Code of Criminal Procedure, 1898 PAKISTAN , SECTION 426 TO 497

Code of Criminal Procedure, 1898 PAKISTAN , 

SECTION 426 TO 497

426. Suspension of sentence pending appeal: Release of appellant on bail: (1) Pending any appeal by a

convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the

execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he

be released on bail or on his own bond.

(1-A) An Appellate Court shall, unless for reasons to be recorded in writing if otherwise directs, order a

convicted person to be released on bail who has been sentenced.

(a) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a

period of six months of his conviction;

(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has

not been decided with a period of one year of his conviction;

(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided

within a period of two years of his conviction].

(2) The power conferred by this section on an appellate Court may be exercised also by the High Court in

the case of any appeal by a convicted person to a Court subordinate thereto.

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(2-A) [Subject to the provisions of section 382-A] when any person other than a person accused of a nonbailable

offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court

may if the convicted person satisfies the Court that he intends to present an appeal, order that he be

released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and

obtain the orders of the Appellate Court under sub-section (1) and the sentence of imprisonment shall, so

long as he is so released on bail, be deemed to be suspended.

(2-B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal by

the Supreme Court against any sentence which it has imposed or maintained, it may if it so thinks fit order

that pending the appeal the sentence or order appealed against be suspended, and also, if said person is in

confinement, that he be released on bail.

(3) When the appellant is ultimately sentenced to imprisonment, or [imprisonment for life], time during

which he is so released shall be excluded in computing the term for which he is so sentenced.

427. Arrest of accused in appeal from acquittal. When an appeal is presented under section 411A, subsection

(2), or section 417, the High Court may issue a warrant directing that the accused be arrested and

brought before it or any subordinate Court, and the Court before which he is brought may commit him to

prison pending the disposal of the appeal, or admit him to bail.

428. Appellate Court may take further evidence or direct to be taken. (1) In dealing with any appeal

under this Chapter, the appellate Court, if it thinks additional evidence to be necessary, shall record its

reasons and may either take such evidence itself, or direct it to be taken by a Magistrate or, when the

Appellate Court is a High Court, by a Court of Session or an Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify

such evidence to the Appellate Court and such Court shall thereupon proceed to dispose of the appeal;

(3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the

additional evidence Is taken ......

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV as if it

were an inquiry.

429. Procedure where Judge of Court of Appeal are equally divided. When the Judge composing the

Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before

another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver

his opinion, and the judgment or order shall follow such opinion.

430. Finality of orders on appeal. Judgments and orders passed by an Appellate Court upon appeal shall

be final, except in the cases provided for in section 417 and Chapter XXXII.

431. Abatement of Appeals. Every appeal under section 411 A sub-section (2), or section 417 shall!

finally abate on the death of the accused, any every other appeal under this Chapter (except an appeal from

a sentence of fine) shall finally abate on the death of the appellant.

CHAPTER XXXII - OF REFERENCE AND REVISION

432 and 433. [Reference by Presidency Magistrate to High Court. Disposal of case according to decision

of High Court and direction as to costs]. Omitted by A.O., 1949, Schedule.

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434. [Power to reserve questions arising in original jurisdiction of High Court and procedure when

question reserved]. Omitted by the Criminal Procedure (Amendment) Act, 1943 XXVI of 1943). S. 6.

435. Power to call for records of inferior Courts. (1) The High Court or any Sessions Judge [….], may

call for and examine the record of any proceeding before any inferior Criminal Court situate within the

local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness,

legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any

proceedings of such inferior Court and may, when calling for such record, direct that the execution of any

sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond

pending examination of the record.

[Explanation. All Magistrates, shall be deemed to be inferior to the Session Judge for the purposes of this

sub-section.]

(2) If any Sub-divisional Magistrate acting under sub-section (1) considers that any such finding, sentence

or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with

such remarks thereon as he thinks fit, to the District Magistrate.

