SSRN Id1942976

‫اﻟﺮﺣﯿﻢ‬ ّ ‫اﻟﺮﺣﻤﻦ‬ ّ ‫ﺑﺴﻢ ﷲ‬
َ ‫ﻠﯽ َرﺳُۡﻮِﻟِہ اۡﻟ‬

‫ﮑِﺮۡﯾِﻢ‬ ٰ ‫ﺼﻠﱢﯽ َﻋ‬
َ ُ‫ﻧَۡﺤَﻤُﺪٗه َو ﻧ‬
LAW OF PROCEDURE IN PAKISTAN

by
[Justice ® Dr. Munir Ahmad Mughal]
WHAT IS A PROCEDURE?
Procedure means mechanism, manner to proceed, and way of conducting the trial from A
to Z. The object of procedure is to foster the cause of justice. Hence technicalities and
procedural intricacies are never allowed to hamper or impede the cause of justice. 1
Technicalities should be overlooked without causing any miscarriage of justice. 2
A procedure is a specific method or course of action.
A procedure is the judicial rule or manner for carrying on a civil law suit or
criminal prosecution.3
WHAT IS A MATTER OF PROCEDURE?
A matter of procedure is that matter which relates to procedure.

The rules that prescribe the steps for having a right or duty judicially enforced, as
opposed to the substantive law that defines the specific rights or duties themselves. A
procedural is also termed as adjective law, as it is the law that serves as a machinery to
implement the substantive law.
WHICH OF THE MATTERS ARE THE MATTERS RELATING TO

PROCEDURE?
In the case of Khan Asfandyar Wali v. Fed. of Pakistan the honourable Supreme Court
observed:
“Matters relating to remedy, mode of trial, the manner of taking evidence, and forms of
actions are all matters relating to procedure.”4
WHAT IS “CORAM NON JUDICE”?

It is a Latin term and is to be pronounced in English as “koram-non-joo-di-see”. Literally
it means Outside the presence of a judge. Technically, it means Before a judge or court
that is not the proper one or that cannot take legal cognizance of the matter.5
1
2000 MLD 865
2
PLD 1995 SC1 and 2001 SCMR 424.
3
Black’ Law Dictionary, 9th ed. 2009, p. 1323.
4
PLD 2001 S.C. 607
5
Black’ Law Dictionary, 9th ed. 2009, p. 388.
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WHERE A “CORAM NON JUDICE” TRIES AN ACCUSED PERSON, WHAT IS
THE CONSEQUENCE?
“Coram non judice” means not before a judge; outside the presence of a judge; before a
judge or court that is not proper one or that cannot take legal cognizance of the matter.6
In a case titled as Muhammad Nazir v. National Bank of Pakistan Any indictment or
sentence passed by a Court which has no authority to try an accused of that offence, is
clearly in violation of the law and would be coram non judice and a nullity. 7
WHERE LAW PRESCRIBES A PARTICULAR MANNER AND PROCEDURE

CAN A COURT ADOPT ANOTHER MANNER OR PROCEDURE?
Where law prescribes a particular manner and procedure in which things are required to
be done, the same must be done in that way or not at all. 8
WHERE NO PROCEDURE OR MANNER IS PRESCRIBED BY LAW

WHETHER A COURT HAS THE DISCRETION TO ADOPT ANY MANNER OR
PROCEDURE?
In such a situation, if any other law is relevant and applicable then that should be
followed. For example, both the Code of Criminal Procedure and the Qanun-i-Shahadat
Order 1984 do not prescribe any form of hearing a case. The oath to a witness is
administered under section 5 and 7 of the Oaths Act, 1873. The form of the oath is
prescribed in Chapter 12 Volume Iv of the High Court Rules and Orders. The Courts are
therefore not permitted to administer oath to a witness in any trial or case on the Holy
Qur’an or special oath according to customs of the Ilaqa. The witnesses are required to
be administered oath in the form of oath and affirmation prescribed by the High Court
Rules and Orders.9
Where no such instruction is available the court is not to work in vacuum. The Court is to
unearth the truth. As such on matters in which it declares law and on points specifically
dealt with by it, the Code must be deemed exhaustive. 10
In cases of absence of any provision in case of a particular matter, the Court may act on
the principle that every procedure should be understood as permissible till it is prohibited
by law.11
WHERE OFFENCES PUNISHABLE UNDER DIFFERENT STATUTES ARE OF

SIMILAR NATURE, UNDER WHICH STATUTE A COURT IS TO BE TRIED?
6
Black’s Law Dictionary, 9th ed. 2009, p. 388.
7
1994 P.Cr.L.J. 1922. See Access to Criminal Justice, selected Rulings on Criminal Trial, [Justice ® Dr.
Munir Ahmad Mughal], , Muneeb Book House, Lahore, 3rd ed. (2008), p. 200 heading 109(a).
8
2000 P.Cr. L. J. 1924; 2003 YLR 533.
9
PLD 1986 Lahore 222.
10
23 Cal 563 (P.C.).
11
1992 MLD 79.
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Such cases are called cases involving two different statutes. Where the offences
punishable under different statutes are of similar nature, the accused shall be tried under
the statute which entails lesser punishment.12
THE QUESTION IS WHY NOT THE ACCUSED SHALL BE TRIED UNDER
THE STATUTE THAT ENTAILS BIGGER PUNISHMENT?
The answer is,-
that the legislature is presumed to know all its legislation;
that the law leans towards the accused; and
that the law presumes innocence of the accused till the guilt is brought home to the
accused beyond any reasonable doubt.
It does not mean that an imbalance is to be created as to rights of the Complainant and the
Accused. Rights of both the Complainant and the accused are valuable. Courts are to take
a dynamic approach in order to discourage crime and not to act in aid of injustice to
perpetuate illegalities or put a premium on ill-gotten gains.
High Courts in all the provinces pf Pakistan have ample powers by way of their inherent
jurisdiction to give effect to any order passed under the Code, to prevent abuse of the
process of any Court or to secure the ends of justice under section 561-A of the Code of
Criminal Procedure, 1898.
WHERE LAW OF PROCEDURE APPLICABLE AT THE TIME OF ACTUAL

