Code of Criminal Procedure, 1898 PAKISTAN , SECTION 197 TO 250

Code of Criminal Procedure, 1898 PAKISTAN ,

SECTION 197 TO 250

197. Prosecution of Judges and public servants. (1) When any person who is a Judge within the meaning

of section 19 of the Pakistan Penal Code or when any Magistrate, or when any public servant who is not

removable from his office save by or with the sanction of the Central Government or a Provincial

Government, is accused of any offence alleged to have been committed by him while acting or purporting

to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the

previous sanction:

(a) in the case of a person employed in connection with the affairs of the Centre, of the President; and

(b) in the case of a person employed in connection with the affairs of a Province, of Governor of that

Province.

(2) Power of President or Governor as to prosecution. The President or Governor, as the case may be, may

determine the person by whom, the manner in which, the offences for which, the prosecution of such

Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is

to be held.

198. Prosecution for breach of contract, defamation and offences against marriage. No Court shall

take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or

under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some

person aggrieved by such offence:

Provided that, where the person so aggrieved is a woman who, according to the customs and manners of

the country ought not to be compelled to appear in public, or where such person is under the age of

eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some

other person may, with the leave of the Court, make a complaint on his or her behalf;

Provided further that where the husband aggrieved by an offence under section 494 of the said Code is

serving in any of the Armed Forces of Pakistan under conditions which are certified by the Commanding

Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person,

some other person authorized by the husband in accordance with the provisions of sub-section (1) of

section 199B may, with the leave of the Court, make a complaint on his behalf.

N.W.F.P. Amendment. In Section 198 of the Code, omit the words 'or under sections 493 to 496 (both

inclusive) of the same Code'; and the second proviso to this section.

[198-A. Prosecution for defamation against public servants in respect of their conduct in the

discharge of public functions. (1) Notwithstanding anything contained in this Code, when any offence

falling under Chapter XXI of the Pakistan Penal Code (Act XLV of 1860) is alleged to have been

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committed against the President, the Prime Minister a Federal Minister, Minister of State, Governor, Chief

Minister or Provincial Minister or any public servant employed in connection with the affairs of the

Federation or of a Province, in respect of his conduct in the discharge of his public functions, a Court of

Session may take cognizance of such offence, without the accused being committed to it for trial, upon a

complaint in writing made by the Public Prosecutor.

(2) Every such complaint shall set forth the facts which constitute the offence alleged, the nature of such

offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence

alleged to have been committed by him.

(3) No complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous

sanction.

(a) in the case of the President or the Prime Minister or a Governor, or any Secretary to the Government

authorized by him in this behalf.

(b) in the case of a Federal Minister or Minister of State, Chief Minister or Provincial Minister, of any

Secretary to the Government authorized in this behalf by the Government concerned.

(c) in the case of any public servant employed in connection with the affairs of the Federation or of a

province, of the Government concerned.

(4) No Court of Sessions shall take cognizance of an offence under sub-section (1) unless the complaint is

made within six months from the date on which the offence is alleged to have been committed.

(5) When the Court of Session takes cognizance of an offence under sub-section (1), then, notwithstanding

anything contained in the Code, the Court of Sessions shall try the case without the aid of a jury or

assessors and in trying the case shall follow the procedure prescribed for the trial by Magistrate of warrant

cases instituted otherwise than on a police report.

(6) The provisions of this section shall be in addition to, and not in derogation of those of section 198].

199. Prosecution for adultery or enticing a married woman. [No Court shall take cognizance of an

offence under section 497 or section 498 of the Pakistan Pena! Code, except:

(a) upon a report in writing made by a police-officer on the complaint of the husband of the woman, or in

this absence, by some person who had care of such woman on his behalf at the time when such offence was

committed; or

(b) upon a complaint made by the husband of the woman or, in his absence, made with the leave of the

Court by some person who had care of such woman on his behalf at the time when such offence was

committed:]

Provided that where such husband is under the age of eighteen years or is an idiot or is from sickness or

infirmity unable to make complaint, some other person may with the leave of the Court make a complaint

on his behalf:

Provided further that where such husband is serving in any of the Armed Forces of Pakistan under

conditions which are certified by his Commanding Officer as precluding him from obtaining leave of

absence to enable him to make a complaint in person, and where for any reason no complaint has been

made by a person having care of the woman as aforesaid, some other person authorized by the husband in

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accordance with the provisions of sub-section (1) of section 199B may, with the leave of the Court make a

complaint on his behalf.

