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Criminal Procedure 1ACT V OF 1898

[22nd March, 1898]

An act to consolidate and amend the law relating to the Criminal Procedure.

WHEREAS it is expedient to consolidate and amend the law relating to Criminal

Procedure; It is hereby enacted as follows:-

PART I

PRELIMINARY

________

CHAPTER I

1. Short title and commencement. (1) This Act may be called the Code of Criminal

Procedure, 1898, and it shall come into force on the first day of July, 1898.

1 For Statement of Objects and Reasons, see Gazette of India, 1897, Pt. V, p.363; for Report of the Select Committee, see ibid., 1898, Pt. V, p.19;

and for Proceedings in Council, see ibid., 1897, Pt. VI, pp. 238 and 254; and ibid., 1898, pp. 22, 101 and 175.

It has been declared to be in force in- Baluchistan, by the British Baluchistan Laws Regulation, 1913 (2 of 1913), s.3 and Sch. I.

It has been extended to the Leased Areas of Baluchistan, see the Leased Areas (Laws) Order, 1950 (G.G.O. 3 of 1950); and applied in

the Federated Areas of Baluchistan, see Gazette of India, 1937, Pt. I. p. 1499. It has also been extended to the Excluded Area of Upper Tanawal other than Phulera by the N.W.F.P (Upper Tanawal) (Excluded

Area)Laws Regulation, 1950, and declared to be in force in that area with effect from 1st June, 1951, see N.W.F.P. Gazette, Extraordinary, dated

1st June, 1951. It has been applied to Phulera in the Excluded Area of Upper Tanawal to the extent the Act is applicable in the N.W.F.P., subject to

certain modifications, see N.W.F.P. (Upper Tanawal) (Excluded Area) Laws Regulation, 1950.

Extended to the added area of the North-West Frontier Province (see First Schedule to (G.G.O. 1 of 1952), with effect from the 7th February, 1952. see N.W.F.P. Gazette, 1952, Pt. I, p. 70.

It has also been extended to the added areas mentioned in First Schedule of G.G.O. 13 of 1955, see Gazette of West Pakistan, 1957,

Ext., p. 555. As to its application in certain districts on the Sindh Frontier, see the Sindh Frontier Regulation, 1872 (5 of 1872), s. 11, and the Sindh

Frontier Regulation, 1892 (3 of 1892). It has been amended in its application to-

(i) the Punjab, by the Punjab Criminal Procedure (Election Offences) Amendment Act, 1936 (Punjab Act 1 of 1936) and the

Code of Criminal Procedure (Punjab Amdt.) Act, 1940 (Punjab Act 11 of 1940), Punjab Ordinance 9 of 1971, and the Punjab Ordinance 10 of 1992. ;

The Code of Criminal Procedure, 1898 (Act V of 1898) has been amended by the Law Reforms Ordinance, 1972, (XII of 1972). The

dte of enforcement of the provisions of the Law Reforms Ordinance, 1972 except those relating to separation of Judiciary in the different Provinces are as follows:-

1. In the Punjab 26-12-1975

2. In N.W.F.P. (Except Tribal Areas) 26-12-1975 3. In Sind 24-12-1975

4. In Quetta Town, Cantonment Areas and Nasirabad District of

Baluchistan. 23-12-1975

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2. Extent. It extends to 1[the whole of Pakistan]; but, in the absence of any specific

provision to the contrary, nothing herein contained shall affect any special or local law now in

force, or any special jurisdiction or power conferred, or any special form of procedure prescribed,

by any other law for the time being in force.

2* * * * * * *

2. [Repeal of enactments, notifications, etc., under repealed Acts, Pending cases]:

Repealed by the Repealing and Amending Act, 1914 (X of 1914).

3. References to Code of Criminal Procedure and other repealed enactments (1) In

every enactment passed before this Code comes into force in which reference is made to, or to any

Chapter or section of the Code of Criminal Procedure, Act XXV of 1861 or Act X Of 1872, or Act

X of 1882, or to any other enactment hereby repealed, such, reference so far as may be practical

be taken to be made to this Code or to its corresponding chapter or section.

(2) Expressions in former Acts: In every enactment passed before this Code comes into

force, the expressions "Officer exercising (or 'having') the powers (or the full powers) of a

Magistrate," “Subordinate Magistrate First Class" and "Subordinate Magistrate, Second lass" shall

respectively be deemed to mean "Magistrate of the First class", "Magistrate of the Second Class"

and Magistrate of the Third Class" 4[***]3[***]And the expression “joint Sessions Judge” shall

mean "Additional Sessions Judge".

(ii) N.W.F.P., by the Criminal Procedure (Election Offences) (N.W.F.P. Amdt). Act, 1937 (N.W.F.P. Amdt.) Act, 1940

(N.W.F.P. Act 8 of 1940);

(iii) The Province of West Pakistan by West Pakistan Act No. 11 of 1963, s.2 (with effect from the 12th July, 1963) West Pakistan Act No. 17 of 1964, s.2 (with effect for the 1st April, 1964) the West Pakistan Act 8 of 1968, and West Pakistan Ordinance

33 of 1969; and

(iv) The Provisions of the Law Reforms Ordinance, 1972 (12 of 1972), relating to amendments in the Code of Criminal Procedure, 1898 (5 of 1898), enforced w.e.f. 26-12-75 in Punjab and N.W.F.P. (except tribal areas), w.e.f. 24-12-75 in sind w.e.f. 23-

12-75 in quetta town cantonment area and Nasirabad district of Baluchistan. 1Subs. By the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch., for “all the Provinces and the capital of the

federation”, which had been subs. By A.O., 1949, Arts. 3(2) and 4, for “the whole of British India”. 2 the words “or shall apply to”, the original clauses (a), (b) and (c), and the proviso following as amended by the Devolution Act, 1920

(38 of 1920), s.2 and Sch. I, and A.O., 1937, omitted by A.O., 1949, Sch. 3 The words and quotations ‘the expression “Magistrate of Police” shall be deemed to mean “Presidency Magistrate,”, omitted ibid. 4 Omitted by ord. 37 of 2001, s.2 (w.e.f. 14-8-2001).

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4. Definitions: (1) In this Code the following words and expressions have the following

meanings, unless a different intention appears from the subject or content:-

(a)"Advocate-General”: "Advocate-General” includes also a Government Advocate or,

where there is no Advocate-General or Government Advocate, such officer as the

Provincial Government may, from time to time, appoint in this behalf.

(b) "Bailable offence, "non-bailable offence": "Bailable offence" means an offence

shown as bailable in the Second Schedule or which is made bailable by any other

law for the time being in force; and "non-bailable offence means any other offence.

(c) Charge: "Charge" includes any head of charge when the charge contains more than

one.

2* * * * * * *

3* * * * * * *

(d) [Rep. by Act (XI of 1923), section 3 and Schd. I]

(e) [Omitted by Law Reforms Ordinance (XII of 1972), Schd. Item I].

(f) ''Cognizable offence" , "cognizable case": "Cognizable offence" means an offence

for, and cognizable case" means a ease in which a police officer, may, in accordance

with the second Schedule or under any law for the time being in force, arrest without

warrant.

5* * * * * * *

(h) .''Complaint”: Complaint means the allegation made orally or in writing to a

Magistrate, with a view to his taking action, under this Code that some person

whether known or unknown, has committed an offence, but it does not include the

report of a police officer.

6* * * * * * * 7[(j) "High Court": "High Court" means the highest Court of criminal appeal or revision

for a province,

1Subs. by A.O., 1937, for “L.G.”.

2 Clause (d) rep. by the Repealing and Amending Act, 1923 (11 of 1923), s.3 and Sch. II. 3 Clause (e) omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. Enforced in Punjab. w.e.f. 26-12-1975, see, Punjab Govt. Notifin. No. Judl. 1-3 (2)/75, dated 26-12-75, Ext., P.1419.

Enforced in N.W.F.P. w.e.f 26-12-75, see, the N.W.F.P. Govt. Notifin. No. S.O. Judl. Misc. (HD)/75, dated 30-12-75, Ext., P.484a.

Enforced in Sind, w.e.f. 23-12-75, see, Sind Govt. Notifin. No. S. Legis-4 (8)/75, dated 23-12-75, Ext. p. 1327-A.

Enforced in Baluchistan, w.e.f. 23-12-75, see, Baluchistan Govt. Notifin. No. Legis-3/15/Law/75, dated 23-12-75, Ext., Issue No. 70. 4 The word “within or without the presidency-towns,” omitted by A.O., 1949, Sch. 5 Clause (g) defining “Commissioner of Police” omitted, ibid. 6 Clause (i) defining “European British subject” which was subs. by the Criminal Law Amendment Act, 1923 (12 of 1923), s.2. (1),

for the original clause (i) has been omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (2 of 1950), Sch. 7 Subs. by A.O., 1964, Art. 2 and Sch. for Clause (j) which had been subs. by Act 2 of 1950, Sch., for the original clause, as amended from time to time.

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(k) Inquiry": "Inquiry" includes every inquiry other that a trial conducted under this

Codeby a Magistrate or Court.

(l) "Investigation": -Investigation" includes all the proceedings under this Code for the

collection of evidence conducted by a police officer or by any person (other than a

Magistrate) who is authorised by a Magistrate in this behalf.

(m) “Judicial Proceeding": "Judicial proceeding" includes any proceeding in the course

of which evidence is or may be legally taken on oath.

5[(m-a) "Magistrate" means a Judicial Magnate and includes a Special Judicial

Magistrate appointed under Sections 12 and 14.

(n) "Non-cognizable offence," "Non-cognizable case": "Non-cognizable offence means

an offence for, and "non-cognizable case" means a case in which a police officer, 1 * * * may not arrest with our warrant.

(o) "Offence": "Offence" means any act or omission made punishable by any law for the

time being in force; it also includes any act in respect of which a complainant may

be made under Section 20 of the Cattle Trespass Act, 1871.

(p) "Officer incharge of a police station": "Officer incharge of a police station" induces

when the officer incharge of the police station is-absent from tile station house or

unable from illness or cause to perform his duties, the police officer present at the

station house who is next in rank to such officer and is above the rank of constable

or when the 2Provincial Government so directs, any other police officer so present.

(q) "Place": "Place" includes also a house, building, tent and vessel.

(r) "Pleader": "Pleader" used with reference to any proceeding in any Court means a

pleader or 3[a mukhtar] authorised under any law4 for the time being in force to

practise in such Court, and includes (1) an advocate, a vakil and an attorney of a

High Court so authorised and (2) any other person appointed with permission of

the court to act in such proceeding.

1The word “within or without a presidency-town” omitted by A.O., 1949, Sch. 2 subs. by A.O., 1937, for “L.G.”. 3 Ins. By the code of criminal procedure (further amendment) Act, 1923 (35 of 1923), s.2. 4 See the legal Practitioners Act, 1846 (1 of 1846); the Legal Practitioners Act, 1853 (20 of 1853); the legal practitioners Act, 1879 (18 of 1879);

(Amendment) Act, 1908 (1 of 1908); and act, xxxv of 1973.

In Baluchistan, see s. 20 (1) (c) of the Sch. to the British baluchistan criminal justice regulation, 1896 (8 of 1896); in the N.W.F.P., see s.9 of the N.W.F.P. Law and Justice Regulation , 1901 (7 of 1901) and the rules issued under that section in Gazette of India, 1902, Pt. II, p.5. 5 Ins. by ord. 37 of 2011, s.3 (w.e.f. 14-8-2001).

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(s) “Police station”: “Police Station” means any post or place declared, generally or

specially, by the 1Provincial Government to be a police station, and includes any

local area specified by the Provincial Government in this behalf.

(t) “Public Prosecutor”: "Public Prosecutor” means any person appointed under Section

492, and includes any person acting under the directions of a Public Prosecutor and

any person conducting a prosecution on behalf of 2[the State] in any High Court in

the exercise of its original criminal jurisdiction.

(u) “Sub-division”: Sub-division means a sub-division of a district. 3* * * * * * *

(2) Words referring to acts: Words which refer to acts done, extend also to illegal

omissions; and

Words to have same meaning as in Pakistan Penal Code: All words and expressions

used herein and defined in the Pakistan Penal Code (XLV of 1860), and not herein before defined,

shall be deemed to have the meanings respectively attributed to them by that Code.

5. Trial of offences under Penal Code-(1) All offences, under the Pakistan Penal Code

Shall be investigated, enquired into, tried, and otherwise dealt with according to the provisions

hereinafter contained.

(2) Trial of offences against other laws: All offences under any other law shall be

investigated, enquired into, tried, and otherwise dealt with according to the same provisions, but

subject to any enactment for the time being in force regulating the manner or place of investigating,

inquiring into, trying or otherwise dealing with such offences.

___________________________________________________________________________ 1 Subs. by A.O., 1937, for “L.G.”. 2 Subs. by A.O., 1961, Art. 2 and Sch., for “Her Majesty” (with effect from the 23rd March, 1956). 3 Clauses (v) and (w), omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For the enforcement of this amendment in the Provinces, see, para 2 of foot-note 3 on p. 40 supra.

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PART II

CONSTITUTION AND POWER OF CRIMINAL COURTS AND OFFICES

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CHAPTER II

OF THE CONSTITUTION OF CRIMINAL COURTS AND OFFICES

A.- Classes of Criminal Courts

5[6.-Classes of Criminal Courts and Magistrates.-(1) Besides the High Courts and the

Courts constituted under any law other than this Code for the time being in force, there shall be

two classes of Criminal Courts in Pakistan, namely:-

I. Courts of Session;

II. Courts of Magistrate.

6[(2) These shall be the following classes of Magistrate, namely:-

(i) Magistrate of the first class;

(ii) Magistrate of the second class; and

(iii) Magistrate of the third class.]

B.-Territorial Divisions

7. Sessions divisions and districts.-(1) 1[Each Province] shall consist of sessions

divisions; and every sessions division shall, for the purposes of this Code, be a district or consist

of districts.

(2) Power to alter divisions and districts. The 2[Provincial Government] may alter3 the

limits or 4* * * the number of such divisions and districts.

1 Subs. by Ordinance 21 of 1960, s.3 and 2nd. Sch., (with effect from the 14th October, 1955), for the words. Every province shall be a sessions divisions, or”, as amended by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s.3 and Sch II. 2 Subs. by A.O., 1937, for “L.G.”. 3For notifications, see the different local Rules and Orders. 4 The words “with the previous sanction of the Governor General in Council” rep. by Devolution Act, 1920 (38 of 1920), s.2 and Sch. I. 5 Subs. by Ord. 12 of 1972, s.2 and Sch. as amended by Act 23 of 1997. 6 Subs. by ord. 37 of 2001, s.4 (w.e.f. 14-8-2001).

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(3) Existing divisions and districts maintained till altered. The sessions divisions and

districts existing when this Code comes into force shall be sessions divisions and districts

respectively, unless and until they are so altered.

1* * * * * * *

8. Power to divide districts into sub-divisions.-(1) The 2Provincial Government may

divide3 any district into sub-divisions, or make any portions of any such district a subdivision

and may alter the limits of any sub-division. 5***

C.- Courts and Offices 4* * *

9. Court of Session: (1) The Provincial .Government shall establish a Court of Sessionfor

every sessions division, and appoint a Judge of such Court.

(2) The 2[Provincial Government] may, by general or special order in the official Gazette,

direct at what place or places the Court of Session shall hold its sitting; but, until such order is

made, the Courts of Session shall Hold their sittings as heretofore.

(3) The 2[Provincial Government] may also appoint Additional Sessions Judges and

Assistant ,Sessions Judges to exercise jurisdiction in one or more such Courts. '

(4) A Sessions Judge of one sessions division may be appointed by the 2[Provincial

Government] to be also an Additional Sessions Judge of another division, and in such case he may

sit for the disposal of case at such place or places in either division as the Provincial Government

may direct.

(5) All Courts of Session existing when this Code comes into force shall be deemed

to have been established under this Act.

612. Subordinate Magistrates.-(1) The 2[Provincial Government] may appoint as many

persons as it thinks fit to be Magistrates of the first, second or third class in any district 7* * *; and

may, from time to time, define focal areas within which such persons may exercise all or any of

the powers, with which they may respectively be invested under this Code.

(2).Local limits of their Jurisdiction. Except as otherwise provided by such definition,

the jurisdiction and powers of such persons shall extend throughout such district.

1 Sub-section (4) rep. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s. 3 and Sch. II. 2 Subs. by A.O., 1937, for “L.G.”. 3 For notifications, see the different local Rules and Orders. For notification directing that-

(i) Phulera in the Area of the Upper Tanawal in the North West Frontier Province, shall form part of the Mansehra. Sub-

Division in the Hazara District, see N.W.F.P. Govt. Gazette, 1952, Pt. I, p. 305; and (ii) the districts in the first column of the table therein shall be divided into the sub-division, see Gazette of Sindh, 1954, Pt. I,

pp. 499 and 525. 4The words “outside the presidency-towns” rep. by Act 26 of 1951, s.3 and Sch. II. 5ommitted by ord. 37 of 2001, s.5 (w.e.f. 14-8-2001). 6 For notification under this section, see Gaz. Of P., 1957, Pt, VI, p. 175. 7 The words “outside the presidency-towns” omitted by A.O., 1949, Sch.

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14. Special Judicial 5** Magistrate.-(1) The Provincial Government may, on the

recommendation of the High Court, confer upon any person 5[including a former Executive

Magistrate] all or any of the powers, conferred, or conferrable by or under this Code on a judicial

Magistrate in respect to particular cases or to a particular class or particular classes of cases, or in

regard to cases generally in any local area.

(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for

such term as the Provincial Government may, in consultation with the High Court, by general or

special order, direct.

5[14A. Appointnment of Special Migistrates.-(1)notwithstanding anything contained in

this Code or any other law for the time being in force or any judgement of any court including

superior courts, the Provincial Government may appoint Special magistrates with the powers of a

Magistrate First ClassExclusively for the trial of offences relating to price control under any

Provincial law of Federal law for the time being in force.

(2) The Provincial Government or any officer authorized by the Provincial Governemnt in

this behalf may, from time to time, define local areas within which such magistrates may exercixe

all or any of the powers with which they may respectively be invested under any Provincial law of

Federal law relating to price control.]

15. Benches of Magistrates.-(1) The Provincial Government may direct any two or more 4[Judicial Magistrates] in any place 2* * * to sit together as a Bench, an may by order invest such

Bench with any of the powers conferred or conferrable by or under this Code on a Magistrate of

First, Second or Third Class, and direct it to exercise such powers in such cases, or, such classes

only, and within such local limits, as the 1[Provincial Government] thinks fit.

(2) Powers exercisable by Bench in absence of special direction. Except as otherwise

provided by any order under this section, every such Bench shall have the powers conferred by

this Code on a Magistrate of the highest class to which any one of its members, who is present

taking part in the proceedings as a member of the Bench, belongs, and as far as practicable shall,

for the purposes of this code, be deemed to be a Magistrate of such class.\

1 Subs. by A.O., 1937, for “L.G.”. 2 The words “outside the presidency-towns” omitted by A.O., 1949, Sch. 3 The words “with the previous sanction of the G.G. in C.” rep. by the Devolution Act, 1920 (38 of 1920), s. 2 and Sch. I. 4 Subs. by ord. 12 of 1972, s.2 and Sch. 5 Omitted & Ins. by ord. 37 of 2.

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16. Power to frame rules for guidance of Benches. The 1[Provincial Government] may 3[:], from time to time make rules2 consistent with this Code for the guidance of 5[all Magistrates

and] Magistrates’ Benches in any district respecting the following subjects:-

(a) the classes of cases to be tried;

(b) the times and places of sitting;

(c) the constitution of the Bench for conducting. Trials;

(d) the mode of settling differences of opinion which may arise between the

Magistrates in session[:]4

(e) 5[The mode and manner of conduting raid and trial on the spot].

17. Subordination of Magistrates and Benches to Sessions Judge.-(1) All Magistrates

appointed under section 12, 13 and 14 and all Benches constituted under section 15, shall be

subordinate to the Sessions Judge and he may, from time to time, make rules or give special orders

consistent with this Code and any rules framed by the Provincial Government under Section 16,

as to the distribution of business among such Magistrates and Benches.

(3) Subordination of Assistant Sessions Judges to Sessions Judge. All Assistant

Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise

jurisdiction, and he may, from time to time, make rules consistent with this code as to the

distribution of business among such Assistant Sessions Judges.

(4) The Sessions Judge may also, when he himself is unavoidably absent or incapable of

acting, make provision for the disposal of any urgent application by an Additional or Assistant

Sessions Judge or, if there be no Additional or Assistant Judge, by [4***] such Judge or Magistrate

shall have jurisdiction to deal with any such application. 4***

D------Courts of Presidency Magistrates.