(3) [* * * * *]

(4) If an application under this section has been made either to the Sessions Judge or District Magistrate,

no further application shall be entertained by the other of them.

[436. Power to order further inquiry. On examining any record under section 435 or otherwise-

(a) the High Court may direct the Sessions Judge to require a District Magistrate subordinate to him to

make, and the Sessions Judge himself may direct any Judicial Magistrate subordinate to him to make,

further inquiry into any complaint which has been dismissed under section 203 or sub-section (3) of

section 204 [.-}.

(b) The High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the

Executive Magistrates subordinate to him to make further inquiry into any proceeding in which order of

discharge or release has been made under section 119.]

Proviso.- [Proviso omitted by Act XXI of 1976]

437. [Omitted by Act XXI of 1976.]

[438. Report to High Court. (1) The [….] District Magistrate may, if he thinks fit, on examining under

section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of

such examination, and, when such report contains a recommendation that a sentence be reversed or altered,

may order that the execution of such sentence be suspended, and, if the accused is in confinement, that he

be released on bail or on his own bond.

(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under

this Chapter in respect of any case which may be transferred to him by or under any general or special

order of the Session

Judge. ]

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439. High Court's powers of revision. (1) In the case of any proceeding the record of which has been

called for by itself, [....] or which otherwise comes to its knowledge, the High Court may, in its discretion,

exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court

by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are

equally divided in opinion, the case shall be disposed of in manner provided by section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an

opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by Magistrate [....], the Court shall not

inflict a greater punishment for the offence which, in the opinion of such Court, the accused has

committed, than might have been inflicted for such offence by Magistrate of the first class.

(4) Nothing in this section shall be deemed to authorize a High Court:

(a) to convert a finding of acquittal into one of conviction; or

(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under

section 439-A.]

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall

be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has

been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in

showing cause, be entitled also to show cause against his conviction.

439-A. Sessions Judge's powers of revision. (1) In the case of any proceeding before a Magistrate the

record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the

Sessions Judge may exercise any of the powers conferred on the High Court by section 439.

(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under

this Chapter in respect of any case which may be transferred to him under any general or special order of

the Session Judge].

440. Optional with Court to hear parties. No party has any right to be heard either personally or by

pleader before any Court when exercising its powers of revision.

Provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally

or by pleader, and that nothing in this section shall be deemed to affect section 439, sub-section (2).

441. [Statement by Presidency Magistrate of grounds of his decision to be considered by High

Court}. Omitted by A.O., 1949 Schedule.

442. High Court's-order to be certified to lower Court or Magistrate. When a case is revised under this

Chapter by the High Court, it shall, in manner hereinbefore provided by section 425, certify its decision or

order to the Court by which the finding, sentence or order revised was recorded or passed, and the Court or

Magistrate to which the decision or order is so certified shall thereupon make such orders as are

conformable to the decision so certified; and, if necessary, the record shall be amended in accordance

therewith.

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PART VIII - SPECIAL PROCEEDINGS - CHAPTER XXXIII

443-463. [Omitted by Act II of 1950]

CHAPTER XXXIV - LUNATICS

464. Procedure in case of accused being lunatic. (1) When a Magistrate holding an inquiry or a trial has

reason to believe that the accused is of unsound mind and consequently incapable of making his defence,

the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined

by the Civil Surgeon of the district or such other medical officer as the Provincial Government directs and

thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to

writing.

(1A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with

the provisions of section 466.

(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of

making his defence he shall record a finding to that effect and shall postpone further proceedings in the

case.

[465. Procedure in case of person [sent for trial] before Court of Session or High Court being lunatic.

(1) If any person before a Court of Session or a High Court appears to the Court at his trial to be of

unsound mind and consequently Incapable of making his defence, the Court shall, In the first instance, try

the fact of such unsoundness and Incapacity, and if the Court is satisfied of the fact, it shall record a

finding to that effect and shall postpone further proceedings in the case.]