COMMISSION OF OFFENCE IS REPEALED BEFORE THE CASE IS
DECIDED AND NEW LAW OF PROCEDURE IS ENFORCED WITHOUT
SAVING THE OLD PROCEDURE UNDER WHICH LAW THE CASE WILL
PROCEED, THE OLD REPEALED LAW OR THE LAW IN FORCE AT THE
TIME THE CASE IS DECIDED?
An enactment is presumed to be prospective in nature unless there is an express provision

to the contrary in the enactment itself. 13 As such retrospective effect is not to be given to
penal statute unless the Act so provides expressly or by necessary implications. 14
Where there is change in law of procedure it is only the law in force at the time when the
case is decided which will apply. 15
PROCEDURE TO BE FOLLOWED IN LETTER AND SPIRIT
Provisions of the Code of Criminal Procedure, 1898 have to be followed in a regular

forum, in letter and spirit in the criminal trial. 16
In the case of Allah Bakhsh v. State the trial court examined the accused and proceeded
to frame charge. Case was further adjourned for recording remaining prosecution
evidence as well as defence evidence. It was observed by the High Court that trial court
could not call upon the accused to enter upon his defence and produce his evidence,
12
2003 MLD 165.
13
PLD 1957 Karachi 111.
14
PLD 1960 Karachi 20.
15
PLD 1959 Lahore 883.
16
PLD 2002 Lahore 84.
Electronic copy available at: https://ssrn.com/abstract=1942976

before conclusion of prosecution evidence, procedure adopted by the trial court was
illegal. 17
In the case of Azeeba Kausar v. Zafar Iqbal, the Federal Shari`at Court observed: Trial of
a case is to be conducted by the Court competent to try the offence and the proceedings
must be carried out in the prescribed manner and the Judgement passed under section
265-K Cr. P. C. is to be delivered only after following prescribed manner.18
SPECIAL V. GENERAL PROCEDURE WHICH IS TO BE FOLLOWED?
In the case of Abdi Saeed v. State, the High Court of Sindh (Karachi Bench) observed:
Where a statutes has created a special offence and lays down a special procedure for
investigation and trial of such offence. It is that procedure, that must be followed and not
the ordinary procedure.19
WHAT IS THE OBJECT OF PROCEDURE FOR CONDUCTING CRIMINAL

TRIAL?
The question was examined by the Hon’ble Supreme Court in a criminal case and it was
observed that the object of procedure for conducting criminal proceedings is to enable
court to ensure fair trial and to do justice. If in a particular case, despite departure from
the rule of procedure, justice has been done and order is found just and proper, which
caused no prejudice and injustice to accused, there is no necessity to undo such order and
set it aside for the mere reason that a wrong procedure has been adopted. 20
17
1977 P.Cr. L.J. 63.
18
2001 P.Cr. L.J. 255.
19
2002 P.Cr.L.J. 818.
20
PLD 2007 Supreme Court 202 (e). See Access to Justice Criminal Trial, [Justice ® Dr. Munir Ahmad
Mughal] , Muneeb Book House, Lahore, 3rd ed. (2008),Para 457 (f) p. 407.
Electronic copy available at: https://ssrn.com/abstract=1942976

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‫اﻟﺮﺣﯿﻢ‬ ّ ‫اﻟﺮﺣﻤﻦ‬ ّ ‫ﺑﺴﻢ ﷲ‬

َ ‫ﻠﯽ َرﺳُۡﻮِﻟِہ اۡﻟ‬

LAW OF PROCEDURE IN PAKISTAN

[Justice ® Dr. Munir Ahmad Mughal]

WHAT IS A MATTER OF PROCEDURE?

A matter of procedure is that matter which relates to procedure.

WHICH OF THE MATTERS ARE THE MATTERS RELATING TO

WHAT IS “CORAM NON JUDICE”?

WHERE LAW PRESCRIBES A PARTICULAR MANNER AND PROCEDURE

WHERE NO PROCEDURE OR MANNER IS PRESCRIBED BY LAW

WHERE OFFENCES PUNISHABLE UNDER DIFFERENT STATUTES ARE OF

WHERE LAW OF PROCEDURE APPLICABLE AT THE TIME OF ACTUAL

An enactment is presumed to be prospective in nature unless there is an express provision

PROCEDURE TO BE FOLLOWED IN LETTER AND SPIRIT

Provisions of the Code of Criminal Procedure, 1898 have to be followed in a regular

Electronic copy available at: https://ssrn.com/abstract=1942976

SPECIAL V. GENERAL PROCEDURE WHICH IS TO BE FOLLOWED?

WHAT IS THE OBJECT OF PROCEDURE FOR CONDUCTING CRIMINAL

Electronic copy available at: https://ssrn.com/abstract=1942976

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