18 to 21. [Appointment of Presidency Magistrates, Benches, Local limits of

Jurisdiction. Chief Presidency Magistrate.] Omitted by A.O., 1949, Sch.

1 Subs. by A.O., 1937, for “L.G.”. 2 For rules, see the different local Rules and Orders. 3 Omitted & Subs. by ord. 12 of 1972, s.2 & Sch. 4 Omitted by Ord. 37 of 2001, s.4 (w.e.f. 14-8-2001). 5Ins. subs. added by Act III of 2006, & .21.

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E.----Justices of the Peace

1[22. Appointment of Justices of the Peace. The Provincial Government may, by

notification in the official Gazette, appoint for such period as may be 'specified in the notification,

and subject to such' rules as may be made-by it any person who is a citizen of Pakistan and as to

whose integrity and suitability it satisfied to be a justice of the peace for a local area to be specified

in the notification, and more than one Justice of the Peace may be appointed for the same local

area.

22A. Powers of Justices of the Peace.-(1) A Justice on the Peace for any local area shall,

for the purpose of making an arrest have within such area all the powers of a police officer referred

to in section 54 and an officer-in-charge of a police station referred to in section 55.

(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1)

shall, forthwith, take or cause to be taken the person arrested before the officer incharge of the

nearest police station and furnish such officer with a report as to the circumstances of the arrest

and such officer shall thereupon re-arrest the person.

(3) A Justice of the Peace for any local area shall have powers, within such area, to

call upon any member of the police force on duty to aid him-

(a) in taking or preventing the escape of any person who has participated in the

commission of any cognizable offence or against whom a reasonable complaint has

been made or credible information has been received or a reasonable suspicion

exists of his having so participated; and

(b) in the prevention of crime in general and, in particular, in the prevention of a

breach of the peace or a disturbance of the public tranquillity.

(4) Where a member of the police force on duty has been called upon to render and aid

under sub-section (3), such call shall be deemed to have been made by a competent authority.

(5) A Justice of the Peace for any local area may, in accordance with such rules as may

be made by the Provincial Government,-

(a) issue a certificate as to the identity of any person residing within such area,

or 1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for section 22, which has previously been amended by various

enactments.

Enforced in the Punjab w.e.f 20-12-82, see, Punjab Govt. Notification. Enforced in Sind w.e.f. 21-12-80, see, Sind Govt. Notification No. VII (488) S.O.J/79, dated 21-12-80, Sind Gazette of 1980, Ext., Pt.

I, p. 945-A, section 22, clauses (a), (b) and (c) of sub-section 5 of section 22 and clauses (a) and (b) of section 22-B have been enforced.

Enforced in Baluchistan w.e.f 1-2-83, see the Baluchistan Gazette, dated 6-2-83, Pt. I. p.2. Section 22, clauses (a), (b) and (c) of sub-section 5 of session 22-A and clauses (a) and (b) of section 22-B have been enforced.

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(b) verify any document brought before him by any such person, or

(c) attest any such document required by or under any law for the time being in force

to be attested by a Magistrate,

and until the contrary is proved, any certificate so issued shall be presumed to be correct

and any document so verified shall be deemed to be duly verified, and any document so attested

shall be deemed to have been as fully attested as if he had been a Magistrate.

71(6) An ex-officio Justice of the Peace may issue appropriate directions to the police

authorities concerened on a complaint regarding-

(i) non-registration of a criminal case;

(ii) transfer of investigation from one police officer to another

(iii) neglect, failure or excess commited by a police authority in relation to its

function and duties.]

22B. Duties of Justices of the Peace. Subject to such rules as may be made by the

Provincial Government, every Justice of the Peace for any local area shall-

(a) on receipt of information of the occurrence of any incident involving a breach of

the peace, or of the commission of any offence within such local area, forthwith

make inquiries into the matter and report in writing the result of his inquiries to the

nearest Magistrate and to officer incharge of the nearest Police Station;

(b) if the offence referred to in clause (a) is a cognizable offence, also prevent the

removal of anything from, or the interference in any way with, the place of

occurrence of the offence;

(c) when so required in writing by a police officer making an investigation under

Chapter XIV in respect of any offence committed within such local area,-

(i) render all assistance to the police officer in making such an investigation;

(ii) record any statement made under expectation of death by a person in

respect of whom a crime is believed to have been committed.

23 and 24. [Justice of the Peace for the Presidency-towns. Present Justices of Peace.]

Rep. by the Criminal Law Amendment Act, 1923 (XII of 1923), s.4.

7[25. Ex-Officio Justices of the Peace. By virtue of their respective officers, the Sessions

Judges and on nomination by them, the Additional Sessions Judges, are Justices of the Peace

within and for the whole of the District of the Province in which they are serving.] 1 Added & subs. by ord. 131 of 02, s.2.

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F-----Suspension and Removal

26 and 27. [Suspension and removal of Judges and Magistrates. Suspension and removal

of Justices of the Peace] Rep. by A.O. 1937.

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CHAPTER III POWERS OF COURTS

A-Description of offences cognizable by each Court.

28. Offences under Penal Code. Subject to the other provisions of this Code any offence

under the Pakistan Penal Code(XLV of 1860) may be tried-

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such offence is shown in the eighth column of the

Second Schedule to be triable.5[:]

Illustration

A is 1[tried by] the Session Court on a charge of culpable homicide. He may be convicted

of voluntarily causing hurt, and offence triable by a Magistrate.

29. Offences under other laws.-(1) Subject to the 2[other provisions of this Code], any

offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried

by such Court.

(2) When no Court is so mentioned, it may be tried by the High Court or 3[subject as

aforesaid] by any Court constituted under this Code by which such offence is shown in the eighth

column of the Second Schedule to be triable. 5[:]

4[29A. Trial of European British subjects by second and third class Magistrates.] Omitted

by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (II of 1950).

5[29B. Jurisdiction in the cases of juveniles. Any offence, other than one punishable

with death or imprisonment for life, committed by any person who at the date when he appears or

is brought before a Court is under the age of fifteen years, may be tried by any Judicial Magistrate

specially empowered by the Provincial Government to exercise the powers conferred by Section

8, sub-section (1) of the Reformatory School Act, 1897, or, in any area in which the said Act is not

applicable, by any other law providing for the custody, trial or punishment of youthful offenders,

by any Magistrate empowered by or under such law to exercise all or any of the powers conferred

thereby].

1Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “committed to”.

For enforcement of this amendment in the Provinces, see para 2 of foot-note 3 on p. 40, supra. 2 Subs. b the Criminal Law Amendment Act, 1923 (12 of 1923), s.5, for “provisions of s.447”. 3 Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s.5. 4 S. 29A was ins. by Act 12 of 1923, s.6. 5 Subs. & Ins. by ord. XII of 1972, s.2 & Sch. as amended.

13

16[30. Offences not punishable with death: Notwithstanding anything contained in

Sections 28 and 29, the Provincial Government may invest any Magistrate of the First Class with

power to try as a Magistrate all offences not punishable with death.]

B.-Sentences which may be passed by Courts of various Classes.

31. Sentences which High Court and Sessions Judges may pass.-(1) High Court may

pass any sentences Authorised by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by

law; but any sentence of death passed by any such Judge shall be subject to confirmation by the

High Court.

(3) An Assistant Session Judge may pass any sentence authorised by law, except

a sentence of death or of 1* * * imprisonment for a term exceeding seven years.

32. Sentences which Magistrates may pass.-(1) The Courts of Magistrates may pass

the following sentences namely:

(a) Courts 2* * * of Magistrates of the first

class:

Imprisonment for a term not exceeding 3[Three Years] including such solitary

confinement as is authorized by law; Fine not

exceeding 4[forty five thousands] rupees; 8[assh; daman;] whipping.

(b) Courts of Magistrates of the second class:

Imprisonment for a term not exceeding 5[one

year], including such solitary confinement as

is authorized by law;

Fine not exceeding 6[fifteen thousands]

rupees; 7* * *

1 The words “transportation for a term exceeding seven years or of” rep. by the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch., (w.e.f. 13-4-72). 2 The words “of Presidency Magistrates and” omitted by A.O., 1949, Sch., 3 Subs. by Ordinance 12 of 1972, s.2 and Sch., for “two years”. 4 Subs. by the Code of Criminal Procedure (Amdt.) Ordinance, 1982 (25 of 1982), s.2 for “five thousands”. 5 Subs. by Ordinance 12 of 1972, s.2 and Sch., for “six months”. 6Subs. by Ordinance 25 of 1982, s.2, for “one thousand”. 7 The words “whipping (if specially empowered)” rep. by the whipping Act, 1909 (4 of 1909), s.8 and Sch. 8 Ins. by Act, II of 1997, s.11.

14

(c) Courts of Magistrates of the third class: Imprisonment for a term not exceeding one

month ; Fine not exceeding 7[three thousand]

rupees.

(2) The Court of any Magistrate may pass any lawful sentence, combining any of the

sentence which it is authorised by law to pass. 2* * * * * * *

33. Power of Magistrates to sentence to imprisonment in default of fine.-(1) The

Court of any Magistrate may award such terms of imprisonment in default of payment of fine as

is authorised by law in case of such default:

Proviso as to certain cases:- Provided that—

(a) the term is not excess of the Magistrate’s powers under this Code;

(b) in any case decided by a Magistrate where imprisonment has been awarded as part

of the substantive sentence, the period of imprisonment awarded in default of

payment of the fine shall not exceed one-forth of the period of imprisonment which

such Magistrate is competent to inflict as punishment for the offence otherwise than

as imprisonment in default of payment of the fine.

(2) The imprisonment awarded under this section may be in addition to a substantive

sentence of imprisonment for the maximum term awarded by the Magistrate under Section 32.

34. Higher powers of certain. The court of a Magistrate, specially empowered under

Section 30, may pass any sentence authorized by law, except a sentence of death or of3* * *

imprisonment for a term exceeding seven years.

34A. 4[Sentence which courts and Magistrates may pass upon European British subjects]

Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949(II of 1950),

Sch.

35. Sentence in case of conviction of several offences at one trial.-(1) 5[When a person

is convicted at one trial of two or more offences, the Court may, subject to the provisions of section

71 of Pakistan Penal Code(XLV of 1860)] sentence him, for such offences, to the several

punishments prescribed therefore which such court is competent to inflict; such punishments, when

consisting of imprisonment 6* * * to commence the one after the expiration of the other in such

order as the court may direct, unless the court directs that such punishments shall run concurrently. 1 Subs. by the Code of Criminal Procedure (Amdt.) Ordinance, 1982 (25 of 1982), s.2, for “fifty”. 2 Sub-section (3), rep. by the whipping Act, 1909 (4 of 1909), s.8 and Sch. 3 The words “transportation for a term exceeding seven years or” omitted by the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch.,

(w.e.f. 13-4-72). 4 Ins. by the Criminal Law Amdt. Act, 1923 (12 of 1923), s.7. 5Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) , s.7, for “when a person is convicted at one trial of two or more

distinct offences, the Court may”. 6 The words “or transportation” omitted by Act 25 of 1974, s.2 and Sch., (w.e.f. 13-4-72). 7 Subs. by Ord. 85 of 02, s.3.

15

(2) In the case of consecutive sentences, sentences, it shall not be necessary for the Court,

by reason only of the aggregate punishment for the several offences being in excess of the

punishment which it is competent to inflict on conviction of a single offence, to send the offender

for trial before a higher Court:.

Maximum term of punishment: Provided as follows:-

(a) in no case shall person be sentenced to imprisonment for a longer period

than 14 years;

(b) if the case is tried by a Magistrate, the aggregate punishment shall not

exceed twice the amount of punishment which he is, in the exercise of his

ordinary jurisdiction, competent to inflict.

(3) For the purpose of appeal, 1[the aggregate of consecutive sentence passed under this

section in case of conviction for several offences at one trial shall be deemed to be a single

sentence. 2* * * * * * *

C.-Ordinary and Additional Powers

36. Ordinary Powers of Magistrates. All 4[Judicial and Executive] Magistrates have the

powers hereinafter respectively conferred upon them and specified in the Third Schedule. Such

powers are called “their ordinary powers”.

5[37. Additional powers conferrable on Magistrates. On the recommendations of the

High Court, the Provincial Government may, in addition to the ordinary powers, invest any

Magistrate with any powers specified in the Fourth Schedule.]

D.—Conferment, Continuance and Cancellation of Powers

38. 5***

39. Mode of conferring powers.-(1) In conferring powers under this Code the 3[Provincial

Government] may by order empower persons specially by name, or in virtue of their office or

classes or officials generally by their official titles.,

(2) Every such order shall take effect from the date on which it is communicated to the

person so empowered.

1 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.7, for “aggregate”. 2The explanation and illustration to section 35, rep. ibid. 3 Subs. by A.O., 1937, for “L.G.”. 4 Omitted & subs. by Ord. 12 of 1972, s.2 & Sch. 5 Omitted by Ord. 37 of 2001, ss.17-19(w.e.f. 14-8-2001).

16

40. Powers of officers appointed. Whenever any person holding an office in the service

of Government who has been invested with any powers; under this Code throughout any local area

is 1[appointed] to an equal or higher office, of the same, nature, within a like local area under the

same 2[Provincial Government], he shall, unless the 2[Provincial Government] otherwise directs,

or has otherwise directed, 3* * * exercise the same powers in the local area 4[in which] he is so 1[appointed].

7[41. Withdrawal of Powers. The Provincial Government may on the recommendations

of the High Court, withdraw all or any power conferred by it under this Code on any person or

Magistrate.].

PART III

GENERAL PROVISIONS

______

CHAPTER IV

OF AID AND INFORMATION TO THE MAGISTRATES, THE POLICE AND PERSONS

MAKING ARRESTS

42. Public when to assist Magistrates and Police: Every person is bound to assist a

Magistrate [Justice of the Peace] or police officer reasonably demanding his aid, 5* * *,-

(a) in the taking or preventing the escape of any other person whom such Magistrate;

or police officer is authorized to arrest;

(b) in the prevention or suppression of a breach of the peace, or in the-prevention of

any injury attempted to be committed to any railway, canal, telegraph or public

property.

43. Aid to person, other than police officer, executing warrant. When a warrant is

directed to a person other than a police officer, any other person may aid in the execution of such

warrant if the person to whom the warrant is directed be hear at hand and acting in the execution

of the warrant.

1 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 8, for “transferred”. 2 Subs. by A.O., 1937, for “L.G.”. 3 The words “continue to” rep. by Act 18 of 1923, s.8. 4 Subs. ibid., for “to which”. 5 The words “whether within or without the presidency-towns” omitted by A.O., 1961, Art.2 and Sch. (with effect from the 2nd March, 1956). 6 Subs. added & Ins. by Ord. 12 of 1972, s.2 & Sch. 7 Omitted by Ord. 37 of 2001, s.16 (w.e.f. 14-8-2001).

17

44. Public to give information of certain offences.-1[(1) Every person, aware of the

commission of or of the intention of any other person to commit any offence punishable under any

of the following sections of the Pakistan Penal Code, namely, 121,121-A, 122. 123.123-A.

124,124-A, 125, 126, 130, 143, 144, 145, 147, 148, 153-A, 161, 162, 163, 164, 165. 168, 170, 231,

232, 255, 302, 303, 304, 304,304-A, 364-A, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402. 435,

436, 449, 450, 456, 457, 458, 459, 460 and 489-A, shall, in the absence of reasonable excuse, the

burden of proving which shall lie upon the person so aware, forthwith give information to the

nearest Magistrate 7[Justice of the Peace] or police officer of such commission or intention.]

(2) For the purposes of this section the term “offence” includes any act committed at any

place out of 2[Pakistan] which would Constitute an offence if committed in 2[Pakistan.]

45. Village Headman, accountant, landholders and others bound to report certain

matters.-(1) Every village headman, village accountant,; village watch man, village police officer,

owner or occupier of land, and the agent of any such owner or occupier 3[in charge of the

management of that land] and every officer employed in the-collection of revenue or rent of land

on he part of 4[the 5[Government]] or the Court of Wards, shall forthwith communicate to the

nearest Magistrate, 7[Justice of the Peace] or to the officer incharge of the nearest police station

whichever is the nearer, any information which may 6[possess] respecting-

(a) the permanent or temporary residence of any notorious receiver or vendor of stolen

property in any village of which he is headman, accountant, watch man or police-officer

or in which, he owns or occupies land, or is agent, or collects revenue or rent;

(b) the resort to any place within or the passage through such village of any person onwhom

he knows or reasonably suspect to be a thug, robber, escaped convict or proclaimed

offender;

(c) the commission of or intention to commit, in or near such village any non-boilable

offence or any offence punishable under Sections 143, 144, 145, 147 or 148 of the

Pakistan Penal Code(XLV of 1860) ;

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for sub-section (1) which was amended by A.O., 1949, Sch.

For the enforcement of this amendment in the Provinces, see para. 2 of footnote 3, p.40, supra. 2 Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, Arts. 3(2) and 4, for “British India”. 3 Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.9. 4 Subs. by A.O., 1937, for “Govt.”. 5 Subs. by A.O., 1961, Art.2, for “Crown” (with effect from the 23rd March, 1956). 6Subs. by Act 18 of 1923, s.9, for “obtain”. 7 Ins. by Ord. 12 of 1972, s.2 & Sch.

18

(d) the occurrence in or near such village of any sudden or unnatural death or of any

death under suspicious circumstances; 1[or the discovery in or near such-village of

any corpse or part of a corpse. In circumstances which read to a reasonable

suspicion that such a death has occurred or the disappearance from such village of

any person in circumstances which lead to a reasonable suspicion that a non-

bailable offence has been committed in respect of such person;]

(e) the commission of or intention to commit, at any place out of 2[Pakistan] near such

village any act which, if committed in 2[Pakistan], would be an offence punishable

under any of the following sections of the Pakistan Penal Code(XLV of 1860)

namely 1[231, 232, 233, 234. 235, 236, 237, 237, 238,] 302, 304, 382, 392, 393,

394, 395, 396, 397, 398, 399, 402, 435, 436, 449. 450, 457, 458, 459, 3[460, 489A,

489B, 489C and 489D];

(f) any matter likely to affect the maintenance of order or the prevention of crime or

the safety of person or property, respecting which 5[any officer authorised by the

Provincial Government] by general or special order made with the previous

sanction of the 4[Provincial Government], has directed him to communicate

information-

(2) In this section-

(i) “village” includes village–lands; and

(ii) the expression “proclaimed offender” includes any person proclaimed as an

offender by any Court or

1Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.9. 2 Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”. Which had been subs. by A.O., 1949, Arts. 3(2) and 4, for “British India”. 3 Subs. by Act 18 of 1923, s.9, for “and 460”. 4 Subs. by A.O., 1937, for “L.G.”. 5 Subs. by Ord. 37 of 2001, s. 21 (w.e.f. 14-8-2001).

19

authority established or continued by the 1[Federal Government] 2* * * in any part

of 3[Pakistan], in respect of, any Act which if committed in 4[Pakistan], would be

punishable under any of the following sections of the Pakistan Penal Code(XLV of

1860), namely, 302, 304, 362 392, 393, 394, 395, 396, 397, 398, 399, 402, 435,

436, 448, 450, 457, 458, 459and 460.

(3) Appointment of village-headmen in certain cases for purposes of this section.

Subject to rules in this behalf to be made by the 5[Provincial Government], the 9[District officer

(Revenue)] from time to time appoint one or more persons 6[with his or their consent] 7[to perform

the duties of a village-headman under this section whether a village-headman has or has not been

appointed for that village under any other law].

_________

CHAPTER V

OF ARREST, ESCAPE AND RETAKING

A.—Arrest generally

46. Arrest how made.-(1) In making an arrest the police officer or other person making

the same shall actually touch or confine the body of the person to be arrested, unless there, be a

submission to the custody by word or action.

(2) Restating endeavour to arrest. If such person forcibly resists the endeavour to arrest

him, or attempts to evade the arrest, such police officer or other-person may use all means

necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused

of an offence punishable with death or with 8[imprisonment for life].

47. Search of place entered by person sought to be arrested. If any person acting

under a warrant of arrest, or any police-officer having authority to arrest, has reason to believe that

the person to be arrested has entered into, or is within any place, the person residing in, or being

in charge of such place shall, on demand of such parson acting as aforesaid or such police-officer,

allow him free ingress thereto, and afford all reasonable facilities for a search therein.