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be

part of his trial before the Court.]

466. Release of lunatic pending investigation or trial. (1) Whenever an accused person is found to be of

unsound mind and incapable of making his defence, the Magistrate or Court, as the case may be, whether

the case is one in which bail may be taken or not, may release him on sufficient security being given that

he shall be properly taken care of and shall be prevented from doing injury to himself or to any other

person, and for his appearance when required before the Magistrate or Court or such officer as the

Magistrate or Court appoints in this behalf.

(2) Custody of lunatic. If the case is one in which, in the opinion of the Magistrate or Court, bail should not

be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the

accused to be detained in safe custody in such place and manner as he or it may think fit and shall report

the action taken to the Provincial Government:

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in

accordance with such rules as the Provincial Government may have made under the Lunacy Act, 1912.

467. Resumption of inquiry or trial. (1) Whenever an inquiry or a trial is postponed under section 464 or

section 465, the Magistrate or Court, as the case may be, may at any time resume the inquiry or trial, and

require the accused to appear or be brought before such Magistrate or Court.

(2) When the accused has been released under section 466, and the sureties for his appearance produce him

to the officer whom the Magistrate or Court appoints in this behalf, the certificate of such officer that the

accused is capable of making his defence shall be receivable in evidence.

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468. Procedure on accused appearing before Magistrate or Court. When the accused appears or is

again brought before the Magistrate or the Court, as the case may be, the Magistrate or Court considers

him capable of making his defence, the inquiry or trial shall proceed.

(2) If the Magistrate or Court considers the accused to be still incapable of making his defence, the

Magistrate or Court shall again act according to the provisions of section 464 or section 465, as the case

may be, and if the accused is found to be of unsound mind and incapable of making his defence, shall deal

with such accused in accordance with the provisions of section 466.

[469. When accused appears to have been insane. When the accused appears to be of sound mind at the

time of Inquiry or trial and the Magistrate or Court Is satisfied from the evidence given before him or it

that there is reason to believe that the accused committed an act which, if he had been of sound mind,

would have been an offence, and that he was at the time when the act was committed, by reason of

unsoundness of mind incapable of knowing the nature of the fact or that it was wrong or contrary to law,

the Magistrate or Court shall proceed with the case.]

470. Judgment of acquittal on ground of lunacy. Whenever any persons Is acquitted upon the ground

that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of

mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or

contrary to law, the finding shall state specifically whether he committed the act or not.

471. Person acquitted on such ground to be detained in safe, custody. (1) Whenever the finding states

that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial

has been held, shall if such act would, but for the incapacity found, have constituted an offence, order such

person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and

shall report the action taken to the Provincial Government:

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in

accordance with such rules as the Provincial Government may have made under the Lunacy Act, 1912.

(2) Powers of Provincial Government to relieve Inspector-General of certain functions. The

Provincial Government may empower the officer in charge of the jail in which a person is confined under

the provisions of section 466 or this section, to discharge all or any of the functions of the Inspector-

General of Prisons under section 473 or section 474.

472. [Lunatic prisoners to be visited by Inspector General]. Rep. by the Lunacy Act, 1912, Ss. 101 and

Schedule II.

473. Procedure where lunatic prisoner is reported capable of making his defence. If such person is

detained under the provisions of section 466 and in the case of a person detained in a jail, the Inspector

General of Prisons, or, in the case of a person detained in a lunatic asylum, the visitors of such asylum or

any two of them shall certify that, in his or their opinion such person is capable of making his defence, he

shall be taken before the Magistrate or Court, as the case may be, at such time as the Magistrate or Court

appoints, and the Magistrate or Court shall deal with such person under the provisions of section 468; and

the certificate of such Inspector General or visitors as aforesaid shall be receivable as evidence.