(N.W.F.P. Amendment-Delete Section 199].

199-A. Objection by lawful guardian to complaint by person other than person aggrieved. When in

any case falling under section 198 or. section 199, the person on whose behalf the complaint is sought to be

made is under the age of eighteen years or is a lunatic, and the person applying for leave has not been

appointed or declared by competent authority to be the guardian of the person of the said minor or lunatic,

and the Court is satisfied that there is a guardian so appointed or declared, notice shall be given to such

guardian and the Court shall, before granting the application, give him a reasonable opportunity of

objecting to the granting thereof.

199-B. Form of authorization under second proviso to section 198 or 199. (1) The authorization of a

husband given to another person to make a complaint on his behalf under the second proviso to section 198

or the second proviso to section 199 shall be in writing, shall be signed or otherwise attested by the

husband, shall contain a statement to the effect that he has been informed of the allegation upon which the

complaint is to be founded, shall be countersigned by the Officer referred to in the said provisos, and shall

be accompanied by a certificate signed by the Officer, to the effect that leave of absence for the purpose of

making a complaint in person cannot for the time being be granted to the husband.

(2) Any document purporting to be such an authorization and complying with the provisions of sub-section

(1), and any document purporting to be a certificate required by that sub-section shall, unless the contrary

is proved, be presumed to be genuine, and shall be received in evidence.

N.W.F.P. Amendment-[In section 199-A of the Code; omit the words 'or section 199' and delete section

199-B].

CHAPTER XVI - OF COMPLAINTS TO MAGISTRATE

200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall at

once examine the complainant upon oath, and the substance of the examination shall be reduced to writing

and shall be signed by the complainant, and also by the Magistrate:

Provided as follows:

(a) when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate

to examine the complaint before transferring the case under section 192 [or sending it to the Court of

Sessions].

(aa) when the complaint is made in writing nothing herein contained shall be deemed to require the

examination of a complainant in any case in which the complainant has been made by a Court or by a

public servant acting or purporting to act in the discharge of his official duties:

(b) * * * * *

(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already

examined the complainant, Magistrate to whom it is so transferred shall not be bound to re-examine the

complainant.

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201. Procedure by Magistrate not competent to take cognizance of the case. (1) If the complaint has

been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return

the complaint for presentation to the proper Court with an endorsement to that effect.

(2) If the complaint has not beep made in writing such Magistrate shall direct the complainant to the proper

Court.

[202. Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which

it is authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3), or

transferred to it under Section 191 or Section 192, may, if it thinks fit, for reasons to be recorded postpone

the issue of process for compelling the attendance of the person complained against, and either inquire into

the case itself or direct an inquiry or investigation to be made by [any Justice of the Peace or by] a policeofficer

or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the

complaint.

Provided that, save where the complaint has been made by a Court, no such direction shall be made unless

the complainant has been examined on oath under the provisions of Section 200.

(2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1),

direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the

truth or falsehood of the complaint.

(3) If any inquiry or investigation under this section is made by a person not being a Magistrate [or Justice

of the Peace] or a police-officer, such person shall exercise all the powers conferred by this Code on an

officer-in-charge of a police-station, except that he shall not have power to arrest without warrant.

(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on

oath.]

203. Dismissal of complaint. [The Court] before whom a complaint is made or to whom it has been

transferred or [sent] may dismiss the complaint, if, after considering the statement on oath (if any) of the

complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment

no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.

CHAPTER XVII - OF THE COMMENCEMENT OF PROCEEDING BEFORE [COURTS]

204. Issue of process. (1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient

ground for proceeding and the case appears to be one in which, according to the fourth column of the

second schedule a summons should issue in the first instance, [it] shall issue its summons for the

attendance of the accused. If the case appears to be one in which, according to that column, a warrant

should issue in the first instance, [it] may issue a warrant, or, if, [it] thinks fit, a summons for causing the

accused to be brought or to appear at a certain time before such Court or (if [it] has not jurisdiction [itself])

some other Court having jurisdiction.

(2) Nothing in this section-shall be deemed to affect the provision of section 90.

(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall

be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the [Court] may

dismiss the complaint.