1Subs. by the Federal Adaptation of Laws Order, 1975 (P.O. 4 of 1975), Art. 2 and Table, for “Central Government” which had been subs. by A.O.,

1937, for “G.G. in C.”. 2 The words “or the Crown Representative” omitted by A.O., 1949, Sch. 3 Subs. ibid., for “India”. 4Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”, which had been subs. by A.O., 1949, Arts. 3(2) and 4, for “British India”. 5Subs. by A.O., 1937, for “L.G.”.

6 Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.9.

7Subs. ibid., for “to be village-headmen for the purposes of this section in any village for which there is no such headman appointed under any other

law”. 8Subs. by the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and ., Sch. for “transportation for life” (w.e.f 13-4-72). 9 Omitted subs. by Ord. 37 of 2001, s.21 (w.e.f. 14-8-2001).

20

48. Procedure where ingress not obtainable. If ingress to such place cannot be obtained

under Section 47 it shall be lawful in any case for a person acting under a warrant and in any case

in which a warrant may issue, but cannot be obtained without affording the person to be arrested

an opportunity of escape, for a police officer to enter such place and search therein; and in order

to effect an entrance into such place, to break, open any outer or inner or window of any house or

place, whether that of the person to be arrested or of any other person, if after notification of his

authority and purpose, and demand of admittance duly made, he can not otherwise obtain

admittance.

Breaking open zenana. Provided that, if any such place is an apartment in the actual

occupancy of a woman (not being the person to be arrested) who, according to custom, does not

appear in public such person or police-officer shall, before entering such apartment notice to such

woman that she is at liberty to withdraw and shall afford her every reasonable facility for

withdrawing, and may then break open the apartment and enter it.

49. Power to break open doors and windows for purposes of liberation. Any police

officer or other person authorized to make an arrest may break open any outer or inner door or

window of any house or place in order to liberate himself or any other person who, having lawfully

entered for the purpose of making an arrest, is detained therein.

50. No unnecessary restraint. The person arrested shall not be subjected to more restraint

than is necessary to prevent his escape.

51. Search of arrested persons: Whenever a person is arrested by a police-officer under

a warrant which does not provide for the taking of bail or under a warrant, which provides for the

taking of bail but the person arrested cannot furnish bail, and

whenever a person is arrested without warrant, or by a private person under a warrant,

and cannot legally be admitted to bail, or is unable to furnish bail.

the officer making the arrest or, when the arrest is made by a private person, the police

officer to whom he makes over the person arrested, may search such person and place in safe

custody all articles, other than necessary wearing apparel, found upon him.

52. Mode of searching women. Whenever it is necessary to cause a woman to be searched,

the search shall be made by another woman, with strict regard to decency.

53. Power to seize offensive weapons. The officer, or other person making any arrest

under Code may take from the person arrested any offensive weapons which he has about his

person, and shall deliver all weapons so taken to the Court or officer before which or whom the

officer or person making the arrest is required by this Code to produce the person arrested.

21

B.—Arrest without Warrant

54. When police may arrest without warrant.-(1) Any police-officer may, without an

order from a Magistrate and without a warrant arrest—

first, any person who has been concerned in any cognizable offence or against whom a

reasonable complaint has been made or credible information has been received, or

a reasonable suspicion exists of his having been so concerned;

secondly, any person having in his possession without lawful excuse, the burden of proving

which excuse shall lie on such person, any implement of house breaking;

thirdly, any person who has been proclaimed as an offender either under this Code or by

order of the 1[Provincial Government];

fourthly, any person in whose possession anything is found which may reasonably be

suspected to be stolen property 2[and] who may reasonably be suspected of having

committed an offence with reference to such thing ;

fifthly, any person who obstructs a police-officer while in the execution of his duty, or

who has; escaped, or attempts to escape, from lawful custody ;

sixthly, any person reasonably suspected of being a deserter from 3[the armed forces of

Pakistan] 4* * * 5* * *

1Subs. by A.O., 1937, for “L.G.”. 2 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.10, for “or”. 3 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), for “Her Majesty’s Army, Navy or Air Force”, which had been subs. by the Repealing and Amending Act, 1927 (10 of 1927), s.2 and Sch. I, for “Army or Navy”. 4 The words “or from any unit of [force of an Acceding State] declared under the Extraordition Act, 1903, to be a unit description from which is

an extradition offence” omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981) s.3 and Second Schedule which

were amended by the Code of Criminal Procedure (Amdt.) Ordinance, 1944 (48 of 1944), s.2 and the Federal Laws (Revision and Declaration)

Act, 1951 (26 of 1951), s.4 and Third Sch., to read as above. 5 The words “or of belonging to Her Majesty’s Indian Marine Service and being illegally absent from that service” rep. by the Amending Act, 1934 (35 of 1934), s.2 and Sch.

22

seventhly, any person who has been concerned in, or against whom a reasonable complaint

has been made or credible information has been received or a reasonable suspicion

exists of his having been concerned in, any act committed at any place out of 1[Pakistan], which, if committed in 1[Pakistan], would have been punishable as an

offence and for which he is under any law relating to extradition 2* * *or otherwise

liable to be apprehended or detained in custody in 1[Pakistan.] 3* ;

eighthly, any released convict committing a breach of any rule made under Section

565, sub-section (3);

4[ninthly, any, person for whose arrest a requisition has been received from another police

officer, provided that the requisition specifies the person to be arrested and the

offence or other cause for which the arrest is to be made and it appears therefrom

that the person might lawfully be arrested without a warrant by the officer who

issued the requisition.] 5* * * * * * *

655. Arrest of vagabonds, habitual robbers, etc..-(1) Any officer in charge of a police

station may, in like manner, arrest or cause to be arrested-

(a) any person found taking precautions to conceal his presence within the limits of

such station, under circumstances which afford reason to believe that he is taking

such precautions with a view to committing a cognizable offence ; or

(b) any person within the limits of such station who has not ostensible means of

subsistence, or who cannot give a satisfactory account of himself; or

(c) any person who is by repute an habitual robber, house-breaker or thief, or an

habitual receiver of stolen property, knowing it to be stolen, or who by repute

habitually commits extortion or in order to the committing of extortion habitually

puts or attempts to put persons in fear of injury.

1Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”. Which had been subs. by A.O., 1949, Arts. 3 (2) and 4, for “British India”. 2 The words “or under the Fugitive Offenders Act, 1881,” omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch. 3 The word “and” rep. by the Repealing and Amending Act, 1927 (10 of 1927), s.3 and Sch. II. 4Ins. by the Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923), s.10. 5 Sub-section (2) as amended by the City of Bombay Police Act, 1902 (Bom. 4 of 1902), s.2 (1) and Sch. A, omitted by A.O., 1949, Sch. 6In the N.W.F.P., any police-officer may exercise the powers conferred by this section on a police-officer in charge of a police-station, see the

N.W.F.P. Law and Justice Regulation, 1901 (7 of 1901), s.13.

23

1* * * * * * *

56. Procedure when police officer deputes subordinate to arrest without warrant.-(1)

When any officer in charge of a police-station 2[or any police-officer making an investigation

under-Chapter XIV] requires any officer subordinate, to him to arrest without a warrant (otherwise

than in his presence) any person who may lawfully, be arrested without a warrant, he shall deliver

to the officer required to make the arrest, an order in writing, specifying the person to be arrested

and the offence or other cause for which the arrest is to be made. 2[The officer so required shall,

before making the arrest, notify to the person to be arrested the substance of the order and, if so

required by such person, shall show him the order.] 1* * * * * * *

57. Refusal to give name and residence.-(1) When any person who in the presence of a

police-officer has committed or has been accused of committing a non-cognizable offence refuses,

on demand of such officer, to give his name and residence or gives a name or residence which

such officer has reason to believe to be false, he may be arrested by such officer in order that his

name or residence may be ascertained.

(2) When the true name and residence of such person have been ascertained, he shall be

released on his executing a bond, with or without sureties to appear before a Magistrate 3[having

jurisdiction] if so required:

Provided that, if such person is not resident in 4[Pakistan], the bond shall be secured by a

surety or sureties resident in 4[Pakistan].

(3) Should the true name and residence of such person be not ascertained within twenty

four hours from the time of arrest or should he fail to execute the bond or, if so required to furnish

sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

1Sub-section (2) as amended by the City of Bombay Police Act, 1902 (Bom. 4 of 1902), s.2 (1) and Sch. A, omitted by A.O., 1949, Sch. 2 Ins. by the Cod e of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.11. 3 Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p.40, supra. 4Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”, which had been subs. by A.O., 1949, Arts. 3 (2) and 4, for “British India”.

24

58. Pursuit of offenders into other jurisdiction. A police-officer may, for the purpose of

arresting without warrant any person whom he is authorized to arrest under this Chapter pursue

such person into anyplace in 1[Pakistan].

3[Explanation.-In this section, “police-officer” includes a police-officer acting under this

Code as in, force in Azad Jammu and Kashmir.].

59. Arrest by private persons and procedure on such arrest.-2[(1) Any private person

may arrest any person who in his view commits a non-bailable and cognizable offence, or any

proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a

police-officer or, in the absence of a police-officer, take such person or cause him to be taken in

custody to the nearest police-station.]

(2) If there is reason to believe that such person comes under the provisions of Section

54, a police-officer shall re-arrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he

refuses on the demand of a police officer to give his name and residence, or gives a name or

residence, which such officer has, reason to believe to be false, he shall be dealt with under the

provisional Section 57. If there is no sufficient reason to believe that he has committed any offence;

he shall be at once released.

60. Person arrested to be taken before Magistrate or officer in charge of police-

station. A police officer making an arrest without warrant shall, without unnecessary delay and

subject to the provisions herein contained as to bail, take or send the person arrested before a

Magistrate having jurisdiction in the case or before the officer in charge of a police-station.

61. Persons arrested not to be detained more than twenty-four hours. No police-officer

shall detain in custody a person arrested without warrant for period longer than, under all the

circumstances of the case is reasonable and such period shall not, in the absence of a special order

of a Magistrate under Section 167 exceed twenty-four hours exclusive of the time necessary for

the journey from the place of arrest to the Magistrate’s Court.

1Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”, which had been subs. by A.O., 1949, Arts. 3(2) and 4, for “British India”. 2Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.12, for the original sub-section. 3Added by the Act-VIII of 1993, s.2 (w.e.f. 20-11-93, SRO-1106(1)/93, dated 16-11-93).

25

62. Police to report apprehensions. Officers in charge of Police-station shall report to the 5[Zila

Nazim, District Superintendent of Police and District Public Safety commission set up under the Police

Act, 1861 (V of 1861), simultaneously], the cases of all persons arrested without warrant, within the limits

of their respective stations, whether such persons have been admitted to bail or otherwise.6[:]

6[Provided that in the application of this section to the districts where the local Government

elections have not been held or the Zila Nazim has not assumed charge of office, any reference in this

section to the Zila Nazim shall be read as a reference to the District Coordination Officer in relation to such

districts:

Provided further that the aforesaid proviso shall cease to have effect and shall be deemed to have

been repealed at the time when Local Governments are installed in the districts as aforesaid.]

63. Discharge of person apprehended. No person who has been arrested by a police

officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

64. Offence committed in Magistrate’s presence. When any offence is committed in the presence

of a Magistrate within the local limits of his jurisdiction he may himself arrest or order any person to arrest

the offender and may thereupon, subject to the provisions herein contained as to bail commit the offender

to custody.

65. Arrest by or in presence of Magistrate. Any Magistrate may at any time arrest or direct the

arrest, in his presence, within the local limits of his jurisdiction, of any person, for whose arrest he is

competent at the time and in the circumstances to issue a warrant.

66. Power, on escape, to pursue and retake. If a person in lawful custody escapes or is rescued

the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any

place in 1[Pakistan].

67. Provisions of Sections 47, 48 and 49 to apply to arrest under Section 66. The provisions of

Sections 47, 48 and 49 shall apply to arrests under Section 66, although the person making any such arrest

is not acting under a warrant and is not a police-officer having authority to arrest.

_______

CHAPTER VI

OF PROCESSES TO COMPEL APPEARANCE

A.-Summons

68. Form of summons-(1) Every summons issued by a Court under this Code shall be in writing

in duplicate, signed and sealed by the presiding officer of such Court or by such other officer as the High

Court may, from time to time, by rule, direct.

(2) Summons by whom served. Such summons shall be served by a police officer, or subject to

such rules as the 2[Provincial Government] may prescribe in this behalf by an officer of the Court issuing,

it or other public servant 3[:] 4[Provided that the Court may, at the request of the complainant or

the accused, allow him to serve the summons on his own witnesses.]

1 Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”, which had been subs. by A.O., 1949, Arts. 3(2) and 4, for “British India”. 2Subs. by A.O., 1937, for “L.G.”. 3Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “fullstop”.

For enforcement of this amendment in the Provinces, see para 2 of foot-note, 3 on p. 40 supra. 4 Proviso added ibid. 5 Subs. by Ord. 37 of 2001, s.22 (w.e.f. 14-8-2001) 6Subs. & added by Ord. 43 of 2001, s.2 (w.e.f. 14-8-2001).

26

1* * * * * * *

69. Summons how served.-(1) The summons shall, if practicable, be served personally on

the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(2) Signature of receipt for Summons. Every person on whom a summon is to be served

shall 2* * * sign a receipt thereof on the back of the other duplicate.

(3) Service of a summons on an incorporated company or other body corporate may be

effected by serving it on the secretary, local manager or other, principal officer of the corporation

or by registered, post letter addressed to the chief officer of the corporation in 3[Pakistan]. In such

case the service shall be deemed to have been effected when the letter would arrive in ordinary

course of post.

70. Service when person summoned cannot be found. Where the person summoned

cannot by the exercise of due diligence be found the summons may be served by leaving one of

the duplicates for him with some adult male member of his family, 4* * *, and the person with

whom the summons is so left shall, 2* * *, sign a receipt therefore on the back of the other

duplicate.

71. Procedure when service cannot be effected as before provided. If service in the

manner mentioned in Sections 69 and 70 cannot by the exercise of due diligence be effected, the-

serving officer shall affix one of the duplicates of the summons to some conspicuous part of the

house or homestead in which the person summoned ordinarily resides; and thereupon the summons

shall be deemed to have been duly served.

72. 5[Service on servant of State [Statutory body or Company].-(1) Where the person

summoned is in the active service of the 6[State] or of a 7[8[a]statutory body or a company], the

Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which

such person is employed; and such head shall thereupon cause the summons to be served in manner

provided by Section 69, and shall return it to the Court under his signature with the endorsement

required by that section.

(2) Such signature shall be evidence of due service.

1 Sub-Section (3) omitted by A.O., 1949, Sch. 2The words “if so required by the serving officer” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For enforcement of this amendment in the Provinces, see, para 2 of foot-note 3 on p. 40, supra. 3 Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”, which had been subs. by A.O., 1949, Arts. 3 (2) and 4, for “British India”. 4 The words and commas “or, in a presidency-towns, with his servant residing with him” rep. by the Federal Laws (Revision and Declaration)

Act, 1951 (26 of 1951), s.3 and II Sch. 5 Subs. by Ordinance 12 of 1972, s.2 and Sch., for “Service on servant of State or of Railway Company”. 6 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), for “Crown” which had been subs. by A.O., 1937, for “Govt.” 7 Subs. by Ordinance 12 of 1972, s. 2 and Sch., for “Railway Company”. 8 Sic. “a” is superfluous.

27

73. Service of summons outside local limits. When a Court desires that a summons

issued by it shall be served at any place outside the local limits of its jurisdiction, it shall ordinarily

send such summons in duplicate to a Magistrate within the local limits of whose jurisdiction the

person summoned resides or is to be there served.

74. Proof of service in such cases and when serving 1[person] not present.-(l)When a

summons issued by a Court is served outside the local limits of its jurisdiction, and in any case

where the 1[person] who has served a summons is not present at the hearing of the case, an

affidavit, purporting to be made before a Magistrate, that such summons has been served, and a

duplicate of the summons purporting to be endorsed (in manner provided by section 69 and section

70) by the person to whom it was delivered or tendered or with whom it was left, shall be

admissible in evidence, and the statements made therein shall be deemed to be correct unless and

until the contrary is proved.

(2) The affidavit mentioned in this section may be attached to the duplicate of the summons

and returned to the Court.

B.-Warrant of Arrest

75. Form of warrant of arrest.-(1) Every Warrant of arrest Issued by a Court under this

Code, shall be in writing, signed by the presiding officer, or in the case of a Bench of Magistrates,

by any member of such Bench and shall bear the seal of the Court.

(2) Continuance of warrant of arrest. Every such warrant shall remain in force until

cancelled by the Court which issued it, or until it is executed.

76. Court may direct security to be taken. Any Court issuing a warrant for the arrest of

any person may in its discretion direct by endorsement on the warrant that, if such person execute

a a bond with sufficient sureties for his attendance before the court at a specified time and

thereafter, until otherwise directed by the Court, the officer to the warrant is directed shall take

such security and shall release such person from custody.

(2) The endorsement shall state-

(a) the number of sureties.

(b) the amount in which they and the person for whose arrest the warrant is

issued, are to be respectively bound; and

(c) the time at which he is to attend before the Court.

(3) Recognizance to be forwarded. Whenever security is taken under this section the

officer to whom the warrant is directed shall forward the bond to the Court.

1Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “officer”.

For enforcement of this amendment in the Provinces, see, para 2 of foot-note 3 on p. 40, supra.

28

77. Warrants to whom directed.-(1) A warrant of arrest shall ordinarily be directed to

one or more police-officers, 1* * *; but 2[any Court] issuing such a warrant may, if its immediate

execution is necessary and, no .police-officer is immediately available, direct it to any other person

or persons, and such person or persons shall execute the same.

(2) Warrants to several persons. When a warrant is directed to more officers or persons

than one, it may be executed by all, or by any one or more, of them.

78. Warrant may be directed to landholders, etc.-(1) A 5[Magistrate of the First Class]

may direct a warrant to any landholder, farmer or manager of land within the district or sub-

division for the arrest of any escaped convict, proclaimed offender or person who has been accused

of a non-bailable offence, and who has eluded pursuit.

(2) Such landholder farmer or manager shall acknowledge in writing the receipt of the

warrant, and shall execute it if the person for whose arrest it was issued is in, or enters on, his land

or farm of the land under his charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made

over with the warrant to the nearest police-officer, who shall cause him to be taken before a

Magistrate having Jurisdiction in the case, unless security is taken under Section 76.

79. Warrant directed to police officer. A warrant directed to any police officer may

also be executed by any other police officer whose name is endorsed upon the warrant by the

officer to whom it is directed or endorsed.

80. Notification of substance of warrant. The police officer or other person executing a

warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required,

shall show him the warrant.

81. Person arrested to be brought before Court without delay. The police officer or

other person executing a warrant of arrest shall (subject to the provisions of Section 76 as to

security) without unnecessary, delay bring the person arrested before the Court before which he is

required by law to produce such person.

82. Where warrant may be executed. A warrant of arrest may be executed at any place

in 3[Pakistan].

4[Explanation.- In this section, “warrant of arrest” includes a warrant of arrest issued

under this Code as in force in Azad Jammu and Kashmir].

1 The words and commas “and, when issued by a Presidency Magistrate, shall always be so directed” omitted by A.O., 1949, Sch. 2 Subs ibid., for “any other Court”. 3Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the Provinces and the Capital of the Federation”, which had been subs. by A.O., 1949, Arts. 3 (2) and 4, for “British India”. 4Added by Act. VIII of 1993, s.3, (w.e.f. 20-11-93, SRO-1106(1)/93, dated 16-11-93). 5Subs. by Ord. 37 of 2001, s.23 (w.e.f. 14-8-2001).

29

83. Warrant forwarded for execution outside jurisdiction.-(1) When a warrant is to be

executed outside the local limits of the jurisdiction of the Court issuing the same such Court may,

instead of directing such warrant to a police-officer, forward the same by post or otherwise to any

Magistrate or District Superintendent of Police 1* * *within the local limits of whose jurisdiction

it is to be executed.

(2) The Magistrate or District Superintendent 2* * *to whom such warrant is so forwarded

shall endorse his name thereon and, if practicable, cause it to be executed in manner hereinbefore

provided within the local limits of his jurisdiction.

84. Warrant directed to police-officer for execution outside jurisdiction.-(1) When a

warrant directed to a police-officer is to be executed beyond the locate limits of the jurisdiction of

the Court issuing the same, he shall ordinarily take it for endorsement either to a Magistrate or to

a police-officer not below the rank of an officer-in-charge of a police station, within the local limits

of whose jurisdiction the warrant is to be executed.

(2) Such Magistrate or police officer shall endorse his name thereon, and such endorsement

shall be sufficient authority to the police-Officer to whom the warrant is directed to execute the

same within such limits, and the local police shall, if so required, assist such officer in executing

such warrant.