474. Procedure where lunatic detained under section 466 or 471 is declared fit to be released. (1) If

such person is detained under the provisions sections 466 or section 471, and such Inspector General or

visitors shall certify that, in his or their judgment, he may be released or to be detained in custody, or to be

transferred to a public lunatic asylum if he has not been already sent to such an asylum; and in case it

orders him to be transferred to an asylum, may appoint .a Commission, consisting of a Judicial and two

medical officers.

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(2) Such Commission shall make formal inquiry into the state of mind of such person, taking such

evidence as is necessary, and shall report to the Provincial Government which may order his release or

detention as it thinks fit.

475. Delivery of lunatic to care of relative or friend. (1) Whenever any relative or friend of any person

detained under the provisions of section 466 or section 471 desires that he shall be delivered to his care and

custody, the Provincial Government may, upon the application of such relative or friend and on his giving

security to the satisfaction of such Provincial Government that the person delivered shall:

(a) be property taken care of and prevented from doing injury to himself or to any other person, and

(b) be produced for the inspection of such officer, and at such times and places, as the Provincial

Government may direct, and

(c) in the case of a person detained under section 466, be produced when required before such Magistrate

or Court, order such person to be delivered to such relative or friend.

(2) If the person so delivered is accused of any offence the trial of which has been postponed by reason of

his being of unsound mind and incapable of making his defence and the Inspecting officer referred to in

sub-section (1), clause (b), certifies at any time to the Magistrate or Court that such person is capable of

making his defence, such Magistrate or Court shall call upon the relative or friend to whom such accused

was delivered to produce him before the Magistrate or Court; and, upon such production, the Magistrate or

Court shall proceed in accordance with the provisions of section 468, and the certificate of the inspecting

officer shall be receivable as evidence.

CHAPTER XXXV - PROCEEDINGS IN CASE OF CERTAIN OFFENCES AFFECTING THE

ADMINISTRATION OF JUSTICE

[476. Procedure in cases mentioned in section 195. (1) When any offences referred to in section 195,

sub-section (1) clause (b) or clause (c), has been committed in, or in relation to a proceeding in any Civil,

Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance

with the procedure prescribed for summary trials in Chapter XXII.

(2) When in any case tried under sub-section (1) the Court finds the offender guilty, it may,

notwithstanding anything contained in sub-section (2) of section 262:

(a) pass any sentence on the offender authorized by law for such offence, except a sentence of death, or,

imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, a Court of

Session, a District Court or any Court exercising the power of a Court of Session or a District Court;

(b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a

fine not exceeding [one thousand rupees) or both, if such Court be a Court of Magistrate of the first class, a

Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court

or Revenue Court not inferior to the Court of Collector;

(c) sentence the offender to simple imprisonment for a term not exceeding one month, or to pay a fine not

exceeding fifty rupees or both, If such Court be a Criminal Court or Revenue Court other than a Court

referred to in clause (a) or clause (b).

(3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in

respect of any offence referred to in sub-section (1) and alleged to have been committed in relation to any

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proceeding in such Court to which such former Court is subordinate within the meaning of sub-section (3)

of S. 195.

(4) Any person sentenced by any Court, under this section may, notwithstanding anything hereinbefore

contained, appeal;

(a) in the case of a sentence by the High Court, to the Supreme Court;

(b) in case of a sentence by a Court of Session or District Court, or a Court exercising the powers of a

Court of Session or a District Court, to the High Court, and

(c) in any other case, to the Session Judge.

(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeal under this section

and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against].

[476-A. Forwarding of cases for trial by Courts having jurisdiction. (1) If the Court in any case

considers that the person accused of any of the offence referred to in section 476, sub-section (1), and

committed in, or in relation to, any proceedings before it, should not be tried under that section, such Court

may, after recording the facts constituting the offence and the statement of the accused person, as

hereinbefore provided, forward the case to a Court having jurisdiction to try the case, and may require

security to be given for the appearance of such accused person before such Court, or, if sufficient security

is not given, shall forward such person in custody to such Court.

