proceedings simultaneously 
• Running of disciplinary and criminal proceedings simultaneously
• Standard of evidence in civil and criminal proceedings
• 
  
  
  

Criminal Procedure Code (V of 1898)---

----S. 249-A---Power of Magistrate to acquit accused at any stage---Second FIR---Civil and criminal proceedings---Scope---Accused assails dismissal of his application under S. 249-A, Cr.P.C.---Counsel for accused contended that the instant FIR was replica of earlier FIR, which was quashed by the High Court; that second FIR on same facts was barred under the law; that civil proceedings between the parties were also pending; that both civil and criminal proceedings could not go side by side and requests for stay of criminal proceedings till the decision of civil litigation by declaring that criminal proceedings were dependent upon the outcome of civil litigation---Second FIR was based on entirely different facts and premise---Even the nature of documents was different; therefore, it could not be termed as replica or verbatim of earlier FIR---Second FIR was proceed-able under the law---Question of inheritance was pending before the civil court, if the proof failed, party would lose the inheritance, would be deprived of the property and nothing more---Even after a criminal trial, a civil action on the same cause of action was not barred; neither principle of res judicata was applied nor question of autrefois acquit, autrefois convict (previously acquitted and previously convicted), arises---Order passed by Trial Court on application of accused was well reasoned and based on established principles of law---Criminal revision being devoid of merit was dismissed accordingly. 

 Administration of justice---

----Civil and criminal proceedings---Scope---Disciplinary and criminal proceedings can go side by side and there is no bar for their simultaneous prosecution.

Torts---

----Civil and criminal proceedings---Scope---If an offence is also an actionable wrong, affected person is not precluded to claim damages even though accused stood acquitted from criminal charge on same facts and such claim would neither be hit by principle of res judicata nor by double jeopardy.

Administration of justice---

----Civil and criminal proceedings--- Scope--- Standard of appraisement of evidence in criminal and civil cases is altogether different and findings of criminal court are not binding on civil court.

Administration of justice---

----Civil and criminal proceedings---Scope---Civil and criminal proceedings go side by side due to their ultimate outcome and difference in standard of proof---Even after civil proceedings, there is no bar for initiation of criminal proceedings and vice versa; evidence recorded in one proceeding cannot be read in other proceedings except in some cases where any question in criminal proceedings wholly and entirely depends upon the determination by civil court.

2022 PCrLJ 1050

Criminal Law, Criminal trial, Criminal proceedings, Acquittal, Criminal Jurisprudence, Administration of justice

Criminal trial - Golden principles to hold accused responsible for crime

•  Criminal trial
• Golden principles to hold accused responsible for crime
• Pakistan penal code, PPC, Evidence law, Law of evidence, Wanun-e-Shahadat

The golden principles to hold the accused responsible for a crime can be formulated as under: -

i.        Conviction cannot be based merely on the high probabilities that may be inferred from evidence in a given case.

ii.       Finding of the guilt should rest surely and firmly on the evidence produced by the prosecution.

iii.      Mere conjectures and probabilities cannot take the place of legal proof otherwise the golden rule of benefit of doubt will be reduced to naught.

iv.      Accused is only to create doubt in prosecution’s case.

v.       It is the duty of prosecution to prove its case beyond reasonable doubt.

vi.      Benefit of every reasonable doubt must go to the accused.

vii.     Benefit of doubt however slight must go to the accused.

viii.    Single infirmity in prosecution’s case will entitle the accused to benefit of doubt.

ix.      Court is not supposed to thumb mark blindly what the prosecution has desired.

x.       Rule of law is the supreme consideration and nothing is top to it. A Judge is only to be impressed when “burden of persuasion” is successfully discharged which means to convince the Court that qualitative evidence is there.

Cross Version - Procedure to be adopted

 Main Points

• Procedure in cross cases provided
• Cross cases will run side by side
• Trial will be conducted by same court
• Judgment in both cases will be announced simultaneously 

Criminal trial---

----Cross-versions---Scope---Counter cases would be tried side by side by the same court till their conclusion and judgments are to be pronounced simultaneously. 

Penal Code (XLV of 1860)---

----Ss. 337-A(i), 337-F(i), 337-L(2) & 34---Shajjah-i-khafifah, ghayr-jaifah, damiyah, causing hurt and common intention---Appreciation of evidence---Prosecution case was that the accused armed with sticks attacked upon the complainant and his daughter and both of them received injuries---Record showed that the challan of case was submitted before the Judicial Magistrate, who tried the case and accused petitioners were convicted---Cross case was submitted before the Sessions Court which was tried and accused were acquitted---Complainant of said cross case filed acquittal appeal, which was partly allowed and case was remanded to the Trial Court---Trial in both the cases should have been conducted side by side by the Trial Court, as in such like cases, the prime question was the determination of aggressor and aggressed upon---Such a question could not be determined without analysis of the evidence of both the cases---Trial Court without conducting a trial in case under Ss. 324 & 34, P.P.C., had dealt with the trial of the petitioners in a haphazard manner and recorded their conviction and sentence, which exercise undertaken by the Trial Court was against the general practice in cases of counter versions---True that the Code of Criminal Procedure, 1898 was silent with regard to procedure to be adopted in the trial of counter cases, arising out of the same incident and it had not been laid down anywhere in the Code of Criminal Procedure, 1898 as an absolute rule that all charges and counter-charges must be tried by the same court, however, it was a salutary practice that two criminal cases relating to the same incident were to be tried and disposed of by the same court by pronouncing judgments on the same day---Practical reasons for adopting such procedure was nothing but to staves off the danger of an accused being convicted before his whole case was before the court---To deter conflicting judgments being delivered upon similar facts and in reality, the case and the counter case were to all intend and purposes different or conflicting versions of one incident and finally to determine the question as to who was the aggressor and who was aggressed upon---Petition was partly accepted, in circumstances and by setting aside the impugned judgments and the case was remanded to the Additional Sessions Judge for decision afresh.

#criminallaw #criminallawyet

2022 M L D 1589

Recording of evidence of deaf and dumb witness

Recording evidence of a witness who is deaf and dumb.

While examining a deaf and dumb witness, following steps should be taken by the learned trial Courts: 

 To ascertain whether such a witness possesses the requisite amount of intelligence;  

 Whether he understands the nature of oath;  

 Trial Court is also required to record his satisfaction to that effect;  

 The trial Court is required to ascertain, if the witness either by writing or sign can make intelligible of what he has to speak;  

 If he is able to communicate his statement perfectly by writing, it will be more satisfactory method of taking evidence;  

 When such a witness is unable to write, then he can make sign showing what he wants to say;  

 If it is by signs, those signs must be recorded by the learned trial Court and not only the interpretations of those signs;  

 It is necessary to enable the appellate Court to know whether the interpretation of the sign is correct or not;  

 It is not safe for a trial Court to embark upon the examination of a deaf and dumb person on his own without help of an expert or a person familiar with his mode of conveying ideas to others in day to day life; 

 The interpreter should not be a interested person, who had participated in the investigation and who is a witness in the same trial;  

 Interpreter should be a person of the same surrounding but should not have any interest in the case and he should be administered oath;

PLJ 2022 CrC 1365