(3) Whenever there is reason to believe that the delay occasioned by obtaining the

endorsement of the Magistrate or police-officer within the local limits of whose jurisdiction the

warrant is to be executed, will prevent such execution, the police-Officer to whom it is directed

may execute the same without such endorsement in any place beyond the local limits of the

jurisdiction of the Court which issued it.

3* * * * * * *

85. Procedure on arrest of person against to whom warrant issued. When a warrant of

arrest is executed outside the district in which it was issued, the person arrested shall, unless the

Court which issued the warrant is within twenty mites of the place of arrest or is nearer than the

Magistrate or District Superintendent of Police 1* * * within the focal limits of whose jurisdiction

the arrest was made, or unless security is taken under Section 76, be taken before such Magistrate 2* * * or District Superintendent.

1 The words “or the Commissioner of Police in a Presidency-town” omitted by A.O., 1949, Sch. 2 The word “or Commissioner” omitted ibid. 3 The original sub-section (4) as amended by the City of Bombay Police Act, 1902 (Bom. 4 of 1902), s.2 (1) and Sch. A, omitted, ibid.

30

86. Procedure by Magistrate before whom person arrested is brought.-(1) Such

Magistrate or District Superintendent 1* * *shall, if the person arrested appears to be the person

intended by the Court which issued the warrant, direct his removal in custody to such Court.

Provided that, if the offence is bailable, and such person is ready and willing to give bail

to the satisfaction of such Magistrate, or District Superintendent 1* *, or a direction has been

endorsed under Section76 on the warrant and such person is ready and willing to give the security

required by such direction, the Magistrate, or District Superintendent 1* * shall take such bail or

security as the case may be, and forward the bond to the Court which issued the warrant [:]2

3[Provided further that, if the offence is not bailable or no direction has been: endorsed

under Section 76 on the warrant, the Sessions .Judge of the sessions division in which the person

is arrested may, subject to the provisions of Section 497 and for sufficient reasons, release, the

person on an interim bail on such bond or security, as the Sessions Judge thinks fit and direct the

person to appear by a specified date before the Court which issued the warrant and forward the

bond to that Court.]

(2) Nothing in this section shall be deemed to prevent a police-officer from taking security

under Section 76.

4[86A. Procedure for removal in custody to Tribal Areas. Where a person, arrested

under Section 85 is to be removed in custody to, any place in the Tribal Areas, he shall be produced

before a Magistrate within the local limits of whose jurisdiction the arrest was made, and such

Magistrate in directing the removal shall hear the case in the same manner and have the same

jurisdiction and powers, as nearly as may be, including the powers to order the production of

evidence, as it the person arrested were charged with an offence committed within the jurisdiction

of such Magistrate, and such Magistrate shall direct the removal of the arrested person in custody

if he is satisfied that the evidence produced before him raises a strong or probable presumption

that the person arrested committed the offence mentioned in the warrant.]

1 The words “or Commissioner” omitted by A.O., 1949, Sch. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for full-stop.

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra. 3 Proviso added ibid. 4Ins. ibid.

31

C.—Proclamation and Attachment

87. Proclamation for person absconding.-(1) If any Court 1[is satisfied after taking

evidence] that any person against whom a warrant has been issued by it has absconded or is

concealing himself so that such warrant cannot be executed, such Court may publish a written

proclamation requiring him to appear at a specified place and at a specified time not less than thirty

days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:-

(a) it shall be publicly read in some conspicuous place of the town or village

in which such person ordinarily resides ;

(b) it shall be affixed to some conspicuous part of the house or homestead in

which such person ordinarily resides or to some conspicuous place of such town or

village; and

(c) a copy thereof shall be affixed, to some conspicuous part of the Court-

house.

(3) A statement in writing by the Court issuing the proclamation to the effect that the

proclamation was duly published on a specified day shall be conclusive evidence that the

requirements of this section have been complied with and that the proclamation was published on

such day.

88. Attachment of property of person absconding.-(1) The Court issuing a proclamation

under Section 87 may at any time order the attachment of any property, movable or immovable or

both, belonging to the proclaimed person.

1Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for “has reason to believe (whether after taking evidence or not)”.

For enforcement of this amendment in the Provinces, see para. 2 of foot-note 3 on page 40, supra.

32

(2) Such order shall authorize the attachment of any property belonging to such person

within the district in which it is made and it shall authorise the attachment of any property

belonging to such person without such district when endorsed by the 5[Sessions Judge] 1* * *within

whose district such property is situated.

(3) If the property ordered to be attached is a debt or other movable property, the

attachment under this section shall be made—

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed

person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(4) if the property ordered to be attached is immovable, the attachment under this section

shall, in the case of land-paying revenue to 2[the Provincial Government], be made through the 5[District Officer (Revenue)] in which the land is situated, and in all other cases-

(e) by taking possession ; or

(f) by the appointment of a receiver; or

(g) by an order in writing prohibiting the payment of rent or delivery of property to the

proclaimed person or to any one on his behalf; or

(h) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of livestock or is of a perishable nature,

the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds

of the sale shall abide, the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same

as those of a receiver appointed under 3[Order XL of the Code of Civil Procedure 1908 (Act V of

1908)].

4[(6A) If any claim is preferred to or objection made, to the attachment of any property

attached under this section within six months from the date of such attachment, by any person

other 1The words “or Chief Presidency Magistrate” omitted by A.O., 1949, Sch. 2 Subs. by A.O., 1937 for “Govt.”. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for “Chapter XXXVI of the Code of Civil Procedure”. For enforcement of this amendment in the Provinces, see, para 2 of foot-note 3 on p. 40, supra. 4Sub-section (6A) to (6E) ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.13. 5 Subs. by Ord. 37 of 2001, s.24 (w.e..f. 14-8-2001).

33

than the proclaimed person, on the ground that the claimant or objector has an interest in such

property, and that such interest is not liable to attachment under this section, the claim or objection

shall be inquired into, and may be allowed or disallowed in whole or in part] ;

Provided that any claim preferred or objection made within the period allowed by this

subsection may, in the event of the death of the claimant or objector, be continued by his legal

representative.

(6B) Claims or objections under sub-section (6A) may be preferred, or made in the Court

by which the order of attachment is issued or, if the claim or objection is in respect of property

attached under an order endorsed by a 6[Sessions Judge] 1* * * in accordance with the provisions

of sub-section (2) in the Court of such Magistrate.

(6C) Every such claim or objection shall be inquired into by the Court 6[or Magistrate] in

which it is preferred or made 6[.] 6***

(6D) Any person whose claim or objection has been disallowed in whole or in part by an

order under sub-section (6A) may within a period of one year from the date of such order, institute

a suit to establish the right which he claims in respect of the property in dispute; but subject to the

result of such suit, if any, the order shall be conclusive.

(6E) If the proclaimed person appears within the time specified in the proclamation, the

Court shall make an order releasing the property from the attachment.]

(7) If the proclaimed person does not appear within the time specified in the proclamation,

the property under attachment shall be at the disposal of 4[the Provincial Government] but it shall

not be sold until the expiration of Six months from the date of the attachment 5[and until any claim

preferred or objection made under sub-section (6A) has been disposed of under that sub-section],

unless if is subject to speedy and natural decay, or the Court considers that the sale would be for

the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it

thinks fit.

1The words “or Chief Presidency Magistrate” omitted by A.O., 1949, Sch. 2The words “of the first or second class” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p.40, supra. 3The words “or to any Presidency Magistrate, as the case may be” omitted, ibid. 4Subs. by A.O., 1937, for “Govt.”. 5Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.13. 6Subs. & Ins. omitted by Ord. 37 of 2001, s. 24 (w.e.f. 14-8-2001).

34

89. Restoration of attached property: If within two years from the date of the attachment,

any person, whose property is or has been at the disposal of 1[the Provincial Government], under

sub-section (7) of Section 88 appears voluntarily or is apprehended and brought before the Court

by whose order the property was attached; or the Court to which such Court is subordinate, and

proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose

of avoiding, execution of the warrant and that he had not such notice of the proclamation as to

enable him to attend within the time specified therein, such property or, if the same has been sold,

the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and

the residue of the property, shall after satisfying thereout all costs incurred in consequence of the

attachment, be delivered to him.

D.—Other Rules regarding Processes

90. Issue of warrant in lieu of, or in addition to summons: A Court may, in any case in

which it is empowered by this Code to issue a summons for the appearance of any person other

than a juror or assessor,2* * * issue, after recording its reasons in writing, a warrant for his arrest—

(a) if, either before the issue, of such summons, or after the issue of the same but before

the time fixed for his appearance, the Court sees reasons to believe that he has

absconded or will not obey the summons; or

(b) it at such time he fails to appear and the summons is proved to have been duly

served in time to admit of his appearing in accordance therewith and no reasonable

excuse is offered for such failure.

91. Power to take bond for appearance: When any person for whose appearance or arrest

the officer presiding in any Court is empowered to issue a summons or warrant, is present in such

Court, such officer may require such person to execute a bond, with or without sureties, for his

appearance in such Court.

92. Arrest by breach of bond for appearances. When any person who is bound by any

bond taken under this Code to appear before a Court does not so appear, the officer presiding in

such Court may issue a warrant directing that such person be arrested and produced before him.

93. Provisions of this Chapter generally applicable to summons and warrants of

arrest. The provisions contained in this Chapter relating to a summons and warrant, and their

issue, service and execution, shall, so far as may be, apply to every summons and every warrant

of arrest issued under this Code.

1Subs. by A.O., 1937, for “Govt.”. 2 The words “other than a juror or assessor” omitted by the Law Reform Ordinance, 1972 (12 of 1972) s.2 and Sch.

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra.

35

1[E. — Special Rules regarding processes issued for service or execution outside 2[Pakistan] and processes received from outside 2[Pakistan] for service or execution within 2[Pakistan].

193A. Sending of summons for service outside Pakistan.-(1) Where a Court in

2[Pakistan] desires that a summons issued by it to an accused person shall be served at any place

outside 2[Pakistan] within the local limits of the jurisdiction of a Court established or continued by

the authority of the 3[Federal Government] 4[in exercise of its foreign jurisdiction], it shall send

such summons, in duplicate, by post or otherwise, to the presiding officer of that Court to be

served.

(2) The provisions of Section 74 shall apply in the case of a summons sent for service

under this section as if the presiding officer of that Court to whom it was sent were a Magistrate

in 2[Pakistan].

193B. Sending of warrants for execution outside Pakistan: Notwithstanding anything

contained in Section 82, where a Court in 2[Pakistan] desires that a warrant, issued by it for the

arrest of an accused person shall be executed at any place outside 2[Pakistan] within the local limits

of the jurisdiction of a Court established or continued by the authority of the 3[Federal

Government] 4[in exercise of its foreign jurisdiction], it may send such Warrant, by post or

otherwise, to the presiding officer of that Court to be executed.

193C. Service and execution in Pakistan of processes received from outside Pakistan:

(1) Where a Court has received for service or execution a summons to, or a warrant for the arrest

of, an accused person issued by a Court established or continued by the authority of the 3[Federal

Government] 4[in exercise of its foreign jurisdiction], outside 2[Pakistan] it shall cause the same to

be served or executed as if it were a summons or warrant received by it from a Court in 2[Pakistan]

for service or execution within the local limits of its jurisdiction.

(2) Where any warrant of arrest has been so executed the person arrested shall so far as

possible be dealt with in accordance with the procedure prescribed by Sections 85 and 86.]

1Heading E and sections 93A to 93C ins. by the Code of Criminal Procedure (Amendment) Act, 1941 (14 of 1941) s. 2. 2Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”, which had been subs. by A.O., 1949, Arts. 3 (2) and 4, for “British India”. 3 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”. 4 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), for “in any part of Pakistan” which had been subs. by A.O., 1949,

Sch., for “or the Crown Representative in any part of India”.

36

CHAPTER VII

OF PROCESSES TO COMPEL THE PRODUCTION OF DOCUMENTS AND OTHER MOVABLE

PROPERTY AND FOR THE DISCOVERY OF PERSONS WRONGFULLY CONFINED.

A.—Summons to produce

94. Summons to produce document or other thing.-(1) Whenever any Court, or 1* * *,

any officer in charge of a police-station considers that the production of any document or other

thing is necessary or desirable for the purposes of ,any investigation, inquiry, trial or other

proceeding under this Code by or before such Court or officer, such Court may issue a summons,

or such officer a written order, to the person in whose possession or power such document or thing

is believed to be, requiring him to attend and produce it or to produce it, at the time and place

stated in the summons or order [:]2

3[Provided that no such officer shall issue any such order requiring the production of any

document or other thing which is in the custody of a bank or banker as defined in the Banker's

Books Evidence Act, 1891 (XVIII of 1891), and relates, or might disclose any information which

relates to the bank account of any person except,-

(a) for the purpose of investigating an offence under Sections 403, 406, 408 and 409

and sections 421 to 424 (both inclusive) and Sections 465 to 477-A (both inclusive)

of the Pakistan Penal Code, with prior permission in writing of a Sessions Judge ;

and

(b) in other cases, with the prior permission in writing of the High Court.]

(2) Any person required under this section merely to produce a document or other thing

shall be deemed to have complied with the requisition if he causes such document or thing to be

produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed to affect the Evidence Act, 1872 (I of 1872), Sections

123 and 124, or to apply to a letter, postcard, telegram or other document or any parcel or thing

in the custody of the Postal or Telegraph Authorities.

95. Procedure as to letters and telegrams.-(1) If any document, parcel or thing in such

custody is, in the opinion of any [5***]Magistrate, 4***High Court or Court of Session wanted for

the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate

or Court may require the Postal or Telegraph Authorities, as the case may be, to deliver such

document, parcel or thing to such person as such Magistrate or Court directs.

1The words “in any place beyond the limits of the towns of Calcutta and Bombay” omitted by A.O., 1949, Sch. 2 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1968 (3 of 1968) s. 2, for full-stop (w.e.f. 21-5-68). 3 Proviso added ibid. 4 The words “Chief Presidency Magistrate” omitted by A.O., 1949, Sch. 5 Omitted by Ord. 37 of 2001, s. 25 (w.e.f. 14-8-2001).

37

(2) If any such document, parcel or thing is, in the opinion of any Other Magistrate, 1* *

* or District Superintendent of Police wanted for any such purpose he may require the Postal or

Telegraph Department, as the case may be, to cause search to be made for and to detain such

document, parcel or thing pending the orders of any such Court.

B. —Search-warrants

96. When search warrant may be issued.-(1) Where any Court has reason to believe

that a person to whom a summons or order under Section 94 or a requisition under Section 95,

sub-section (1), has been or might be addressed, will not or would not produce the document or

thing as required by such summons or requisition,

or where such document or thing is not known to the Court to be in the possession of any

person,

or where the Court considers that the purposes of any inquiry, trial or other proceedings

under this Code will be served by a general search or inspection,

it may issue a search-warrant; and the person to whom such warrant is directed, may

Search or inspect in accordance therewith and the provision hereinafter contained.

2***

97. Power to restrict warrant: The Court may, if it thinks fit, specify in the warrant the

particular place or part thereof to which only the search or inspection shall extend; and the person

charged with the execution of such warrant shall then search or inspect only the place or part so

specified.

98. Search of house suspected to contain stolen property, forged documents, etc.-(1)

If a [2***]Magistrate of the First Class, upon information and after such inquiry as he thinks

necessary, has reason to believe that any place is used for the deposit or sale of stolen property,

1 The words “or of any Commissioner of Police” omitted by A.O., 1949, Sch. 2 Omitted by Ord. 37 of 2001, ss. 25-27 (w.e.f. 14-8-2001).

38

or for the deposit or sale or manufacture of forged documents, false seals or counterfeit

stamps 1[bank notes, currency notes or coins or instruments or materials for counterfeiting coin or

stamps, bank notes or currency notes] or for forging,

or that any forged documents, false seals or counterfeit stamps, 1[bank notes, currency

notes or coins, or instruments or materials for counterfeiting coins, Stamps, bank notes or currency

notes] for forging, are kept or deposited in any place,

2[or 3 * * * for the deposit, sale, manufacture or production of any obscene object such

as is referred to in Section 292 of the Pakistan Penal Code (XLV of 1860) or that any such obscene

objects are kept or deposited in any place ;]

he may by his warrant authorize any police-officer above the rank of a constable-

(a) to enter with such assistance as may he required, such place, and

(b) to search the same in manner specified in the warrant, and

(c) to take possession of any property, document, seals, stamps or [bank notes,

currency notes or coins therein found which he reasonably suspects to be stolen,

unlawfully obtained, forged, false or counterfeit and also of any such instruments

and material or of any such obscene objects as aforesaid, and

(e) to convey such property, documents, seals, stamps, 4[bank notes, currency notes],

coins, instruments or materials 2[or such obscene objects] before a Magistrate, or to

guard the same on the spot until the offender is taken before a Magistrate or, otherwise

to dispose thereof in some place of safety, and

1Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2. and Sch., for “or coin, or instruments or materials for counterfeiting coin or

stamps”.

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra. 2 Ins. by the Obscene Publications Act, 1925 (8 of 1925), s. 3. 3 The commas and words “, if a District Magistrate, [or a Sub-divisional Magistrate], upon information and after such inquiry as he thinks

necessary, has reason to believe that any place is used” omitted by Ord. 12 of 1972, s. 2 and Sch. The words in crotches were subs. by A.O., 1949, Sch., for “Sub-divisional Magistrate or a Presidency Magistrate”. 4 Ins. by Ord. 12 of 1972, s. 2. and Sch.

39

(e) to take into custody and carry before a Magistrate every person, found in such place

who appears, to have been privy to the deposit, sale or manufacture or keeping of

any such property, documents, seals, stamps, 1[bank notes, currency notes], coins,

instruments or materials 2[or such obscene objects] knowing or having reasonable

cause to suspect the said property to have been stolen or otherwise unlawfully

obtained or the said documents, seals, stamps, bank notes, currency notes, coins,

instruments or materials to have been forged, falsified or counterfeited, or the said

instruments or materials to have been or to be intended to be used for counterfeiting

coin 3[,stamps,bank notes, currency notes] or for forging 1[or the said obscene

objects to have been or to be intended to be sold, let to hire, distributed, publicly

exhibited, circulated, imported or exported].

(2) The provisions of this section with respect to-

(a) counterfeit coin,

(b) coin suspected to be counterfeit, and

(c) instruments or materials for counterfeiting coin, shall so far as they can be made

applicable, apply respectively to-

(a) pieces of metal made in contravention of the Metal Tokens Act,(I of 1889)

1889, or brought into 4[Pakistan] in contravention of any notification for the

time being in force under 5[Section 16 of the Customs Act, 1969(IV of

1969)],

(b) pieces of metal suspected to have been so made or to have been so brought,

into 4[Pakistan] or to be intended to be issued in contravention of the former

of those Acts, and

(c) instruments or materials for making pieces of metal in contravention of

that Act.

1 Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra. 2Ins. by the Obscene Publications Act, 1925 (8 of 1925), s. 3. 3 Subs. by Ordinance 12 of 1972, s. 2 and Sch., for “or stamps.” 4Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, Arts. 3(2) and 4, for “British India”. 5Subs. by the Law Reform Ordinance, 1972 (12 of 1972) s. 2 and Sch. for “section 19 of the Sea Customs Act, 1878”.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra.

40

99. Disposal of things found in search beyond jurisdiction: When, in the execution of a

search-warrant at any place beyond the local limits of the jurisdiction of the Court which issued

the same any of the things for which search is made are found, such things together with the list

of the same, prepared under the provisions hereinafter contained, shall be immediately taken before

the Court issuing the warrant unless such place is nearer to the Magistrate having jurisdiction

herein than to such Court, in which case the list and things shall be immediately taken before such

Magistrate; and unless there be good cause to the contrary, such Magistrate shall make an order

authorizing them to be taken to such Court.

1[99A. Power to declare certain publications forfeited and to issue search-warrants

for the same.-(1) Where-

(a) any newspaper, or book as defined in the 2[West Pakistan Press and Publications

Ordinance, 1963(W.P.Ord. XXX of 1963), or any other law relating to press and

publication for the time being in force], .