(2) The Court to which a case is forwarded under this section shall proceed to hear the complaint against

the accused person in the manner hereinbefore provided.]

476-B. Omitted by Law Reforms Ordinance. 1972 Item 158.

477. Repealed by Amendment Act XVIII of 1923. S. 129.

478. Omitted by Law Reforms Ordinance, 1972, item 158.

479. Omitted by Law Reforms Ordinance, 1972, item 158.

480. Procedure in certain cases of contempt. (1) When any such offences as is described in section 175,

section 178, section 179, section 180 or section 228 of the Pakistan Penal Code is committed in the view or

presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in

custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance

of the offence and sentence the offender to fine, not exceeding two hundred rupees, and, in default of

payment, to simple imprisonment for a term which may extend to one month, unless such fine be sooner

paid.

481. Record in such cases. (1) In every such case the Court shall record the facts constituting the offence,

with statement (if any) made by the offender, as well as finding and sentence.

(2) If the offence is under section 228 of the Pakistan Pena! Code, the record shall show the nature and

stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the

interruption or insult.

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482. Procedure where Court considers that case should not be dealt with under section 480. (1) If the

Court in any case considers that a person accused of any of the offences referred to in section 480 and

committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or

that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other

reason of opinion that the case should not be disposed of under section 480, such Court after recording the

facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the

case to a Magistrate having jurisdiction to try the same and may require security to be given for the

appearance of such accused person before such Magistrate or if sufficient security is not given, shall

forward such person in custody to such Magistrate.

(2) The Magistrate, to whom any case is forwarded under this section, shall proceed to hear the complaint

against the accused person in manner hereinbefore provided

483. When Registrar or Sub-Registrar to be deemed a Civil Court with section 480 and 482. When

the Provincial Government so directs, any Registrar or any Sub-Registrar appointed under the [Registration

Act, 1908] shall be deemed to be a Civil Court within the meaning of sections 480 and 482.

484. Discharge of offender on submission of apology. When any Court has under section 480 or section

482 adjudged an offender to punishment or forwarded him to a Magistrate for trial for refusing or omitting

to do anything which he was lawfully required to do or for any intentional insult or interruption, the Court

may, in its discretion, discharge the offender or remit the punishment on his submission to the order or

requisition of such Court, or on apology being made to its satisfaction.

485. Imprisonment or committal of person refusing to answer or produce document. If any witness or

person called to produce a document or thing before a Criminal Court refuses to answer such questions as

are put to him or produce any document or thing in his possession or power which the Court requires him

to produce, and does not offer any reasonable excuse for such refusal, such Court may, for reasons to be

recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding

Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven

days, unless in the meantime such person consents to be examined and to answer, or to produce the

document or thing. In the event of his persisting in his refusal, he may be dealt with according to the

provisions of section 480 or section 482, and, in the case of a High Court, shall be deemed guilty of a

contempt.

486. Appeal from convictions in contempt cases. (1) Any person sentenced by any Court under section

480 may, notwithstanding anything hereinbefore contained, appeal to the Court to which decrees or orders

made in such Court are ordinarily appealable.

(2) The provisions of Chapter XXXI shall so far as they are applicable, apply to appeals under this section,

and the Appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed

against.

(3) An appeal from such conviction by a Court of Small Causes shall lie to the Court of Sessions for the

sessions division within which such Court is situate.

(4) An appeal from such conviction by any officer as Registrar or Sub-Registrar appointed as aforesaid

may, when such officer is also Judge of a Civil Court, be made to the Court to which it would, under the

preceding portion of this section, be made if such conviction were a decree by such officer in his capacity

as such Judge, and in other cases may be made to the District Judge.

487. Certain Judges and Magistrates not to try offences referred to in section 195 when committed

before themselves. (1) Except as provided in section 8(476], 480 and 485, no Judge of a Criminal Court or

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Magistrate, other than a Judge of a High Court shall try any person for any offence referred to in section

195, when such offence is committed before himself or in contempt of his authority, or is brought under his

notice as such Judge or Magistrate in the course of a judicial proceeding.