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205. Magistrate may dispense with personal attendance of accused. (1) Whenever a magistrate issue a

summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and

permit him to appear by his pleader.

(2) But the Magistrate inquiring or trying the case may, in his discretion, at any stage of the proceedings

direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner

hereinbefore provided.

CHAPTER XVIII - OF INQUIRY INTO CASES TRIABLE BY THE COURT OF SESSION OR

HIGH COURT

206-220. [Chapter XVIII consisting of sections 206-220 omitted by Law Reforms Ordinance, 1972. item

82. Enforced in the Province of Punjab w.e.f. 26.12.1975.]

CHAPTER XIX - OF THE CHARGE FORM OF CHARGES

221. Charge to state offence. (1) Every charge under this Code shall state the offence with which the

accused is charged.

(2) Specific name of offence; sufficient description. If the law which creates the offence gives it any

specific name, the offence may be described in the charge by that name only.

(3) How stated where offence has no specific name. If the law which creates the offence does not give it

any specific name, so much of the definition of the offence must be stated as to give the accused notice of

the matter with which he Is charged.

(4) The law and section of the law against which the offence is said to have been committed shall be

mentioned in the charge.

(5) What implied In charge. The fact that the charge is made is equivalent to a statement that every legal

condition required by law to constitute the offence charged was fulfilled in the particulars case.

(6) Language of charge. The charge shall be written either in English or in the language of the Court.

(7) Previous conviction when to be set out. If the accused having been previously convicted of any offence,

is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different

kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of

affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date

and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the

Court may add it any time before sentence is passed.

Illustrations

(a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the

definition of murder given in section 299 and 300 of the Pakistan Penal Code; that it did not fall within any

of the general exceptions of the same Code; and that it did not fall within any of the five exceptions to

sections 300 or that, if it did fall within Exception 1, one or other of the three provisos to that exception

apply to it.

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(b) A is charged, under section 326 of the Pakistan Penal Code, with voluntarily causing grievous hurt to B

by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for

by section 335 of the Pakistan Penal Code, and that the general exceptions did not apply to it

(c) A is accused of murder cheating, theft, extortion, adultery or criminal intimidation or using a false

property-mark. The charge may state that A committed murder, cheating, or theft, or extortion, or adultery

or criminal intimidation, or that he used a false property-mark, without reference to the definitions of those

crimes contained in the Pakistan Penal Code; but the sections under which the offence is punishable must,

in each instance, be referred to in the charge.

(d) A is charged, under section 184 of the Pakistan Penal Code, with intentionally obstructing a sale of

property offered for sale by the lawful authority of a public servant. The charge should be in those words.

222. Particulars as to time, place and person. (1) The charge shall contain such particulars as to the time

and place of the alleged offence, and the person (if any) against whom; or the thing (if any) in respect of

which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which

he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it

shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been

committed, and the dates between which the offence is alleged to have been committed, without specifying

particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence

within the meaning of section 234;

Provided that the time included between the first and last of such dates shall not exceed one year.

223. When manner of committing offence must be stated. When the nature of the case is such that the

particulars mentioned in section 221 and 222 do not give the accused sufficient notice of the matter with

which he is charged, the charge shall also contain such particulars of the manner in which the alleged

offence was committed as will be sufficient for that purpose.

Illustrations

(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the

manner in which theft was effected.

(b) A is accused of cheating B at a given time and place. The charge must set out the manner In which A

cheated B.

(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of

the evidence given by A which is alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time

and place. The charge must set out the manner in which A obstructed B in the discharge of his functions.

(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in

which A murdered B.

(f) A is accused of disobeying a direction of the law with intent to save B from punishment. The charge

must set out the disobedience charged and the law infringed.

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224. Words in charge taken in sense of law under which offence is punishable. In every charge words

used in describing an offence shall be deemed to have been used in the sense attached to them respectively

by the law under which such offence is punishable.

225. Effect of errors. No error in stating either the offence or the particulars required to be stated in the

charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case

as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure

of justice.

Illustrations

(a) A is charged under section 242 of the Pakistan Penal Code, with 'having been in possession of

counterfeit coin, having known at the time when he became possessed thereof that such coin was

counterfeit', the word 'fraudulently' being omitted in the charge. Unless it appears that A was in fact misled

by this omission, the error shall not be regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is

set out incorrectly. A defends himself, call witnesses and gives his own account of the transaction. The

Court may infer from this that the omission to set out the manner of the cheating is not material.