(b) any document,

wherever printed, appears to the 3[Provincial Government] to contain any 4[treasonable or]

seditious matter 5[or any matter which is prejudicial to national integration] 6[or any matter which

promotes or is intended to promote, feelings of enmity or hatred between different classes of 7[the

citizens of Pakistan]]. 8[or which is deliberately and maliciously intended to outrage the religious

feelings of any such class by inputting the religion or the religious belief of that class], 9[or any

matter, of the nature referred 1to in clause (ii) of sub-section (1) of Section 24 of the West Pakistan

Press and Publication Ordinance, 1963,( W.P.XXX of 1963)] that is to say,

1Ss. 99A to 99G ins. by the Press Law Repeal and Amendment Act, 1922 (14 of 1922), s. 5 and Sch. III. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch, for “Press and Registration of Books Act, 1867”. 3 Subs. by A.O., 1937, for “L.G.”. 4 Ins. by the Code of Criminal Procedure (Amdt.) Act, 1951 (19 of 1951), s.2. 5 Ins. by the Criminal Law (Amdt.) Act, 1973 (6 of 1973), s. 3 (w.e.f. 31-1-73). 6 Ins. by the Code of Criminal Procedure (Third Amdt.) Act, 1926 (36 of 1926), s. 2. 7Subs. by A.O., 1961, Art. 2 and Sch., for “His Majesty’s subjects” (with effect from the 23rd March, 1956). 8 Ins. by the Criminal Law Amendment Act, 1927 (25 of 1927), s. 3. 9 Ins. by the Anti-Islamic Activities of the Qudiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 (20 of 1984), s.4.

41

any matter the publication of which is punishable under 1[section 123A or] section 124A 2[or

section 153A] 3[or section 295A] 4[or section 298A or section 298B or section 298C] of the

Pakistan Penal Code, the 5[Provincial Government] may, by notification in the 6[official Gazette]

stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such

platter and every copy of such book or other document to be forfeited to 7[Government] ,and

thereupon any police-officer may seize the same wherever found in 8[Pakistan] and any Magistrate

may by warrant authorize any police-officer not below the rank of sub-Inspector to enter upon and

search for the same in any premises where any copy of such issue or any such book or other

document may be reasonably suspected to be.

(2) In sub-section (1) “document” includes also any painting, drawing or photograph, or

other visible representation.

99B. Application to High Court to set aside order of forfeiture.-9[(1)] Any person

having any interest in any newspaper, book or other document, In respect of which an order of

forfeiture has been made under Section 99A, 10[or any other law for the time being in force] may,

within two months from the date of such order, apply, to the High Court to set aside such order on

the ground that the issue of the newspaper, or the book or other document in respect of which the

order was made, did not contain any 11[treasonable or] 12[seditious or other matter of such a nature

as is referred to in sub-section (1) of Section 99A].

13[(2) Nothing in subsection (1), shall apply to a case where the order of forfeiture has

been made-

(a) in respect of a newspaper, book or other document printed outside Pakistan ; or

(b) in respect of a newspaper, book or other document on the conviction in respect of

such newspaper, book or other document, of the author or editor thereof for any of

the offences referred to in sub-section (1) of Section 99A.]

1Ins. by the Code of Criminal Procedure (Amdt.) Act, 1951 (19 of 1951), s. 2. 2 Ins. by the Code of Criminal Procedure (Third Amdt.) Act, 1926 (36 of 1926), s. 2. 3 Ins. by the Criminal Law Amendment Act, 1927 (25 of 1927), s. r. 4 Ins. by the Anti-Islamic Activities of the Qudiani Group, Lahori Group Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 (20

of 1984), s. 4. 5Subs. by A.O., 1937, for “L.G.”. 6 Subs. ibid., for “local official Gazette”. 7Subs. by A.O., 1961, Art. 2, for “His Majesty” (with effect from the 23rd March, 1956). 8Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, Arts. 3 (2) and 4, for “British India”. 9Section 99B re-numbered as sub-section (1) of that section by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For the enforcement of this amendment in the Provinces see para 2 of footnote 3 on page 40, supra. 10Ins. ibid. 11Ins. by Act 19 of 1951, s. 3. 12Subs. by Act 36 of 1926, s. 3, for “seditious matter”. 13Subs-section (2) added by Ord. 12 of 1972, s. 2 and Sch.

42

99C. [Hearig by Special Bench] Omitted by Law Reforms Ordinance, 1972(XII of 1972),

s. 2 and Sch.

99D. Order of High Court setting aside forfeiture.-(1) On receipt of the application, the 1[High Court] shall, if it is not satisfied that the issue of the newspaper, or the book or other

document, in respect of which the application has been made, contained 2[treasonable or] 3[seditious or other matter of such a nature as is] referred to in sub-section (1) of Section 99A, set

aside the order of forfeiture.

4* * * * * * *

99E. Evidence to prove nature or tendency of newspaper. On the hearing of any such

application with reference to any newspaper, any copy of such newspaper may be given in

evidence in aid of the proof of the nature or tendency of the words, signs or visible representations

contained in such newspaper, 5[in respect or which the order of forfeiture was made].

99F. Procedure in High Court. Every High Court shall, as soon as conveniently may be,

frame rules to regulate the procedure in the case of such applications, the amount of the costs

thereof and the execution of orders passed thereon, and until such rules are framed, the practice of

such Courts in proceedings other than suits and appeals shall apply, so far as may be practicable

to such applications.

99G. Jurisdiction barred. No order passed or action taken under Section 99A shall be

called in question in any Court otherwise than in accordance with the provisions of Section 99B.

C.—Discovery of persons wrongfully confined

100. Search for persons wrongfully confined. If any 6* *, Magistrate of the First Class

[8***]has reason to believe that any person is confined under such circumstances that the

confinement amounts to an offence, he may issue a search warrant, and the person to whom such

warrant is directed may search for the person so confined; and such search shall be made in

accordance therewith, and the person, if found, shall be immediately taken before a Magistrate,

who shall make such order as in the circumstances of the case seems proper.

D.-General Provisions relating to Searches

101. Direction, etc., of search-warrants. The provisions of Sections 43, 75, 77, 79, 82,

83 and 84 shall, so far as may be, apply to alt search-warrants issued under Section 96, Section

98, 7[Section 99A] or Section 100. 1Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for “Special Bench”. 2Ins. by the Code of Criminal Procedure (Amdt.) Act, 1951 (19 of 1951), s. 3. 3Subs. by the Code of Criminal Procedure (Third Amdt.) Act, 1926 (36 of 1926) s. 4, for “seditious matter of the nature”. 4Sub-section (2) omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch.

Fro enforcement of this amendment in the Provinces, see para 2 of foot-note 3 on p. 40, supra. 5Subs. by Act 36 of 1926, s. 5, for “which are alleged to be seditious matter”. 6The word “Presidency Magistrate” omitted by A.O., 1949, Sch. 7Ins. by the Press Law Repeal and Amendment Act, 1922 (14 of 1922), s. 5 and Sch. III. 8Omitted by Ord. 37 of 2001, s. 28 (w.e.f. 14-8-2001).

43

102. Persons in charge of closed place to allow search.-(1) Whenever any place liable to

search or inspection under this chapter is dosed, any person residing in, or being incharge of such

place shall, on demand of the officer or other person executing the warrant, and on production of

the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing

the warrant may proceed in manner provided by section 48.

(3) Where any person in or about such place is reasonably suspected of concealing about

his person any article for which search should be made, such person may be searched. If such

person is a woman, the directions of section 52 shall be observed.

103. Search to be made in presence of witnesses.-(1) Before making a search under

this chapter, the officer or other person about to make it shall call upon two or more respectable

inhabitants of the locality in which the place to be searched is situate to attend and witness the

search 1[and may issue an order in writing to them or any of them so to do].

(2) The search shall be made in their presence, and a list of all things seized in the course

of such search and of the places in which they are respectively found shall be prepared by such

officer or other person signed by such witnesses; but no person witnessing a search under this

section shall be required to attend the Court as a witness of the search unless specially summoned

by it.

(3) Occupant of place searched may attend. The occupant of the place searched, or

some person in this behalf, shall, in every instance, be permitted to attend during the search, and a

copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such

occupant or person at his request.

(4) When any person is searched under section 102, sub-section (3), a list of all things

taken possession of shall be prepared, and a copy thereof shall be delivered to such person, at his

request.

2[(5) Any person who, without reasonable cause, refuses or neglects to attend and witness

a search under this section, when called upon to do so by any order in writing delivered or tendered

to him, shall be deemed to have committed an offence under Section 187 of the Pakistan Penal

Code (XLV of 1860).]

1Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 14.

2Sub-section (5) ins. ibid.

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E. —Miscellaneous

104. Power to impound document, etc., produced. Any Court may, if it thinks fit,

impound any document or thing produced before it under this Code.

105. Magistrate may direct search in his presence. Any Magistrate may direct a search

to be made in his presence of any place for the search of which he is competent to issue a search-

warrant.

______

PART IV

PREVENTION OF OFFENCES

_______

CHAPTER VIII1

OPSECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

A. —Security for keeping the Peace on Conviction

106. Security for keeping the peace on conviction.-(1) Whenever any person accused of 2[any offence punishable under Chapter VIII of the Pakistan Penal Code, other than an offence

punishable under Section 143, Section 149, Section 153A or Section 154 thereof, or of] assault or

other offence involving a breach of the peace, or of abetting the same, 3* * *, or any person

accused of committing criminal intimidation, is convicted of such offence before a High Court, a

Court of Session, or the Court of 4* * *[5* **]a Magistrate of the First Class,

and such Court is of opinion that it is necessary to require such person to; execute a bond

for keeping the peace,

such Court may, at the time of passing sentence on such person, order him to execute a bond for a

sum proportionate to his means, with or without sureties, for keeping the peace during such

period/not exceeding three years, as it thinks fit to fix.

(2) if the conviction is set aside on appeal or otherwise, the bond so executed shall

become void.

1Ss. 20 to 26 of the Sind Frontier Regulation, 1892 (3 of 1892), are to be read with and construed as part of this Chapter- see s. 27 of that

Regulation and s. 3, supra. 2Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 15, for “rioting”. 3The words “or of assembling armed men or taking other unlawful measures with the evident intention of committing the same,” rep., ibid. 4The words “a Presidency Magistrate” omitted by A.O., 1949, Sch. 5Omitted by Ord. 37 of 2001, s. 29 (w.e.f. 14-8-2001).

45

(3) An order under this section may also be made by an Appellate Court 1[or by a Court]

exercising its powers of revision.

B.-Security for keeping the Peace in other Cases and security for Good

Behaviour

107. Security for keeping the peace in other cases. Whenever a 2* * [Magistrate of the

First Class] is informed that any person is likely to commit a breach of the peace, disturb the public

tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb

the public tranquillity, the Magistrate 3[if in his opinion there is sufficient ground for proceeding]

may in manner hereinafter provided, require such person to show cause why he should not be

ordered to execute a bond, with or without sureties, for keeping the peace for such period not

exceeding 4[three year] as the Magistrate thinks fit to fix.

(2) Proceeding shall not be taken under this section unless either, the person informed

against or the place where the breach of the peace or, disturbance is apprehended, is within the

local limits of such Magistrate’s jurisdiction, and no proceedings shall be taken before any

Magistrate 5[except with the approval of the Sessions Judge], unless both the persons informed

against and the place where the breach of the peace or disturbance is apprehended, are within the

local limits of the Magistrate’s jurisdiction.

(3) Procedure if Magistrate not empowered to act under sub-section (1). When any

Magistrate not empowered to proceed under sub-section (1) has reason to believe that any person

is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful

act that may probably occasion a breach of the peace or disturb the public tranquillity, and that

such breach of the peace, or disturbance, cannot be prevented otherwise than by detaining such

person in custody, such Magistrate may, after recording his reasons; issue a warrant for his arrest

if he is not already in custody or before the Court and may send him before a Magistrate

empowered to deal with the case together with a copy of his reasons.

1Subs. by the Law Reforms Ordinance, 1972, (12 of 1972) s. 2 and Sch., for “[including a Court hearing appeals under section 407] or by the

High Court when”.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. The words in crotchets were ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s. 15. 2The words “Presidency Magistrate” omitted by A.O., 1949, Sch. 3Ins. by Act 18 of 1923, s. 16. 4Subs. by Ord. 12 of 1972, s.2 & Sch. 5Subs. by Ord. 37 of 2001, s. 30 (w.e.f. 14-8-2001).

46

(4) A Magistrate before whom a person is sent under 1[sub-section (3)] may in his

discretion detain such person in custody 2[pending further action by himself under this Chapter.]

108. Security for good behaviour from persons disseminating seditious matter. Whenever a 13[Magistrate of the First Class] has information that there is within the limits of his

jurisdiction any person who, within or without such limits, either orally or in writing 6[or in any

other manner intentionally] disseminates or attempts to disseminate, or in any wise abets the

dissemination of,-

(a) any seditious matter, that is to say, any matter the publication of which is punishable

under 7[section 123A] or section 124A of the Pakistan Penal Code,( XLV of 1860)

or

(b) any matter the publication of which is punishable under section 153A of the

Pakistan Penal Code, or

(c) any matter concerning a Judge which amounts to criminal intimidation or

defamation under the Pakistan Penal Code,

such Magistrate 6[if in his opinion there is sufficient ground for proceeding] may (in manner

hereinafter provided) require such person to show cause why he should not be ordered to execute

a bond with or without sureties, for his good behaviour for such period, not exceeding one year,

as the Magistrate thinks fit to fix.

No proceedings shall be taken under this section against the editor, proprietor, printer or

publisher of any publication registered under, 8[and edited, printed and published] in conformity

with, 9[the provisions of the Press and Publications Ordinance, 1960, the West Pakistan Press and

Publications Ordinance, 1963(W.P. Ord. XXX of 1963), or any other law relating to Press and

Publication for the time being in force] 6[with reference to any matters contained in such

publication, except by the order or under the authority of 10* * * the 5[Provincial Government] or

some officer empowered 11[by the Provincial Government] in this behalf.

1Subs. by Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 16, for “this section”. 2Subs. by ibid., for “until the completion of the inquiry hereinafter prescribed”. 3The words “Chief Presidency or” omitted by A.O., 1949, Sch. 4The words “Presidency Magistrate or” omitted, ibid. 5Subs. by A.O., 1937, for “L.G.”. 6Ins. by Act 18 of 1923, s. 17. 7Ins. by the Code of Criminal Procedure (Second Amdt.) Act, 1950 (73 of 1950), s. 2. 8Subs. by Act 18 of 1923, s. 17, for “or printed or published”. 9Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., as amended by the Law Reforms (Amdt.), Ordinance, 1975 (24 of 1975), s. 2 and Sch.

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on page 40, supra. 10The words “the G.G. in C., or” rep. by A.O., 1937. 11Subs. ibid., for “by the G.G. in C.”. 12Subs. by Ord. 12 of 1972, s. 2 and Sch. 13Subs. by Ord. 37 of 2001, s. 31 (w.e.f 14-8-2001)

47

109. Security for good behaviour from vagrants and suspected persons. Whenever a 1*

* [Magistrate of the First Class] receive information-

(a) that any person is taking precautions to conceal his presence within the local limits

of such Magistrate's jurisdiction, and that there is reason to believe that such person

is taking such precautions with a view to committing any offence, or

(b) that there is within such limits a person who has no ostensible means of subsistence,

or who cannot give a satisfactory account of himself,

such Magistrate may, in manner hereinafter provided, require such person to show cause why he

should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not

exceeding 5[three years,] as the Magistrate thinks fit to fix.

110. Security for good behaviour from habitual offenders. Whenever a1* *, 6[Magistrate of the First Class] receives information that, any person within the local limits of his

jurisdiction—

(a) is by habit a robber, house-breaker, 2* thief, 3[or forger], or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves or aids, in the concealment or disposal of

stolen property, or

4[(d) habitually commits or attempts to commit, or abets the commission of the offence

of kidnapping, abduction, extortion, cheating or mischief, or any offence

punishable under Chapter XII of the Pakistan Penal Cede, or under section 489A,

section 489B, section 489C or section 489D of that Code, or]

(e) habitually commits, or attempts to commit, or abets the commissions of, offences

involving a breach of the peace, or

(f) is so desperate and dangerous as to render his being at large without security

hazardous to the community,

1The words “Presidency Magistrate” omitted by A.O., 1949, Sch. 2The word “or” rep. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 18. 3Ins. ibid. 4Subs. ibid., for the original clause (d). 5Subs. by Ord. 12 of 1972, s. 2 and Sch. 6Subs. by Ord. 37 of 2001, s. 30 (w.e.f. 14-8-2001)

48

such Magistrate may, in manner hereinafter provided, require such person to show cause why he

should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not

exceeding three years, as the Magistrate thinks fit to fix.

111. [Proviso as to European vagrants.] Rep. by the Criminal Law Amendment Act, 1923

(XII of'1923), s. 8.

1, 2112. Order to be made. When a Magistrate acting under section 107, section 108,

section 109 or Section 110 deems it necessary to require any person to show cause under such

section, he shall make an order in writing, setting forth the substance of the information received,

the amount of the bond to be executed, the term for which it is to be in force, and the number,

character and class of sureties (if any) required.

1, 2113. Procedure in respect of person present in Court. If the person in respect of

whom such order is made is present in Court, it shall be read over to him or, if he so desires, the

substance thereof shall be explained to him.

2114. Summons or warrant in case of person not so present: If such person is not present

in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in

custody, a warrant directing the officer in whose custody be is, to bring him before the Court:

Provided that whenever it appears to such Magistrate, upon the report of a police officer or

upon other information (the substance of which report of information shall be recorded by the

Magistrate), that there is reason to tear the commission of a breach of the peace, and that such

breach of the peace cannot be prevented otherwise than by the immediate arrest of such person,

the Magistrate may at any time issue a warrant for his arrest.

1Ss. 112, 113, 115 and 117 do not apply t an enquiry under s. 22 of the Sindh Frontier Regulation, 1892 (3 of 1892), or under. 42 of the Frontier

Crimes Regulation , 1901 (3 of 1901). 2Ss. 112 to 121 and 123 to 126 and s. 514 apply to all cases requiring security for good behaviour under s. 6 of the Punjab Frontier Crossing Regulation, 1873 (7 of 1873).

49

1,2[115. Copy of order under Section 112 to accompany summons or warrant: Every summons

or warrant issued under Section 114 shall be accompanied by a copy of the order made under

Section 112, and such copy shall be delivered by the officer serving or executing such summons

or warrant to the person served with, or arrested under, the same.

2116. Power to dispense with personal attendance: The Magistrate may, if he sees sufficient

cause, dispense with the personal attendance of any person called upon to show cause why he

should not be ordered to execute a bond for keeping the peace, and may permit him to appear by

a pleader.

1.2[117. Inquiry as to truth of information: When an order under Section 112 has been read or

explained under Section 113 to a person present in Court, or when any person appears or is rought

before a Magistrate in compliance with, or in execution of, asummons or warrant, issued, under

Section 114, the Magistrate shall proceed to inquire into the truth of the information upon which

action has been taken, and to take such further evidence as may appear necessary.

3(2) Such inquiry shall be made, as nearly as may be practicable, in the manner prescribed in

Chapter XX for conducting trial and recording evidence except that no charge need be framed].

4[(3) Pending the completion of the inquiry under sub-section (1) the Magistrate, if he considers

that immediate measures are necessary for the prevention of a breach of the peace or disturbance

of the public tranquillity or the commission of any offence or for the public safety, may, for reasons

to be recorded in writing, direct the person in respect of whom the order under Section 112 has

been made, to execute a bond, with or without sureties, for keeping the peace or maintaining good

behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is

executed or, in default of execution, until the inquiry is concluded:

Provided that:-

(a) no person against whom proceedings are not being taken under Section 108,

Section 109, or Section 110, shall be directed to execute a bond for maintaining

good behaviour, and

(b) the conditions of Such ^bond, whether as to the amount-thereof or as to the

provision of sureties or the number thereof or the pecuniary extent of their liability,

shall not be more onerous that those specified in the , order under Section 112.

1Ss. 112 to 121 and 123 to 126 and s. 514 apply to all cases requiring security for good behaviour under s. 6 of the Punjab Frontier Crossing

Regulation, 1873 (7 of 1873). 1Ss. 112, 113, 115 and 117 do not apply t an enquiry under s. 22 of the Sindh Frontier Regulation, 1892 (3 of 1892), or under. 42 of the Frontier

Crimes Regulation , 1901 (3 of 1901). 3 Subs, by the Law Reforms Ordinance, 1972 (12 of 1972),s.2 and Sch. For “sub-section (2)”. For enforcement of the amendment to the Provinces, see, para 2 of foot-notes 2 on p. 40, supra. 4 Sub-section (3) ins, by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 19.

50

1(4) For the purposes of this section the fact that a person is an habitual offender

2[or is so desperate and dangerous

as to render him being at large without security hazardous to the community may be proved by evidence of general

repute or otherwise.

(5) Where two or more persons have been- associated together in the matter under inquiry, they may be dealt with in

the same or separate inquiries as the Magistrate shall think just.