(2) [Omitted by Law Reforms Ordinance, 1972, item 160(ii).]

CHAPTER XXXVI - OF THE MAINTENANCE OF WIVES AND CHILDREN

488. Order for maintenance of wives and children. (1) If any person having sufficient means neglects or

refuses to maintain his wife or his legitimate or illegitimate child unable maintain itself, [....} a Magistrate

of the first class may, upon proof of such neglect or refusal, order such person to make a monthly

allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding four hundred

rupees in the whole, as such Magistrate thinks fit and to pay the same to such person as the Magistrate

from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the

application for maintenance.

(3) Enforcement or order. If any person so ordered fails without sufficient cause to comply with the

order, any such Magistrate may, for every breach of the order issue a warrant for levying the amount due in

manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part

of such month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term

which may extend to one month or until payment if sooner made:

Provided that, if such person offers to maintain his wife on condition of her living with him, and she

refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make

an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so

doing.

Provided further that no warrant shall be issued for the recovery of any amount due under this section

unless application be made to the Court to levy such amount within a period of one year from the date on

which it became due.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in

adultery, or if without any sufficient reason, she refuses to live with her husband or if they are living

separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery,

or that without sufficient reasons she refuses to live with her husband, or that they are living separately by

mutual consent, the Magistrate shall cancel the order.

(6) All evidence under this Chapter shall be taken in the presence of husband or father, as the case may be,

or, when his personal attendance is dispensed with, in the presence of his pleader, and -shall be recorded in

the manner prescribed in the case of summons-cases;

Provided that if the Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend

the Court the Magistrate may proceed to hear and determine the case ex-parte. Any orders so made may be

set aside for good cause shown on application made within three months form the date thereof.

(7) The Court in dealing with applications under this section shall have power to make such order as to

costs as may be just.

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(8) Proceedings under this section may be taken against any person in any district where he resides or is,

where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.

489. Alteration in allowance. (1) On proof of a change in the circumstance of any person receiving under

section 488 a monthly allowance, or ordered under the same section to pay monthly allowance to his wife

or child, the Magistrate may make such alteration in the allowance as he thinks fit provided that if he

increases the allowance the monthly rate of four hundred rupees in the whole be not exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any

order made under section 488 should be cancelled or varied, he shall cancel the order or, as the case may

be, vary the same accordingly.

490. Enforcement of order of maintenance. A copy of order of maintenance shall be given without

payment to the person in whose favour it is made or to his guardian, if any, or to whom the allowance is to

be paid; and such order may be enforced by any Magistrate being satisfied as to the identity of the parties

and the non-payment of the allowance due].

CHAPTER XXXVII - DIRECTIONS OF THE NATURE OF A HABEAS CORPUS

491. Power to issue directions of the nature of a Habeas Corpus. Any High Court may, whenever it

thinks fit, direct:

(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be

dealt with according to law:

(b) that a person illegally or improperly detained in public or private custody within such limits be set at

liberty;

(c) that a prisoner detained in any jail situate within such limits be brought before Court to be there

examined as a witness in any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial

or to be examined touching any matter pending before such Court-martial or Commissioners respectively.

(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f) that the body of defendant within such limits be brought in on the Sheriff's return of cepi corpus to a

writ of attachment.

(2) The High Court may, from time to time, frame rules to regulate the procedure in the cases under this

section.

(3) Nothing in this section applies to persons detained under [any other law providing for preventive

detention.]

491 A. [Powers of High Court outside the limits of appellate jurisdiction} Omitted by the Criminal

Law (Extinction of Discriminatory Privileges Act, 1940 (II of 1950), Schedule.