(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There

were many transactions between A and B and A had no means of knowing to which of them the charge

referred, and offered no defence. The Court may infer from such facts that the omission to set out the

manner of the cheating was, in the case a material error.

(d) A is charged with the murder of Khoda Bakhsh on the 21st January 1882. In fact the murdered person's

name was Haider Bakhsh, and the date of the murder was the 20th January 1882. A was never charged

with any murder but one, and had heard the [trial], which referred exclusively to the case of Haider

Bakhsh. The Court may infer from these facts that A was not misled and that the error in the charge was

immaterial.

(e) A was charged with murdering Haider Bakhsh on the 21st January 1882. When charged for the murder

of Haider Bakhsh, he was tried for the murder of Khoda Bakhsh. The witnesses present in his defence were

witnesses in the case of Haider Bakhsh. The Court may infer from this that A was misled, and that the error

was material.

226. [Omitted by Law Reforms Ordinance 1972, item 84].

227. Court may alter charge. (1) Any Court may later or add to any charge at any time before judgement

is pronounced [......].

(2) Every such alteration or addition shall be read and explained to the accused.

228. When trial may proceed immediately after alteration. If the charge framed or alteration or addition

made under [....} section 227 is such that proceeding immediately with the trial is not likely, in the opinion

of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case. the Court

may, in its discretion, after such charge or alteration has been framed or made, proceed with the trial as if

the new or altered charge had been the original charge.

229. When new trial may be directed, or trial suspended. If the new or altered or added charge is such

that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or

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the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as

may be necessary.

230. Stay of proceedings if prosecution of offence in altered charge requires previous sanction. If the

offence stated in the new or altered or added charge is one for the prosecution of which previous sanction

is necessary, the case shall not be proceeded with until such sanction is obtained for a prosecution on the

same facts as those on which the new or altered charge is founded.

231. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court

after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon,

and examine with reference to such alteration or addition, any witness who may have been

examined, and also to call any further witness whom the Court may think to be material.

232. Effect of material error. (1) If any Appellate Court, or the [Court of Session] in the exercise of

revision or of its powers under Chapter XVII, is of opinion that any person convicted of an offence was

misled in his defence by the absence of a charge by any error in the charge, It shall direct a new trial to be

held upon a charge framed in whatever manner it thinks fit.

(2) If the Court is of opinion that the facts of the case are such that no valid charge could be preferred

against the accused in respect of the facts proved, it shall quash the conviction.

Illustration

A is convicted of an offence, under section 196 of the Pakistan Penal Code, upon a charge which omits to

state that he knew the evidence, which he corruptly used or attempted to use as true or genuine, was false

or fabricated. If the Court thinks it probable that A had such knowledge, and that he was misled in his

defence by the omission from the charge; but, if it appears probable from the proceedings that A had no

such knowledge, it shall quash the conviction.

233. Separate charges for distinct offences. For every distinct offence of which any person is accused

there shall be a separate charge, and every such charge shall be tried separately, except in the cases

mentioned in sections 234.235, 236 and 239.

Illustration

A is accused of a theft on one occasion, and causing grievous hurt on another occasion. A must be

separately charged and separately tried for the theft and causing grievous hurt.

234. Three offences of same kind within one year may be charged together. (1) When a person is

accused of more offences than one of the same kind committed within the space of twelve months from the

first to the last of such offences, whether in respect of the same person or not, he may be charged with, and

tried at one trial for, and number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with the same amount of punishment under the

same section of the Pakistan Penal Code or of any special or local low:

Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan

Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380

of the said Code, and that an offence punishable under any section of the Pakistan Penal Code or of any

special or local law shall be deemed to be an offence of the same kind as an attempt to commit such

offence, when such an attempt is an offence.

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235. Trial for more than one offence. (1) If, in one series of facts so connected together as to form the

same transaction, more offences than one are committed by the same person, he may be charged with, and

tried at one trial for, every such offence.

(2) Offence falling within two definitions. If the acts alleged constitute an offence falling within two or

more separate definitions of any law in force for the time being by which offences are defined or punished,

the person accused of them may be charged with, and tried at one trial for, each of such offences.