3118. Order to give security: (1) If, upon such inquiry, it is proved that it is necessary for keeping the peace or

maintaining good behaviour, as the case may be, that the person inrespect of whom the inquiry is made should execute

a bond, with or without sureties the Magistrate shall make an order accordingly:

Provided—

first, that no person shall be ordered to give security of a nature different from, or of an

amount larger than or for a period longer than, that specified in the order made under Section 112;

secondly, that the amount of every bond shall be fixed with due regard to the

circumstances of the case and shall not be excessive ;

thirdly, that when the person in respect of whom the inquiry is made is a minor, the bond

shall be executed only by his sureties.

119. Discharge of person informed against: If, on an inquiry under Section 117, it is not proved that it is necessary

for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the

inquiry is made, should execute a bond the Magistrate shall make an entry on the record to that effect, and if such

person is in custody, only for the purpose of the inquiry, shall release him, or, if such person is not in custody, shall

discharge him.

C.—Proceedings in all cases subsequent to order to furnish security

7 [120. Commencement of period for which security is required: (1) If any person, in respect of whom an order

requiring security is made under Section 106 or Section 118, is, at the time such order is made, sentenced to, or

undergoing a sentence of imprisonment, the period for which such security is required shall commence on the

expiration of such sentence.

(2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason,

fixes a later date.

1[121. Contents of bond: The bond to be executed by any such person shall bind him to keep the peace or to be of

good behaviour, as the case may be, and in the latter case the commission, or attempt to commit, or the abetment of,

any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond.

4[122. Power to reject sureties: (1) A Magistrate may refuse to accept any surety offered, or may reject any surety

previously accepted by him or his predecessor under this chapter on the ground that such surety is an unfit person for

the purposes of the bond :

Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath

into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate

subordinate to him.

(2) Such Magistrate shall, before holding inquiry, give reasonable notice to the surety and to the person by whom the

surety was offered and shall in making the inquiry record the substance of the evidence adduced before him.

(3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before a Magistrate

deputed under sub-section (1), and the report of suchMagistrate (if any) that the surety is an unfit person for the

purpose of the bond, he shall make an order refusing to ccept or rejecting, as the case may be, such surety and recording

his reasons for so doing:

Provided that, before making an order rejecting any surety who has previously been accepted, the Magistrate shall

issue his summons or warrants, as he thinks fit, and cause the person for whom the surety is bound to appear or to be

brought before him.

1 Orignal sub-sections (3) and (4) re-numbered (4) and (5) respectively by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 19. 2 Ins. ibid 3 Ss. 112 to 121 and 123 to 126 and s. 514 apply to all cases requiring security for good behaviour under s. 6 of the Punjab Frontier Crossing Regulation, 1873 (7 of

1873). 4 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s.20 for the original section.

51

52

1123. Imprisonment in default of security: (1) If any person ordered to give security under

Section 106 or Section 118 does not give such security on or before the date on which the period

for which such security is to be given commences, he shall, except in the case next hereinafter

mentioned, be committed to prison, or, if he is already in prison be detained in prison until such

period expires or until within such period he gives the., security to the Court or Magistrate who

made the order requiring it.

(2) Proceedings when to be laid before High Court or Court of Session: When such person has

been ordered by a Magistrate to give security for a period exceeding one year,such Magistrate

shall, if such person does not give such security as aforesaid, issue awarrant directing him to be

detained in prison pending the orders of the Sessions Judge; 2* * *and the proceedings shall be

laid, as soon as conveniently may be; before such Judge.

(3) 3The Sessions Judge, after examining such proceedings and requiring from the Magistrate any

further information or evidence which he thinks necessary, may pass such order on the case as 4[he] thinks fit:

Provided that the period (if any) for which any person is imprisoned for failure to give

security shaft not exceed three years.

5[(3-A) If security has been required in the course of the same proceedings from two or more

persons in respect of any one of whom the proceedings are referred to the Sessions Judge 6* * *

under sub-section (2), such reference shall also include the case of any other of such persons who

has been ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event,

apply to the case of such other person also, except that the period (if any) for which he may be

imprisoned shall not exceed the period for which he was ordered to give security.

(3-B) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub-

section (2) or sub-section (3-A) to an Additional Sessions Judge or Assistant Sessions Judge and

upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the

powers of a Sessions Judge under this section in respect of such proceedings.

(4) If the security is tendered to the officer incharge of the jail. he shall forthwith refer the matter

to the Court or Magistrate who made the border, and shall await the orders of such Court or

Magistrate.

1 Ss. 112 to 121 and 123 to 126 and s. 514 apply to all cases requiring security for good behaviour under s. 6 of the Punjab Frontier Crossing

Regulation, 1873 (7 of 1873). 2 The words and comas “ or, if such Magistrate is Presidency Magistrate, pending the orders of the High Court “ omitted by A.O, 1949, Sch. 3 Subs. Ibid., for “such court”. 4 Subs. Ibid., for “it”. 5 Sub-sections (3A) and (3B) ins. By the Code of Criminal Procedure (Amdt) Act, 1923 (18 of 1923), s. 21. 6 The words “or the High Court” omitted by A.O, 1949, Sch.

53

(5) Kind of imprisonment: Imprisonment for failure to give security for keeping the peace shall

be simple.

(6) Imprisonment for failure to give security for good behaviour 1[shall, where the proceedings

have been taken under Section 108 2* * * be simple and, where the proceedings have been taken

under 3[Section 109 or] Section 110, be rigorous or simple as the Court of Magistrate m each case

directs.

4124. Power to release persons imprisoned for failing to give security: (1) Whenever the

[Sessions Judge 5* * *s of opinion that any person imprisoned for failing to give security under

this Chapter 6* * *may be released without hazard to the community or to any other person,

he may order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this Chapter, 7*

* *the [Sessions Judge] may (unless the order has been made by some Court superior to his own)

make an order reducing the amount of the security or the number of sureties or the time for which

security has been required.

8[(3) An order under sub-section (1) may direct the discharge of such person either without

conditions or upon any conditions, which such person accepts:

Provided that any condition imposed shall cease to be operative when the period for which such

person was ordered to give security has expired.

9[(4) The 10[Provincial Government may prescribe the conditions upon which a conditional

discharge may be made.

(5) If any condition upon which any such person has been discharged is, in the opinion of the

[Sessions Judge]11* * * by whom the order of discharge was made or of his successor, not

fulfilled, he may cancel the same.

(6) When a conditional order of discharge has been cancelled under sub-section (5) such person

may be arrested by any police-officer without warrant, and shall thereupon be produced before the

[Sessions Judge.]

1 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.21 for “may”. 2 The words and figures “ or section 109” rep. by the Code of Criminal Procedure (Second Amdt.) Act, 1926 (10 of 1926), s.2. 3 Ins. ibid 4 Ss. 112 to 121 and 123 to 126 and s. 514 apply to all cases requiring security for good behaviour under s. 6 of the Punjab Frontier Crossing

Regulation, 1873 (7 of 1873). 5 The words “or a Chief Presidency Magistrate” omitted by A.O., 1949, Sch. 6 The words “whether by the order of such Magistrate or that of his predecessor in office, or of some subordinate Magistrate, “rep. by Act 18 of

1923, s.22. 7 The words “Chief Presidency or “ omitted by A.O., 1949, Sch. 8 Subs. For the original sub-section (3), by Act 18 of 1923, s.22. 9 Sub Sections (4), (5) and (6) ins. By the Code of Criminal Procedure (Amdt.) Act; 1923 (18 of 1923), s. 22. 10 Subs. By A.O., 1937, for “I.G”. 11 The words “or Chief Presidency Magistrate” omitted by A.O., 1949. Sch.

54

Unless such person then gives security in accordance with the terms of the original order for the

unexpired portion of the term for which he was in the first instance committed or ordered to be

detained (such portion being deemed to be a period equal to the period between the date of the

breach of the conditions of discharge and the date on which, except for such conditional discharge,

he would have been entitled to release), the [Sessions Judge] may remand such person to prison

to undergo such unexpired portion.

A person remanded to prison under this sub-section shall, subject to the provisions of

Section 122 be released at any time on giving security in accordance with the terms of the original

order for the unexpired portion aforesaid to the Court or Magistrate by whom such order was made,

or to its or his successor.

1125. Power to District Magistrate to cancel any bond for keeping the peace or good

behaviour: The 2* * *[Sessions Judge] may, at any time, for Sufficient reasons to be recorded

in writing, cancel any bond for keeping the peace or for good behaviour executed under this

Chapter by order of any Court in his district riot superior to his Court.

126. Discharge of sureties: (1) Any surety for the peaceable Conduct or good behaviour of another

person may at any time apply to 3* * *[concerned Magistrate of the First Class]

to cancel any bond executed under this Chapter within the local limits of his jurisdiction.

(2) On such application being made, the Magistrate shall issue his summons or warrant, as he

thinks fit, requiring the person for whom such surety is bound to appear or to be brought before

him.

4[126-A. Security for unexpired period of bond: 5[When a person for whose appearance a

warrant or summons has been issued under the proviso to sub-section (3) of Section 122 or under

Section 126, sub-section (2), appears or is brought before him, the Magistrate shall cancel the bond

executed by such person and shall order such person to give, for the unexpired portion of the term

of such bond, fresh security of the same description as the original security. Every such order shall,

for the purposes of Sections 121, 122, 123and 124 be deemed to be an order made under Section

106 or Section 118, as the case may be.

1 Ss. 112 to 121 and 123 to 126 and s. 514 apply to all cases requiring security for good behaviour under s. 6 of the Punjab Frontier Crossing Regulation, 1873 (7 of 1873). 2 The words “Chief Presidency or” omitted by A.O., 1949, Sch. 3 The words “Presidency Magistrate” omitted, ibid. 4 Sub-Section (3) of s. 126 re-numbered as s. 126A by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 23. 5 Subs ibid., for “when such person appears or is brought before the Magistrate, such Magistrate shall cancel the bond”.

55

CHAPTER IX

UNLAWFUL ASSEMBLIES [AND MAINTENANCE OF PUBLIC PEACE

AND SECURITY

127. Assembly to disperse on command of Magistrate or police officer: (1) Any officer

incharge of a police station may command any unlawful assembly, or any assembly of five or more

persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the

duty of the members of such assembly to disperse accordingly.

1* * * * * *

128. Use of civil force to disperse: If, upon being so commanded, any such assembly does not

disperse, or if, without being so commanded, it conducts itself in such a manner as to show a

determination not to disperse, any officer incharge of a police-station,2* * * may proceed to

disperse such assembly by force and may require the assistance of any male person, not being an

officer, 3[soldier, sailor or airman in 4[the Armed Forces of Pakistan 5* * *and, acting as such,

for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons

who form part of it, in order to, disperse such assembly or that they may be punished according to

law:

[provided that for diapering any assembly, firing shall not be resorted to except under the

specific directions of an officer of the police not below the rank of an Assistant

Superintendent or Deputy Superintendent of Police.]

129. Use of military force: If any such assembly cannot be otherwise dispersed, and if it is

necessary for the public security that it should be dispersed, the the police officer of the highest

rank not below an Assistant Superintendent, or Deputy Superintendent, of Police who is present

may cause it to be dispersed by 6[the armed forces].

130. Duty of officer commanding troops required by Magistrate to disperse assembly: 7[(1)

When a police officer of the highest rank not below an Assistant Superintendent, or Deputy

Superintendent, of Police determines to disperse any such assembly by the armed forces; he may

require any officer thereof in command of any group of persons belonging to the armed forces to

disperse such assembly with the help of the armed forces under his command and to arrest and-

confine such persons forming part of it as the Magistrate or such Police officer may direct, or as it

may be necessary to arrest and confine in order to disperse the assembly or to have them punished

according to law.[

1 Sub-section (2) omitted by A.O., 1949, Sch. 2 The words, “whether within or without the presidency-towns” omitted ibid. 3 Sub, by A.O., 1961, art. 2 and Sch., for “His Majesty’s Army, Navy or Air Force” (with effect from the 23 rd

March, 1956). 4 Subs. By A.O, 1961, Art. 2 and Sch, for “His Majesty’s Army, Navy or Air Force” (With effect from the 23 rd

March, 1956.) 5 The words “or a volunteer enrolled under the Indian Volunteers Act, 1869” omitted by the Law Reforms

Ordinance, 1972 (12 of 1972), s. 2 and Sch.

For enforcement of this amendment in the Provinces, see para 2 of foot-note 2 on page 40, supra 6 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1975 (49 of 1975), s.2, for “military force” (w.e.f 25-4-75) 7 Subs. Ibid, s.3, for “sub-section (1).”

56

(2) Every such officer shall obey such requisition in such manner as he thinks fit, but in so doing

he shall use as little force, and do as little injury to person and property, as may be consistent with

dispersing the assembly and arresting and detaining such persons.

131. Power of commissioned military officers to disperse assembly: When the public security

is manifestly endangered by any such assembly, and when [no police officer of the highest rank

not below an Assistant Superintendent, or Deputy Superintendent, of Police can be communicated

with, any commissioned officer of 1[the Pakistan] Army may disperse such assembly by military

force, and may arrest and confine any persons forming part of it, in order to disperse such assembly

or that they may be punished according to law; but if, white, he is acting under this section, it

becomes practicable for him to communicate with a Police officer not below the rank of Assistant

Superintendent or Deputy Superintendent of Police. he shall do so, and shall thenceforward obey

the instructions of the such Police officer as to whether he shall or shall not continue such action.

132. Protection against prosecution for acts done under this Chapter: No prosecution against

any person for any act purporting to be done under this Chapter shall be instituted in any

Criminal Court, except with the sanction of the 2[Provincial Government]; and\

(a) no police officer acting under this Chapter in God faith,

(b) no officer acting under Section 131 in good faith,

(c) no person doing any act in good faith, in compliance with a requisition

under Section 128 or Section 130 3[or Section 131-A]; and

(d) no inferior officer, or soldier, 4[sailor or airman in the armed forces] doing

any act in obedience to any order which he was bound to obey,

shall be deemed to have thereby committed an offence:

5[Provided that no such prosecution shall be instituted in any Criminal Court against any

officer or 6[sailor or airman in the armed forces] except with the sanction of the 7[Federal

Government].

1 Subs. By A.O. 1961, Art, 2 and Sch, for “Her Majesty’s” (with effect from the 23rd March, 1961). 2 Subs. By A.O 1937, for “L.G” which had been subs., for “G.G in C.” by the Devolution Act., 1920 (38 of 1920),

s.2 and Sch. 1 3 Ins. By the Code of Criminal Procedure (Amdt.) Ordinance, 1988 (15 of 1988), s. 4. 4 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1975 (49 of 1975), s. 4, for “or volunteer” (w.e.f 24-4-75). 5 This provision was ins. By the Devolution Act, 1920 (38 of 1920), s.2 and Sch. I. 6 Subs. By Act 49 of 1975, s.4 for “soldier in the Pakistan Army” the words in crotchets were subs. By A.O, 1961

Art, 2 and Sch. For “his Majesty’s “ (w.e.f 23.3.56). 7 Subs. By F.A.O , 1975 Art.2 and Table for “Central Government.:; which was previously amended by A.O, 1937,

for “G.G in C.”

57

1[132-A. Definitions: In this Chapter--

(a) the expression "armed forces" means the military, naval and air forces, operating as land

forces and includes 2* * *any other armed forces of Pakistan so operating; 4[(aa) the expression “civil armed forces mean the Pakistan Rangers Frointier Corps”. Frontier

Constabulary, Balochistan Constabulary, Pakistan Coast Gaurds or any other force as the Federal

Government may notified. ]

(b) "officer", in relation to the armed forces, means a person commissioned, gazetted or in pay

as an officer of the armed forces and includes a junior commissioned officer, awarrant officer, a

petty officer and a non-commissioned officer; and

(c) soldier" includes a member of the force constituted under the Act referred to in clause

CHAPTER X

PUBLIC NUISANCES

3[133. Conditional order for removal of nuisance: (1) Whenever a Magistrate of the First Class

considers, on receiving a police-report or other information and on taking

such evidence (if any) as he thinks fit,

that any unlawful obstruction or nuisance should be removed from any way, river or channel which

is or may be lawfully used by the public, or from any public place, or

that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is

injurious to the health or physical comfort of the community, and: that in consequence of such

trade or occupation should be prohibited or regulated or such goods or merchandise should be

removed or the keeping thereof regulated, or

that the construction of any building, or the disposal of any substance, as is likely to occasion

conflagration or explosion, should be prevented or stopped, or that any building, tent or structure,

or any tree is in such a condition that it is likely to fait and thereby cause injury to persons living

or carrying on business in the neighbourhood or passing by, and that in consequence the removal,

repair or support of such building, tent or structure, or the removal or support of such tree, is

necessary, or

that any tank, well or excavation adjacent to any such way or public place should be

fenced in such manner as to prevent danger arising to the public, or

that any dangerous animal should be destroyed, confined or otherwise disposed of,

such Magistrate may make a conditional order requiring the person causing-such

obstruction or nuisance or carrying on such trade or occupation, or keeping any such

1 New section 132A ins. By Act, 49 of 1975, s.5. 2 Certain words omitted by the Deral Laws (Revision and Declaration Ordinance, 1981 (27 of 1981), s.3 and Second

Sch. 3 Subs, by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 24 for the original section 133. 4Ins. by Ord. 81 of 2002. And S.4-5.

58

goods or merchandise, or owning, possessing or controlling such building, tent, structure,

substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to

be fixed in the order,

to remove such obstruction or nuisance; or

to desist from carrying on, or to remove or regulate in such manner as maybe directed,

such trade or occupation, or

to remove such goods or merchandise, to regulate the keeping thereof in such manner as may be

directed; or

to prevent or stop the erection of, or to remove, repair or support, such building, tent or

structure; or

to remove or support such tree, or to alter the disposal of such substance; or to fence such tank,

well or excavation, as the case may be; or .

to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do,

to appear before himself or some other 3[Magistrate of the First Class] or Second Class, at a time

and place to be fixed by the order, and move to have the order set aside or modified in the manner

hereinafter provided.

(2) No order duty made by a Magistrate under this section shall be called in question in

any Civil Court.

134. Service or notification of order: (1) The order shall, if practicable, be served on the person

against whom it is made, in manner herein provided for service-of a summons.

(2) If such order cannot be so served, it shall be notified by proclamation published in such manner

as the 1[Provincial Government] may by rule direct, and a copy thereof shall be stuck up at such

place or places as may be fittest for conveying the information to such person.

135. Person to whom order is addressed to obey or show cause or claim jury: The person

against whom such order is made shall

(a) perform within the time 2[and in the manner] specified in the order, the act directed thereby; or

(b) appear in accordance with such order and either show cause against the same, or apply to the

Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper.

1 Subs. By A.O, 1937, for “L.G”. 2 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s. 25. 3subs. by Ord. 37 of 2002, S.43(w.e.f 14-08-2001).

59

136. Consequence of his failing to do so: If such person does not perform such act or appear and

show cause or apply for the appointment of a jury as required by Section 135, he shall be liable to

the penalty prescribed in that behalf in Section 188 of the Pakistan Penal Code and the order shall

be made absolute.

137. Procedure where he appears to show cause: (1) If he appears and shows' cause against the

order, the Magistrate shall take evidence 1[in the manner provided in Chapter XX].

(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further

proceedings shall be taken in the case.

(3) If the Magistrate is not so satisfied, the order shall be made absolute.

138. Procedure when he claims Jury : (1) On receiving an application, under Section 135 to

appoint a jury, the Magnate shall;

(a) forthwith appoint a jury consisting of an uneven number of persons not jess than five,

of whom the foreman and one-half of the remaining members shall be nominated by such

Magistrate, and the other members by the applicant;

(b) summon such foreman and members to attend at such place and time as the

Magistrate thinks fit; and

(c) fix a time within which they are to return their verdict-

(2) The time so fixed may, for good cause shown, be extended by the Magistrate.

139. Procedure where jury finds Magistrate's order to be reasonable: If the jury or a majority

of the jurors find that the order of the Magistrate is reasonable and proper as originally made, or

subject to a modification which the Magistrate accepts, the Magistrate shall make the order

absolute, subject to such modification (if any).

(2) In other cases no further proceedings shall be taken under this Chapter.

2[139-A. Procedure where existence of public right is denied: (1) Where an order is made under

Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use

of any way, river; channel or place, the Magistrate shall, on the appearance before him of the

person against whom the order was made, question him as to whether he denies the existence of

any public right in respect of the way, river, channel or place, and if he does so, the Magistrate

shall, before proceeding under Section 137 or Section 138 inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such

denial, he shall stay the proceeding until the matter of the existence of such right has been decided

1 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “as in a summons case”.