PART IX - SUPPLEMENTARY PROVISIONS - CHAPTER XXXVIII - OF THE PUBLIC

PROSECUTOR

Pakistan: Code of Criminal Procedure 1898 102

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492. Power to appoint Public Prosecutors. (1) The Provincial Government may appoint, generally, or in

any case, or for any specified class of cases, in any local area, one or more officers to be called Public

Prosecutors.

(2) The District Magistrate, or subject to the control of the District Magistrate, the Sub-Divisional

Magistrate, may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been

appointed, appoint any other person, not being an officer of police below such rank as the Provincial

Government may prescribe in his behalf to be Public Prosecutor for the purposes of any case.

493. Public Prosecutor may plead in all Courts in cases under his charge; Pleaders privately

instructed to be under his direction. The Public Prosecutor may appear and plead without any written

authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if

any private person instructs a pleader to prosecute in any Court any person in any such case, the Public

Prosecutor shall conduct the prosecution and the pleader so instructed shall act therein, under his

directions.

494. Effect of withdrawal from prosecution. Any Public Prosecutor may, with the [....] consent of the

Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or

in respect of any one or more of the offences for which he is tried, and upon such withdrawal:

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence

or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be

acquitted in respect of such offence or offences;

495. Permission to conduct prosecution. (1) Any Magistrate inquiring into or trying any case may permit

the prosecution to be conducted by any person other than an officer of police below the tank to be

prescribed by the Provincial Government in this behalf but no person other than the Advocate-General,

Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially

empowered by the Provincial Government in this behalf, shall be entitled to do so without such permission.

(2) Any such officer shall have the like power of withdrawing from the prosecution as is provided by

section 494 and the provisions of that section shall apply to any withdrawal by such officer.

(3) Any person conducting the prosecution may do so personally or by a pleader.

(4) An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the

investigation into the offence with respect to which the accused is being prosecuted.

CHAPTER XXXIX - OF BAIL

496. In what cases bail to be taken. When any person other than a person accused of a non-bailable

offence is arrested or detained without warrant by an officer incharge of a police-station or appears or is

brought before a Court, and is prepared at any lime while in the custody of such officer or at any stage of

the proceedings before such Court to give bail, such person shall be released on bail: Provided that such

officer of Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his

executing a bond without sureties for his appearance as hereinafter provided:

Provided further that nothing in this section shall be deemed to affect the provisions of section 107, subsection

(4), or section 117, sub-section (3).

497. When bail may be taken in cases of non-bailable offence. (1) When any person accused of nonbailable

offence is arrested or detained without warrant by an officer-in-charge of a police station, or

appears or is brought before a Court, he may be released on bail, but he shall not be so released if there

appears reasonable grounds for believing that he has been guilty of an offence punishable with death or

[imprisonment for life or imprisonment for ten years].

Pakistan: Code of Criminal Procedure 1898 103

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Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick

or infirm person accused of such an offence be released on bail:

Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the

prosecution has been given notice to show cause why he should not be so released.

[Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused

has been occasioned by an act or omission of the accused or any other person acting on his behalf or in

exercise of any right or privilege under any law for the time being in force, direct that any person shall be

released on bail--

(a) who, being accused of any offence not punishable with death, has been detained for such offence for a

continuous period exceeding one year and whose trial for such offence has not concluded; or

(b) who, being accused of an offence punishable with death, has been detained for such offence for a

continuous period exceeding two years and whose trial for such offence has not concluded.

Provided further that the provisions of the third proviso to this subsection shall not apply to a previously

convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the

opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism.]

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may

be, that there are no reasonable grounds for believing that the accused has committed a non-bailable

offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending

such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a

bond without sureties for his appearance as hereinafter provided.

(3) Ah officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) shall record

in writing his or its reasons for so doing.

(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before

judgment is delivered, the Court Is of opinion that there are reasonable grounds for believing that the

accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution

by him of a bond without sureties for his appearance to hear judgment delivered.

(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may

cause any person who has been released under this section to be arrested and may commit him to custody.