(3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of

which one or more than one would by itself or themselves constitute an offence, constitute when combined

a different offence, the person accused of them may be charged with, and tried at one trial for, the offence

constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts.

(4) Nothing contained in this section shall affect the Pakistan Penal Code, Section 71.

Illustrations

To sub-section (1):

(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in

whose custody B was, A may be charged with, and convicted of, offences under section 225 and 333 of the

Pakistan Penal Code.

(b) A commits house-breaking by day with intent to commit adultery, and commits in the house so entered

adultery with B's wife. A may be separately charged with, and convicted of, offences under section 454

and 497 of the Pakistan Penal Code.

(c) A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits

adultery with her. A may be separately charged with, and convicted of, offences under sections 498 and

497 of the Pakistan Penal Code.

(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the

purpose of committing several forgeries punishable under section 466 of the Pakistan Penal Code. A may

be separately charged with, and convicted of, the possession of each seal under section 473 of the Pakistan

Penal Code.

(e) With intent to cause injury to B, A institutes a criminal proceeding against him, knowing that there is

no just or lawful ground for such proceeding: and also falsely accuses B of having committed an offence,

knowing that there is no just or lawful ground for such charges. A may be separately charged with, and

convicted of, two offences under sections 211 of the Pakistan Penal Code.

(f) A, with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that

there is no just or lawful ground for such charge. On the trial A gives false evidence against B, intending

thereby to cause B to be convicted of a capital offence. A may be separately charged with, and convicted

of. offences under sections 211 and 194 of the Pakistan Penal Code.

(g) A, with six others, commits the offences of rioting, grievous hurt and assaulting a public servant

endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with,

and convicted of, offences under section 147, 325 and 152 of the Pakistan Penal Code.

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(h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them.

A may be separately charged with, and convicted of, each of three offences under section 506 of the

Pakistan Penal Code. The separate charges referred to in Illustrations (a) to (h) respectively may be tried at

the same time: To sub-section (2):

(i) A wrongfully strikes B with a cane. A may be separately charged with, and convicted of, offences under

section 352 and 323 of the Pakistan Penal Code.

(j) Several stolen sacks of corn are made over to A and B who know they are stolen property, for the

purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the

bottom of a grain pit. A and B may be separately charged with, and convicted of offences under sections

411 and 414 of the Pakistan Penal Code.

(k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in

consequence of such exposure. A may be separately charged with, and convicted of, offences under

sections 317 and 304 of the Pakistan Penal Code.

(I) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant, of an

offence under section 167 of the Pakistan Penal Code. A may be separately charged with, and convicted of,

offences under sections 471 read with 466 and 196 of the same Code. To sub-section (3):

(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged

with, and convicted of, offences under sections 323, 392 and 394 of the Pakistan Penal Code.

236. When it is doubtful what offence has been committed. If a single act or series of acts is of such a

nature that it is doubtful which of several offences the facts which can be proved will constitute, the

accused may be charged with having committed all or any of such offences, and any number of such

charges may be tried at once; or he may be charged in the alternative with having committed some one of

the said offences.

Illustrations

(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of

trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and

cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal

breach of trust or cheating.

(b) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A

states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving

false evidence, although it cannot be proved which of these contradictory statements was false.

237. When a person is charged with one offence, he can be convicted of another. (1) If, in the case

mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he

committed a different offence for which he might have been charged under the provisions of that section,

he may be convicted of the offence which he is shown to have committed although he was not charged

with it.

Illustration

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A is charged with theft. It appears that he committed the offence of criminal breach of trust, or that of

receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the

case may be) though he was not charged with such offence.

238. When offence proved included in offence charged. (1) When a person is charged with an offence

consisting of several particulars, a combination of some only of which constitutes a complete minor

offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted

of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he

may be convicted of the minor offence, although he is not charged with it.

(2-A) When a person is charged with an offence, he may be convicted of an attempt to commit such

offence although the attempt is not separately charged.]

(3) Nothing in this section shall be deemed to authorizes conviction of any offence referred to in section

198 or section 199 when no complaint has been made as required by that section.

Illustrations

(a) A is charged, under section 407 of the Pakistan Penal Code, with criminal breach of trust in respect of

property entrusted to him as a carrier. It appears that he did commit criminal breach of trust under section

406 in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of

criminal breach of trust under section 406.