For enforcement of this amendment in the Province, see, para 2 of foot-note 2 on p.40, supra. 2 S.139A ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 26.

60

by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid

down in Section 137 or Section 138, as the case may require.

(3) A person who has, on being questioned by the Magistrate under sub-section (1) failed to deny

the existence of a public right of the nature therein referred to, or who, having made such denial,

has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings

be permitted to make any such denial, nor shall any question in respect of the existence of any

such public right be inquired into by any jury appointed under Section 138.

140. Procedure on order being made absolute: (1) When an order has been made absolute under

Section 136, Section 137 or Section 139, the Magistrate shall give notice of the same to the person

against whom the order was made, and shall further require him to perform the act directed by the

order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will

be liable to the penalty provided by Section 188 of the Pakistan Penal Code.

(2) Consequences of disobedience to order: if such act is not performed within the time fixed,

the Magistrate may cause it to be performed, and may recover the costs of performing it, either by

the sate of any building, goods or other property removed by his order, or by the distress and sale

of any other movable property of such person within or without the local limits of such Magistrate's

jurisdiction. If such other property is without such limits, the order shall authorise its attachment

and sale when endorsed by the Magistrate within the local limits of whose jurisdiction the property

to be attached is found.

(3) No suit shall lie in respect of anything done in good faith under this section.

141. Procedure on failure to appoint jury or omission to return verdict: If the applicant, by

neglect or otherwise, prevents the appointment of the jury, or if from any cause the jury appointed

do not return their verdict within the time fixed or within such further time as the Magistrate may

in his discretion allow, the Magistrate may pass such order as he thinks fit, and such order shall be

executed in the manner provided by Section 140.

142. Injunction pending Inquiry: (1) If a Magistrate making an order under Section 133

considers that immediate measures should be taken to prevent imminent danger or injury of a

serious kind to the public, he may, whether a jury is to be or has appointed w not, issue such an

injunction to the person against whom the order was made, as is required to obviate or prevent

such danger or injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use,

or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.

(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this

section.

143. Magistrate may prohibit repetition or continuance of public nuisance: A 1[Magistrate

of the First Class]; may order any person not to repeat or continue a public nuisance, and defined

in the Pakistan Penal Code or any special or Local law.

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_______________________

CHAPTER XI

TEMPORARY ORDERS IN URGENT CASES OF NUINANCE OR

APPREHANDED DANGER

144. Power to issue order absolute at once in urgent cases of nuisance or apprehended

danger: (1) in cases where, in the opinion of 4[the Zila Nazim upon the written recommendation

of the District Superintendent of Police or Executive District Officer] [ there is sufficient ground

for proceeding under this section and immediate prevention or speedy remedy is desirable. 4[the

Zila Nazim] may, by a written order stating the material facts of the case and served in manner

provided by Section 134, direct any person to abstain from a certain act or take certain order with

certain property in his possession or under his management, if such Magistrate considers that such

direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of

obstruction, annoyance or injury, to any person lawfully employed, or clanger to human life, health

or safety, or a disturbance of the public tranquillity, or a riot, or an affray.

(2) An order under this section may, in case of emergency or In cases where the circumstances do

not admit of the serving in due time of a notice upon the person against whom the order is directed,

be passed, exparte.

(3) An order under this section may be directed to a particular individual, or to the public generally

when frequenting or visiting a particular place.

(4) 4[The Zila Nazim] may, 2[either, on his own motion or on the application of any person

aggrieved], rescind or alter any order made under this section by himself or by his predecessor-in-

office 4[Zila Nazim]. 2[(5) Where such an application is received, the Magistrate shall afford to the applicant an early

opportunity of appearing before him either in person or by pleader and showing cause against the

order; and, if the 4[Zila Nazim] rejects the application wholly or in part, he shall record in writing

his reasons for so doing.

5[(6) No order under this section shall remain in force for more than two 5[consecutive days and

not more than seven days in a month] from the making thereof; unless, in cases of danger to human

life, health or safety, or a likelihood of a riot or an affray, the 3[Provincial Government], by

notification in the official Gazette, otherwise directs.]

6[(7) In the application of sub-sections (1) to (6) to the districts where the local Government

elections have not been held, or the Zila Nazim has not assumed charge of office, any reference in

those provisions to the 4[Zila Nazim] shall be read as a reference to the District Coordination

Officer in relation to such districts: 1Subs. by Ord. 37 of 2001, & .14 (W.e.f. 14-08-2001) 2Ins. by the Code of Criminal Procedure (Amdt) Act, 1923(18 of 1923), S.27. 3Subs. by A.O., 1937, for “L.G.”. 4Subs. + omitted by Ord. 37 of 2001 S.45(w.e.f. 14-08-2001). 5The Orignal Sub-section(5) was re-numbered (6) Act 18 of 1923, Section. 27. 8Added by Ord. 43 of 2001, S. 4-5(w.e.f 14-08-2001)

62

Provided that this sub-section shall cease to have effect, and shall be deemed to have been repealed,

at the time when local Governments are installed in the districts as aforesaid.]

CHAPTER XII

DISPUTES AS TO IMMOVABLE PROPERTY

145. Procedure where dispute concerning land, etc., is likely to cause breach of peace: (1)

Whenever a 2[Magistrate of the First Class is Satisfied from a police] report or other information

that a dispute likely to cause a breach of the peace exists concerning any land or water or the

boundaries thereof within the local limits of his jurisdiction, he shall make an order in writing,

stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to

attend his Court in person or by pleader, within a time to be fixed by such Magistrate and to put in

written statements of their respective claims as respects the fact of actual possession of the subject

of dispute.

(2) For the purposes of this section the expression "land or water" includes buildings, markets,

fisheries, crops or other produce of land. and the rents or profits of any such property.

(3) A copy of the order shall be served in manner provided by this Code for the service of a

summons upon such person or persons as the Magistrate may direct, and at least one copy shaft be

published by being affixed to some conspicuous place at or near the subject of dispute.

(4) Inquiry as to possession: The Magistrate shall then, without reference to the merits or the

claims of any of such parties to a right to possess the subject of dispute peruse the statements so

put in, hear the parties, 1[receive all such evidence as may be] produced by them respectively,

consider the effect of such evidence, take such further evidence (if any) as he thinks necessary,

and, if possible, decide whether any and which of the parties was at the date of the order before

mentioned in such possession of the said subject:

Provided that, if it appears to the Magistrate that any party has within two months next before the

date of such order been forcibly and wrongfully dispossessed, he may treat the party so

dispossessed as if he had been in possession at such date:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time

attach the subject of dispute, pending his decision under this section.

(5) Nothing in this section shall-preclude any party so required to attend or any other person

interested, from showing that no such dispute as aforesaid exists or has existed; and in such case

the Magistrate shall cancel his said order, and all further

1 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 28, for “receive the evidence”. 2Subs. by Ord.37 of 2001, S. 46 (w.e.f 14-08-2001).

63

proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate

under sub-section (1) shall be final.

(6) Party in possession to retain possession until legally evicted: If the Magistrate decides that

one of the parties was 1[or should under the first proviso to sub-section (4) be treated as being in

such possession of the said subject he shall issue an order declaring such party to be entitled to

possession thereof until evicted there from in due course of law, and forbidding alt disturbance of

such possession until such eviction and when he proceeds under the first proviso to sub-section

(4), may restore to possession the party forcibly and wrongfully dispossessed.]

2[(7) When any party to any such proceeding dies, the Magistrate may cause the legal

representative of the deceased party to be made a party to the proceeding and shall thereupon

continue the inquiry and if any question arises as to who the legal representative of a deceased

party for the purpose of such proceeding is, all persons claiming to be representatives of the

deceased party shall be made parties thereto.]

3[(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of

dispute in a proceeding under this section pending before him, is subject to speedy and natural

decay, he may make an order for the proper custody or sale of such property, and, upon the

completion of the inquiry, shall make such order for the disposal of such property , or the sale-

proceeds thereof, as he thinks fit.]

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the

application of either party, issue a summons to any witness directing him to attend or to produce

any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the

Magistrate, to proceed under Section 107.

146. Power to attach subject of dispute: (1) If the Magistrate decides that none of the parties was

then in such possession, or is unable to satisfy himself as to which of them was then in such

possession of the subject of dispute, he may attach it until a competent, Court has determined the

rights of the parties thereto, or the person entitled to possession thereof:

4[Provided that the Magistrate who had attached the subject of dispute may withdraw the

attachment of any item if he is satisfied that there is no longer any likelihood of a breach of the

peace in regard to the subject of dispute.]

(2) When the Magistrate attaches the subject of dispute. he may, if he thinks fit and if no receiver

of the property, the subject of dispute, has been appointed by any Civil Court appoint a receiver

1 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923 (18 of 1923), s.28. 2 Subs. Ibid, for the original sub-section (7). 3 Sub-sections (8), (9) and (10) ins. Ibid. 4 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 29.

64

thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver

appointed under the 1[Code of Civil Procedure, 1908:

2[Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently

appointed by any Civil Court, possession shall be made over to him by the receiver appointed by

the Magistrate, who shall thereupon be discharged.

2[147. Dispute concerning rights of use of immovable property, etc.: (1) Whenever any

agistrate of the First Class is satisfied, from a police-report or other information that a dispute

ikely to cause a breach of the peace exists regarding any alleged right of user of any land or ater

as explained in Section 145, sub-section (2) (whether such rights be claimed as an easement or

therwise) within the local limits of his Jurisdiction, he may make an order in writing stating the

rounds of his being so satisfied and requiring the parties concerned in such dispute to attend the

ourt in person or by pleader within a time to be fixed by such Magistrate and to put in writing

statements of their respective claims, and shall thereafter inquire into the matter in the manner

provided in Section 145, and the provisions of that section shall, as far as may be, be applicable in

the case of such inquiry.

(2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any

interference with the exercise of such right: Provided that no such order shall be made where the

right is exercisable at all times of the year, unless such right has been exercised within three months

next before the institution of the inquiry, or where the right is exercisable only at particular seasons

or on particular occasions, unless the right has been exercised during the last of such seasons or on

the last of such occasions before such institution.

(3) If it appears to such Magistrate that such right does not exist, he may make an order prohibiting

any exercise of the alleged right.

(4) An order under this section shall .be subject to any subsequent decision of a Civil Court of

competent jurisdiction.

148. Local inquiry: (1) Whenever a local inquiry is necessary for the purposes of this Chapter,

44[a Sessions Judge] may depute any Magistrate subordinate to him to make the inquiry and may

furnish him with such written instructions as may seem necessary for his guidance, and may

declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.

(2) The report of the person so deputed may be read as evidence rn the case.

(3) Order as to costs: When any costs have been incurred by any party to a proceeding under this

Chapter 3* * *the Magistrate passing a decision under Section 145, Section 146 or Section 147

may direct by whom such costs shall be paid, whether by such party or by any other party to the

1 Subs. By the Law Reforms Ordinance, 1972, (12 of 1972), s.2 and Sch., for “Code of Civil Procedure”.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 2 on p.40, supra. 2 Subs. By Act 18 of 1923, s. 30, for the original section 147. 3 The words “for witness, or pleader’s fees, or both” rep. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18

of 1923), s. 31.

65

proceeding, and whether in whole or in part or proportion, 1[such costs may include any expenses

incurred in respect of witnesses, and of pleader's fees, which the Court may consider reasonable.

___________________

CHAPTER XIII

PREVENTIVE ACTION OF THE POLICE

149. Police to prevent cognizable offences: Every police officer may interpose for the purpose

of preventing, and shall, to the best of his ability, prevent the commission of any cognizable

offence.

150. Information of design to commit such offences: Every police officer receiving information

of a design to commit any cognizable offence shall communicate such information to the police

officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take

cognizance of the commission of any such offence.

151. Arrest to prevent such offences: A police officer knowing of a design to commit any

cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person

so designing, if it appears to such officer that the commission of the offence cannot be otherwise

prevented.

152. Prevention of injury to public property: A police officer may of his own authority interpose

to prevent any injury attempted to be committed in his view to any public property, movable or

immovable, or the removal or injury of any public landmark or buoy or other mark used for

navigation.

153. Inspection of weights and measures: (1) Any officer incharge of a police station may,

without a warrant, enter any place within the limits of such station for the purpose of inspecting or

searching for any weights or measures or instruments for weighing, used or kept therein whenever

he has reason to believe that there are in such place any weights, measures or instruments for

weighing which are false.

(2) If he finds in such place any weights, measures or instruments for weighing which are raise, he

may seize the same, and shall forthwith give information of such seizure to a Magistrate having

jurisdiction.

PART V

INFORMATION TO POLICE AND THEIR POWERS TO INVESTIGATE

CHAPTER XIV

154. Information in cognizable cases: information relating to the, commission of a cognizable

offence if given orally to an officer incharge of a police station, shall reduced to writing by him or

under his direction and then read over to the informant and every such information, whether given

1 Subs. Ibid., for “All costs so directed to be paid may be recovered as if they were fines”.

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in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the

substance thereof shall be entered in a book to be kept by such officer in such form as the 1[Provincial Government] may prescribe in this behalf:

155. Information in non-cognizable cases: (l) When information is given to an officer incharge

of a police station of the commission within the limits of such station of a noncognizable offence,

he shall enter in a book to, be kept as aforesaid the substance of such information and refer the

information the Magistrate.

(2) Investigation into non-cognizable cases: No police-officer shall investigate a noncognizable

case without the order of a Magistrate of the First or Second Class having power to try such case 2[or send the same for trial to the Court of Session].

(3) Any police officer receiving such order may exercise, the, same powers in respect of the

investigation (except the power to arrest without warrant) as an officer incharge of a police-station

may exercise in a cognizable case.

156. Investigation into cognizable cases: (1) Any officer incharge of a police-station may,

without the order of a Magistrate, investigate any cognizable case which a Court having

jurisdiction over the local area within the limits of such station would, have power to inquire into

or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of a police-office in any such case shall at any stage be called in question on

the ground that the case was one, which such officer was not empowered under this section to

investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above

mentioned.

3[(4) Notwithstanding anything contained in sub-sections (2) or (3) no police-officer shall

investigate an offence under Section 497 or Section 498 of the Pakistan Penal Code, except upon

a complaint made by the husband of the woman, or, in his absence by some person who had the

care of such woman on his behalf at the time when such offence was committed.

5[156 A. Investigation of offence under section 295 C, Pakistan Penal Code:

Notwithstanding anything contained in this Code no police officer below the rank of a

Superintendent of Police shall investigate the offence against any person alleged to have been

committed by him under section 295 C of the Pakistan Penal Code, 1860 (Act XLV of 1860)

1 Subs. By A.O., 1937, for L.G.”. 2 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch for “or commit the same for trail or of a

Presidency Magistrate”.

For enforcement of this amendment in the Provinces, see, para.2 of footnote 3 on p. 40, supra. 3 Sub-section (4) added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendment in the Province, see, para 2 of foot-note 3 on p. 40, supra.

67

156. B. Investigation against a woman accused of the offence of zina…:Notwithstanding

anything contained in this Code, where a person is accused of offence of zina under the Offence

of zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) no police officer below the rank

of a Supreintended of Police shall investigate such offence nor shall such accused be arrested

without permission of the court.

Explanation: in this section zina does not include ‘zina-bil-jabr’

157. Procedure where cognizable offence suspected: (1) If from information received or

otherwise, an officer incharge of a police-station has reason to suspect the commission of an

offence which he is empowered under Section 156 to investigate, he shall forthwith send a report

of the same to a Magistrate empowered to take cognizance of such offence upon a police-report

and shall proceed in person, or shall depute one of his subordinate officers 1[not being below such

rank as the 2[Provincial Government] may, by general or special order, prescribe in this behalf to

proceed, to the spot, to investigate the facts and circumstance of the case, 3[and, if necessary, to

take measures] for the 'discovery and arrest of the offender:

Provided as follows: --

(a) Where local investigation dispensed with: When any information as to the

commission of any such offence is given against any person by name and the case is not of a

serious nature, the officer incharge of a police-station need not proceed in person or depute a

subordinate officer to make an investigation on the spot;

(b) Where police-officer incharge sees no jsufficient ground for investigation: if it appears to

the officer incharge of a police station that there is no sufficient ground for entering on an

investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the

officer incharge of the police-station shall state in his said report his reasons for not fully

complying with the requirements of that sub-section, 4[and, in the case mentioned in clause (b)

such officer shall also forthwith notify to the informant, if any, in such manner as may be

prescribed by the 5[Provincial Government] the fact that he will not investigate the case or cause

it to be investigated.

158. Reports under Section 157 how submitted: (1) Every report sent to a Magistrate under

Section 157 snail, if the Provincial Government so, directs, be submitted through such superior

officer of police as the 2[Provincial Government], by general or special order, appoints in that

behalf.

1 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 32. 2 Subs. By AO 1937, for “L.G”. 3 Subs. By Act 18 of 1923, s. 32 for “and to take such measures as may be necessary”.

5 Ins. By Act. I of 5, 4 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923). S.32. 5 Subs. By A.O, 1937, for “L.G”.

68

(2) Such superior officer may give such instructions to the officer incharge of the policestation as

he thinks fit, and shall, after recording such instructions on such report, transmit the same without

delay to the Magistrate.

159. Power to hold investigation or preliminary inquiry: Such Magistrate, on receiving such

report may direct an investigation or, if he thinks fit at once proceed, or depute any Magistrate

subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the

case in manner provided in this Code.

160. Police-officer's power to require attendance of witnesses: Any police-officer making an

investigation under this Chapter may, by order in writing, require the attendance before himself of

any person, being within the limits of his own or any adjoining station who, from, the information

given or otherwise, appears to be acquainted with the circumstances of the case; and such person

shall attend as so required.

161. Examination of witnesses by police: (1) Any police-officer making an investigation under

this Chapter 1[or any police-officer not" below such rank as the Provincial Government may, by

general or special order, prescribe in this behalf, acting on the requisition of such officer may

examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer all- questions relating to such case put to him by such

officer, other than questions the answers to which would have a tendency to expose him to a

criminal charge or to a penalty or forfeiture.

2[(3) The police officer may reduce into writing any statement made to him in the course of an

examination under this section, and if he does so he Shall make a separate record of the statement

of each such person whose statement he records.]

162. Statements to police not to be signed, use of such statements in evidence: 3[(1) No

statement made by any person to a police-officer in the course of an investigation under this

Chapter shall if reduced into writing be signed by the person making it; nor shall-any such

statement or any record thereof whether in a police-diary or otherwise or any part of such statement

or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect

of any offence under investigation at the. Time when such statement was made:

Provided that, when any witness is called for the prosecution in such inquiry or trial whose

statement has been reduced into writing as aforesaid the Court shall on the request of the accused,

refer to such writing and direct that the accused be furnished with a copy thereof, in order that any

part of such statement, if duly proved, may be used to contradict such witness in the manner

provided by Section 145 of the Evidence Act, 1872. When any part of such statement is so used,

any part thereof may also be used in the re-examination of such witness, but for the purpose only

of explaining any matter referred to in his cross examination:

1 Ins. By Act 18 of 1923. 2 Sub-section (3) added by the Code of Criminal Procedure (Amdt.) Act, 1945, s.2. 3 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 34 for the original sub-section (1).

69

Provided further, that, if the Court is of opinion that any part of any such statement is not relevant

to the subject-matter of the Enquiry or trial or that its disclosure to the accused is not essential in

the interests of justice and is inexpedient in the public interests, it shall record such opinion (but-

not the reasons therefore) and shall exclude such part from the copy of the statement furnished to

the accused.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions

of Section 32, clause (1) of the Evidence Act, 1872 1[or to affect the provisions of Section 27 of

that Act.

163. No inducement to be offered: (1) No police officer or other person in authority shall offer

or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned

in the Evidence Act, 1872, Section 24.

(2) But no police officer or other person shall prevent by any caution or otherwise, any person

from making in the course of any investigation: under this Chapter any statement, which he may

be disposed to make of his, own free will.

164. Power to record statements and confessions: (1) 2[3* * *Any Magistrate of the First

Class and any Magistrate of the Second Class specially empowered in this behalf by the 4[Provincial Government] may, if he is not a police officer, record any statement or confession

made to him in the course of an investigation under this Chapter or at any time afterwards before

the commencement of the inquiry or trial.