(b) A is charged, under section 325 of the Pakistan Penal Code, with causing grievous hurt. He proves that

he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.

239. What persons may be charged jointly. The following persons may be charged and tried together,

namely:

(a) persons accused of the same offence committed in the courses of the same transaction;

(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such

offence.

(c) persons accused of more than one offence of the same kind, within the meaning of section 234

committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction

(e) persons accused of an offence which includes theft, extortion or criminal misappropriation, and persons

accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of

which is alleged to have been transferred by any such offence committed by the first named persons, or of

abetment of or attempting to commit any such last named offence;

(f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those

sections in respect of stolen property the possession of which has been transferred by one offence; and

(g) persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit

coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of

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abetment of or attempting to commit any such offence; and the provisions contained in the former part of

this Chapter shall, so far as may be, apply to all such charges.

240. Withdrawal of remaining charges on conviction on one of several charges. When a charge

containing more heads than one is framed against the same person, and when a conviction has been had on

one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of

the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry,

into, or trial of such charge or charges. Such withdraw shall have the effect of an acquittal on such charge

or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the

Court setting aside the conviction) may proceed with the inquiry into or trial of the charge or charges so

withdrawn.

CHAPTER XX - OF THE TRIAL OF CASES BY MAGISTRATE

241. Procedure in trial of cases. The following procedure shall be observed by Magistrate in the trial of

cases.

241-A. Supply of statements and documents to the accused. (1) In all cases instituted upon police

report, except those tried summarily or punishable with fine or imprisonment not exceeding six months,

copies of statements of ail witnesses recorded under sections 161 and 164 and of the inspection note

recorded by an investigation officer on his first visit to the place of occurrence, shall be supplied free of

cost to the accused not less than seven days before the commencement of the trial;

Provided that if any part of a statement recorded under section 161 is such that its disclosure to the accused

would be inexpedient in the public interest such part of the statement shall be excluded from copy of the

statement furnished to the accused.

(2) in ail eases instituted upon a complaint in writing, the complainant shall;

(a) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist

of the evidence which he is likely to adduce at the trial; and

(b) within three days of the order of the Court under section 204 for issue of process to the accused, file in

the Court for supply to the accused, as many copies of the compliant and any other document which it has

filed with his complaint as the number of the accused;

Provided that the provisions of this sub-section shall not apply in any case in which the complaint has been

made by a Court or by a public servant acting or purporting lo act in the discharge of his official duties.]

[242. Charge to be framed. When the accused appears or is brought before the Magistrate, a formal

charge shall be framed relating to the offence of which he is accused and he shall be asked whether he

admits that he has committed the offence with which he is charged.]

243. Conviction on admission of truth of accusation. If the accused admits that he has committed the

offence [with which he is charged] his admission shall be recorded as nearly as possible in the words used

by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict

him accordingly.

244. Procedure when no such admission is made. (1) If the Magistrate does not convict the accused

under the preceding section or if the accused does not make such admission, the Magistrate shall proceed

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to hear the complainant (if any), and take all such evidence as may be produced in support of the

prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

Provided that the Magistrate shall not be bound to hear any person as a complainant in any case in which

the complaint has been made by a Court.

(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons

to any witness directing him to attend or to produce any document or other thing.]

(3) The Magistrate may, before summoning any witness on such application, require that his reasonable

expenses, incurred in attending for the purposes of the trial, be deposited in Court:

[Provided that it shall not be necessary for the accused to deposit any such expenses in Court in case where

he is charged with an offence punishable with imprisonment exceeding six months.]

[244-A. Statement made under section 164. The statement of a witness duly recorded under section 164,

if it was made in the presence of the accused and if he had notice of it and was given an opportunity of

cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined,

be treated as evidence in the case for all purposes subject to the provisions of Evidence Act, 1872.]

245. Acquittal. (1) If the Magistrate upon taking the evidence referred to in section 244 and such further

evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks tit) examining the

accused, finds the accused not guilty, he shall record an order of acquittal.

[245-A. Procedure in case of previous convictions. In a case where a previous conviction is charged

under the provisions of section 221, subsection (7), and the accused does not admit that he has been

previously convicted as alleged in the charge, the Magistrate may, after he has convicted the accused under

section 243, or under section 245, subsection (2), take evidence in respect of the alleged previous

conviction, and, if he does so, shall record a finding thereon.]

246. [Omitted by Law Reforms Ordinance, XII of 1972, item 95].

247. Non-appearance of complainant. If the summons has been issued on complaint, and upon the day

appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be

adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore

contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to

some other day:

Provided that, where the complainant is a public servant and his personal attendance is not required, the

Magistrate may dispense with his attendance, and proceed with the case:

[Provided further that nothing in this section shall apply where the offence of which the accused is charged

is either cognizable or non-compoundable.]

248. Withdrawal of complaint. If a complainant, at any time before a final order is passed in any case

under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw

his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the

accused.

249. Power to stop proceedings when no complainant. In any case instituted otherwise than upon

complaint a Magistrate of the first class, or with the previous sanction of the [Sessions Judge, in the case of

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Judicial Magistrate and District Magistrate in the case of Executive Magistrate,] may for reasons to be

recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or

conviction, and may thereupon release the accused.

[249-A. Power of Magistrate to acquit accused at any stage. Nothing in this Chapter shall be deemed to

prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and

the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no

probability of the accused being convicted of any offence.]

FRIVOLOUS ACCUSATIONS IN [CASES TRIED BY MAGISTRATES].

250. False frivolous or vexatious accusations. (1) If in any case instituted upon complaint or upon

information given to a police officer or to a Magistrate, one or more persons is or are accused before a

Magistrate of any offence triable by a Magistrate, and the Magistrate, by whom the case is heard [....]

acquits all or any of the accused, and is of opinion that the accusation against them or any of them was

false and either frivolous or vexatious, the Magistrate may by his order of [....] acquittal, if the person upon

whose complaint or information the accusation was made is present, call upon him forthwith to show cause

why he should not pay compensation to such accused or to each or any of such accused when there are

more than one, or if such person is not present direct the issue of a summons to appear and show cause as

aforesaid.

(2) The Magistrate shall record and consider any cause which such complainant or informant may show

and if he is satisfied that the accusation was false and either frivolous or vexatious, may, for reasons to be

recorded, direct that compensation to such amount not exceeding [twenty five thousand rupees] or if the

Magistrate is a Magistrate of the third class not exceeding [two thousand and five hundred] rupees, as he

may determine, be paid by such complainant or informant to the accused or to each or any of them.

(2A) The compensation payable under sub-section (2) shall be recoverable as an arrear of land revenue.]

(2B) When any person is imprisoned under sub-section (2A), the provisions of section 68 and 69 of the

Pakistan Penal Code shall, so far as may be. apply.]

(2C) No person who has been directed to pay compensation under this section shall, by reason of such

order, be exempted from any civil or criminal liability in respect of the complaint made or information

given by him:

Provided that any amount paid to an accused person under this section shall be taken into account, in

awarding compensation to such person in any subsequent civil suit relating to the same matter.

(3) A complainant or informant who has been ordered under subsection (2) by a Magistrate of the second

or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation

exceeding fifty rupees may appeal form the order, in so far as the order relates to the payment of the

compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.

(4) When an order for payment of compensation to an accused person is made, in case which is subject to

appeal under sub-section (3), the compensation shall not be paid to him before the period allowed for the

presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and,

where such order is made in a case which is not so subject to appeal, the compensation shall not be paid

before the expiration of one month from the date of the order.

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[250-A. Special summons in case of petty offences.~(l) Any Magistrate of the first class specially

empowered in this behalf by the Provincial Government taking cognizance of any offence punishable only

with fine shall, except for reasons to be recorded in writing, issue summons to the accused requiring him

either to appear before him on a specified date in person or by an advocate or, if he desires to plead guilty

to the charge, without appearing before the Magistrate; to transmit to the before the specified date, by

registered post or through a messenger, the said plea in writing and the amount of fine specified in the

summons or, if he desires to appear by an advocate and to plead guilty to the charge, to authorize, in

writing, such advocate to plead guilty to the charge, on his behalf and to pay the fine:

Provided that the amount of the fine specified in such summons shall not be less than twenty-five per cent

nor more than fifty per cent of the maximum fine provided for such offence.

(2) Sub-section (1) shall not apply to an offence punishable under the Motor Vehicles Ordinance, 1965

(W.P. Ordinance XIX of 1965), or under any other law which provides (or the accused person being

convicted in his absence on a plea of guilty.]