5[(1-A) Any such statement may be recorded by such Magistrate in the presence of the accused,

and the accused given an opportunity of cross-examining the witness making the statement,

(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording

evidence as is, in his opinion, best fitted for the circumstances of the case: Such confessions shall

be recorded and signed in the manner provided in Section 364, and such statements or confessions

shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried-

(3) 6[A Magistrate shaft, before recording any such confessions explain to the person making it

that he is not bound to make a confession and that if he does so it may be used as evidence against

him and no Magistrate shall record any such confession unless, upon questioning the person

making it, he has reason to believe that it was made voluntarily; and when he records any

confession, he shall make a memorandum at the foot of such record to the following effect:--

1 Added by the Code of Criminal Procedure (Second Amdt.) Act, 1941 (15 of 1941), s.2. 2 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s. 35, for every Magistrate not being a

police-officer may”. 3 The word “any presidency Magistrate”, omitted by A. O. 1949, Sch. 4 Subs. By A.O 1937 for “L.G”. 5 Sub-Sections (1-A) added by the Law Reform Ordinance, 1972 (12 of 1972) s.2 and Sch.

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40 supra. 6 Subs. By Act 18 of 1923, s. 35 for “No Magistrate”.

70

1["I have explained to (name) that he is not bound to make a confession and that, if he does so,

any confession he may make may be used as evidence against him and I believe that this

confession was voluntarily made. It was taken in my presence and hearing, and was read over to

the person making it and admitted by him to be correct, and it contains a full and true account of

the statement made by him-

(Signed) A.B.

Magistrate.

Explanation: It is not necessary that the Magistrate receiving and recording a confession or

statement should be a Magistrate having Jurisdiction in the case.

165. Search by police-officer: 2[(1) whenever an officer incharge of a police-station or a police-

officer making an investigation has reasonable grounds for believing that anything necessary for

the purposes of an investigation into any offence which he is authorised to investigate may be

found in any place within the limits of the police-station of which he is incharge, or to which he is

attached, and that such thing cannot in his opinion be otherwise obtained without undue delay,

such officer may, after recording in writing the grounds of his belief and specifying in such writing,

so far as possible, the thing for which search is to be made, search, or cause search to be made, for

such thing in any place within the limits of such station[:]3

4[Provided that no such officer shall search, or cause search to be made, for anything which is in

the custody of a bank or banker as defined in the Bankers' Books Evidence Act, 1891 (XVIII of

1891), and relates, or might disclose any information which relates, to the bank account of any

person except, --

(a) for the purpose of investigating an offence under Sections 403. 406, 408 and 409 and

Sections 421 to 424 (both inclusive) and Sections 465 to 477-A (both inclusive) of the

Pakistan Penal Code with the prior permission in writing of a Sessions Judge: and

(b) in other cases, with the prior permission in writing of the High Court.]

(2) A police-officer proceeding under sub-section (1) shall, if practicable, conduct the search in

person.]

(3) If he is unable to conduct the search in person, and there is no other person competent to make

the search present at the time, he may, 5[after recording in writing his reasons for so doing] require

any officer subordinate to him to make the search, and he shall deliver to such subordinate officer

an order in writing 6[specifying the place to be searched and, so far as possible, the thing for which

search is to be made; and such subordinate officer may thereupon search for such thing in such

place.

1 Subs./ ibid., for “I believe”. 2 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 36 for the original sub-sections (1) and (2). 3 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1968 (3 of 1968), s. 3, for full-stop (w.e.f. 21.5.68). 4 Proviso added ibid. 5 Ins., by Act, 18 of 1923, s. 36, 6 Subs. Ibid., for “specifying the document or thing for which search is to be made and the place to be search”.

71

(4) The provisions of this Code as to search warrants and the general provisions as to searches

contained in Section 102, Section 103 shall, so far may be, apply to a search made under this

section.]

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to

the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier, of

the place searched shall on application be furnished with a copy of the same by the Magistrate:

Provided; that he shall pay for the same unless the Magistrate for Some special reason thinks fit to

furnish it free of cost.

166. When officer incharge of police station may require another to issue search warrant:

(1) An officer incharge of a police-station 1[or a police-officer not being below the rank of sub-

inspector making an investigation], may require an officer incharge of another police-station,

whether in the same or a different district, to cause a search to be made in any place, in any case

In which the former officer might cause such search to be made, within the limits of his own

station.

(2) Such officer, on being So required, shall proceed according to the provisions of Section 165,

and shall forward the thing found, if any. to the officer at whose request the search was made,

2[(3) Whenever there is reason to believe that the delay occasioned by requiring an officer incharge

of another police station to cause a search to be made under sub-section (1)might result in evidence

of the commission of an offence being concealed or destroyed, it shall be lawful for an officer

incharge of a police-station or a police-officer making an investigation under this chapter to search,

or cause to be searched, any place in the limits of another police station, in accordance with the

provisions of Section 165, as if such place were within the limits of his own station.

(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search

to the officer incharge of the police station within the limits of which such place is situate, and

shall also send with such notice a copy of the list (if any) prepared under Section 103, and shall

also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the

records referred to in Section 165, sub-sections (1) and (3).

(5) The owner or occupier of the place searcher shall, on application be furnished with a copy of

any record sent to the Magistrate under sub-section (4):

Provided that he shall pay for the, same unless the Magistrate for some special reasons thinks fit

to furnish it free of cost.]

1 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 37 2 Sub-Sections (3) to (5) were added ibid.

72

167. Procedure when investigation cannot be completed in twenty-four hours: (1) Whenever 1[any person is arrested and detained in custody, and it appears that the] investigation 2* * *

cannot be completed within the period of twenty four hours fixed by Section 61, and there are

grounds for believing that the accusation or information is well founded, the officer incharge of

the police-station [3or the police-officer making the investigation if he is not below the rank of the

sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary

hereinafter prescribed relating to the case, and shall at the game time forward the 4* * *accused

to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under, this section may, whether he

has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused

in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole.

If he has no jurisdiction to try the case or 5[send] it for trial, and considers further detention

unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction;

6[Provided that no Magistrate of the Third Class, and no Magistrate of the Second Class not

specially mpowered in this behalf by the 7[Provincial Government ]shall authorise detention in the

custody of the police.]

(3) A Magistrate authorizing under this section detention in the custody of the police shall record

his reasons for so doing.

8[(4) The Magistrate, giving such order shall forward copy of his order, with his reasons for

making it, to the Sessions Judge].

9[(5) Notwithstanding anything contained in Sections 60 and 61 or hereinbefore to the contrary,

where the accused forwarded under sub-section (2) is a female, the Magistrate shall not except—

in the cases involving QatI or dacoity supported by reasons to be recorded in writing, authorise-

the detention of the accused in police custody, and the police officer making an investigation shall

interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of

jail and a female police officer.(6) The officer incharge of the prison shall make appropriate

arrangements the admission of the investigating police officer into the prison for the purpose of

interrogating the accused].

(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1)

be taken out of the prison, the officer incharge of the police station or the police officer making

investigation, not below the rank of sub-inspector, shall apply to the Magistrate in that behalf and

1 Subs. Ibid, s. 38, for “it appears that any”. 2 The words “under this Chapter” rep., ibid. 3 Ins. Ibid. 4 The words and brackets “(if any)” rep., ibid. 5 Subs. By the Law reforms Ordinance, 1972 (12 of 1972) s.2 and Sch. For “commit”. For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 6 Provisio ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 38. 7 Subs. By A.O,, 1937, for “L.G”. 8 Subs. By Ordinance 12 of 1972, s. 2 and Sch., for sub-sections (4). 9Ins. by Act XX of 1994, S.2.

73

the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the

prison in the company of a female police officer appointed by the Magistrate :

Provided that the accused shall not be kept out of the prison while in the custody of the police

between sunset and sunrise].

168. Report of Investigation by subordinate police officer: When any subordinate police officer

has made any investigation under this Chapter, he shall report the result of such investigation to

the officer incharge of the police-station.

169. Release of accused when evidence deficient: If upon an investigation under this Chapter, it

appears to the officer incharge of the police station 1[or to the police officer making the

investigation] that there is no sufficient evidence or reasonable ground of suspicion to justify the

forwarding of the accused to a Magistrate, such officer shall if such person is in custody, release

him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and

when so required, before a Magistrate

empowered to take cognisance of the offence on a police-report and to try the accused or send him

for trial.

170. Case to be sent to Magistrate when evidence is sufficient: (1) If, upon an investigation

under this Chapter, it appears to the officer incharge of the police-station that there is sufficient

evidence or reasonable ground as aforesaid such officer shall forward the accused under custody

to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the

accused or send him for trial, or if the offence is bailable and the accused is able to give security,

shall take shall take security from him for his appearance before such Magistrate on a day fixed

and for his attendance from day-today before such Magistrate until otherwise directed.

(2) When the officer Incharge of a police station forwards an accused person to a Magistrate or

take security for his appearance before such Magistrate under this section, he shall send to such

Magistrate any weapon or other article which it may, be necessary, to produce before him and

shall require the complainant,(if any) and so-many of the persons who appear to such officer to

be acquainted with the circumstances of the case as he may think necessary, to execute a bond to

appear before, the Magistrate as thereby directed and prosecute or, give evidence (as the case

may be) in the matter of the charge against the accused. 2* * * * * * * * *

(5) The officer in whose presence the bond is executed shall deliver a-copy thereof to one of the

persons who executed it, and shall then send to the Magistrate the original with his report.

171. Complainants and witnesses not to be required to accompany police-officer: No

complainant or witness on his way to the Court of Magistrate shall be required to accompany a

police officer.

1 Ins. By Act, 18 of 1923, s. 39. 2 Sub-Section (4) rep. by the code of Criminal Procedure (Amdt.) Act 1926 (2 of 1926), s.2.

74

Complainants and witnesses not to be subjected to restraint: Or shall be subjected to

unnecessary restraint or inconvenience, or required to give any security for his appearance other

than his own bond.

Reseusant complainant witness may be forwarded in custody: .Provided that, if any

complainant or witness refuses to attend or to execute a bond as directed in Section 170, the officer

|incharge of the police-station may forward him in custody to the Magistrate who may detain him

in custody until he executes such bond, or until the hearing of the case is completed.

172. Diary of proceedings in investigation: (1) Every police-officer making an investigation

under this Chapter shall day by day enter his proceedings in the investigation in-a diary setting

forth the time at which the information reached him, the time at which he began and closed his

investigation, the place or places Visited by him, and a statement of the circumstances ascertained

through his investigation.

(2) Any Criminal Court may send for the police-diaries of a case under inquiry or trial in such

Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

Neither the accused nor his agents shall be entitled to call for such diaries nor shaft he or they be

entitled to see them merely because they are referred to by the Court; but, if they are used by the

police-officer who made them, to refresh his memory, or if the Court uses them for the purpose of

contradicting such police-officer, the provisions of the Evidence Act, 1872, Section 161 or Section

145, as the case may be, shall apply.

173. Report of police officer: [1(1) Every investigation under this Chapter shall be completed

without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station

shall 3[through the Public Prosecutor]--

(a) forward to a Magistrate empowered to take cognizance of the offence on a policereport, a report

in the form prescribed by the 2[Provincial Government], setting forth the names of the parties, the

nature of the information and the names of the persons who appear to be acquainted with the

circumstances of the case, and stating whether the accused (if arrested) has been forwarded in

custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government,

the action taken by him to the person, if any, by whom the information relating to the

commission of the offence was first given :

3[Provided that, where investigation is not completed within a period of fourteen days from the

date of recording of the first information report under Section 154, the officer incharge of the

police station shall, within three days of the expiration of such period, forward to the Magistrate

through the Public Prosecutor, an interim report in the form prescribed by the Provincial

Government stating therein the result of the investigation made until then and the Court shall

1 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 40, for the original sub-section (1). 2 Subs. By A.O, 1937, for “L.G.”. 3 Added subs.by Act XXV of 1992 vs. 2

75

commence the trial on the basis of such interim report, unless, for reasons to be recorded, the

Court decides that the trial should not so commence.]

(2) Where a superior officer of police has been appointed under Section 158, the report shall, in

any cases in which the Provincial Government by general or special order so directs, be submitted

through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge

of the police-station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been

released on his bond, the Magistrate shall make such order for the discharge of such bond or

otherwise as he thinks fit.

1[(4) A copy of any report forwarded under this section shall, on application, be furnished to the

accused before the commencement of the inquiry or trial:

Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to

furnish it free of cost.]

3[(5) Where the officer incharge of a police station forwards a report under sub-section (1), he shall

along with the report produce the witnesses in the case, except the public servants, and the

Magistrate shall bind such witnesses for appearance before him or some other Court on the date

fixed for trial.]

174. Police to inquire to report in suicide, etc.: (1) The officer incharge of a police station or

some other police officer specially empowered by the 2[Provincial Government] in that behalf,

on receiving information that a person-

(a) has committed suicide, or

(b) has been killed by another, or by an animal, or by machinery, or by an

accident, or

(c) has died under circumstances raising a reasonable suspicion that some

other person has committed an offence, . .

shall immediately give intimation thereof to the nearest Magistrate empowered to hold (inquests

and unless otherwise directed by any rule prescribed by the Provincial Government,4[***] shall

proceed to the place where the body, of such deceased person is, and there, in the presence of

two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw

up a report of the apparent cause of death, describing such wounds, fractures, bruises and other

marks of injury as may be found oil the body and stating in what manner, or by what weapons-

or instrument (if any), such marks appear to have been inflicted.

1 Sub-section (4) ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 40. 2 Subs. By A.O 1937 for “L.G”. 3Added by Act XXV of 1992, S.2. 4Subs. omitted by Ord. 37 of 2011, S. 51(w.e.f 14-08-2001).

76

(2) The report shall be signed by such police officer and other persons, or by so many of them as

concur therein, and shall be forthwith forwarded to the 4[concerned] Magistrate.

(3) When there is any doubt regarding the cause of death or when for any other reason the police-

officer considers it expedient so to do, the shall, subject to such rules as the Provincial Government

may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest

Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government], if the state of the weather and the distance admits of its being so forwarded without risk

of such putrefaction on the road as would render such examination useless. 1* * * * * 2[(5) [The Magistrates of the First Class are empowered to hold inquests.]

3[174A. Grievous injury to burns: (1) where a person grievously injured by burns through fire,

kerosene oil, acid, chemical or by any other way is brought to a Medical Officer on duty designated by

the Provincial Government for this purpose or such incident is reported to the officer in- Charge of a

Police Station, shall immediately give intimation therefore to the nearest Magistrate, simultaneously

the Medical Officer on duty shall record the statement of the injured person immediately on arrival so

as to ascertain the circumstances and cause of the burn injuries. The statement shall also be recorded

by the Magistrate in case the injured person is still in a position to make the statement.

(2) the Medical Officer on duty, or as the case may be, the Magistrate, before recording the statement

under sub-section(1) shall satisfy himself that the injured person is not under any threat or duress. The

Statement so recorded shall be forwarded to the Session Judge and also to the District Superintendent

of Police and Officer-in-Charge of the Police Station for such action as may be necessary under this

Code.

(3) If the injured person is unable for any reason to make the statement before the Magistrate, his

statement recorded by the Medical Officer on duty under sub-section(1) shall be sent in sealed cover

to the Magistrate or the trial court if it id other than the Magistrate and may be accepted in evidence as

a dying declaration if the injured person expires.

175. Power to summon persons: (1) A police-officer proceeding under Section 174 may, by order in

writing summon two or more persons a& aforesaid for the purpose of the said investigation and any

other person, who appears to be acquainted with the facts of the case. Every person so summoned shall

be abound to attend and to answer truly, all questions other than Questions the answers to which would

have a tendency to expose him to a criminal charge, or to a penalty or forfeiture.

(2) If the facts do not disclose a cognizable offence to which Section 170 applies, such

persons shall not be required by the police officer to attend a Magistrate's Court.

176. Inquiry by Magistrate into cause of death: (1) When any person dies while in the custody of

the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned

in Section 174, clauses (a), (b) and (c) of sub-section (1), any Magistrate so empowered may hold an

1 Sub-Section (4) omitted by A.O., 1949m syb 2Subs. by Ord. 37 of 2001, S.51 (w.e.f 14-08-2001). 3Ins. by Ord. 64 of 2001, S.2.

77

inquiry into the cause of death either .instead of, or in addition to, the investigation held by the police-

officer, and if he does so, he shall have all the powers in conducting it which he would have in holding:,

an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by

him in connection therewith in any of the manners hereinafter prescribed according to the

circumstances of the case.

(2) Power to disinter corpses: 'Whenever such Magistrate considers it expedient to make an

examination of the dead body of any person who has been already interred, in order to discover the

cause of his death, the Magistrate may cause the body to be

disinterred and examined.

PART VI

PROCEEDINGS IN PROSECUTIONS

CHAPTER XV

OF THE JURISDICTION OF THE CRIMINAL COURTS OF INQUIRIES AND TRIALS

A-Place of Inquiry or Trial

177. Ordinary place of inquiry and trial: Every offence shall ordinarily be inquired into

and tried by a Court within the local limits of whose jurisdiction it was committed.

178. Power to order cases to be tried in different sessions divisions :

Notwithstanding anything contained in Section 177, the 1[Provincial Government] may direct

that any cases or class of cases 2[in any district sent for trial to a Court of Session may be tried in

any sessions division]:

3[Provided that such direction is not repugnant to any direction previously issued by the

High Court under Section 526 of the Code or any other law for the time being in force.]

179. Accused triable in district where act is done or where consequence ensues:

When a person is accused of the commission of offence by reason of anything, which has been

done, and of any consequence which has ensued, such offence may be inquired into or tried by a

Court within the local limits of whose jurisdiction any such thing has been done, or any such

consequence has ensued.

Illustrations

(a) A is wounded within the local limits of the jurisdiction of Court X, and dies within the

local limits of the jurisdiction of Court Z. The offence of the culpable homicide of A may be

inquired into or tried by X or Z.

(b) A is wounded within the local limits of the jurisdiction of Court X, and is, during ten

days within the local limits of the jurisdiction of Court Y. and during ten days more within

the local limits of the jurisdiction of Court Z, unable in the local limits of the jurisdiction of

1 Subs. By A.O., 1937, for “L.G”. 2 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2. and Sch., for “committed for trial in any district may be tried in any sessions

division”.

For enforcement of this amendement in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 3 Subs. Ibid., for “Proviso” which had previously been amended by Act 13 of 1916, s.2 and Sch, A.O, 1937, A.O., 1961, Art 2 and sch. (w.e.f 23rd

March, 1956) and S.O., 1964, Arts. 2 and Sch.

78

either Court Y, or

79

Court Z. to follow his ordinary pursuits. The offence of causing grievous hurt to A may be inquired into or

tried by X, Y or Z.

(c) A is put in fear of injury within the local limits of the jurisdiction of Court X, and is

thereby induced, within the local limits of the jurisdiction Court, Y, to deliver property to the person who

put him in fear. The offence of extortion committed on A may be inquired into or tried either by X or Y.

(d) A is wounded in the 1[State of Junagadh] and dies of his wounds in 2[Karachi]. The offence of causing

A's death may be Inquired into and tried in Karachi.

.

180. Place of trial where act is offence by reason of relation to other offence: When an act is

an offence by reason of its relation to any other act, which is also an offence or which would be an

offence if the doer were capable of committing an offence, a charge of the first-mentioned offence

may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was

done.

Illustrations

(a) A charge of abetment may be inquired into or tried either by the Court within the local

limits of whose jurisdiction the abetment was committed, or by the Court within the local

limits of whose jurisdiction the offence abetted was committed.

(b) A charge of receiving or retaining stolen goods may be inquired into or tried either by

the Court within the local limits of whose jurisdiction the goods were stolen, or by any

Court within, the local limits of whose jurisdiction any of them were at any time

dishonestly received or retained.

(c) A charge of wrongfully concealing a person known to have been kidnapped, may be

inquired into or tried by the Court within the local limits of whose jurisdiction the wrongful

concealing, or by the Court within the local limits of whose Jurisdiction the kidnapping,

took place.

181. Being a thug or belonging to a gang of dacoits escape from custody, etc.: (1)

The offence of being a thug, of being a thug and committing murder, of dacoity, of dacoity with

murder, of having belonged to a gang of dacoits, or of having escaped from custody, may be

inquired into or tried by a Court within the local limits of whose jurisdiction the person charged

is.

(2) Criminal misappropriation and criminal breach of trust: The offence of criminal

misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the

local limits of whose jurisdiction any part of the property which is the subject of the offence was

received or retained by the accused person, or the offence was

committed.

1 Subs. By the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960). S.3 and 2nd Sch., for “Native State of

Baroda” (with effect from the 14th October, 1955). 2 Subs. Ibid for “Poona” (with effect formt he 14th October, 1955).

80

1[(3) Theft: The offence of theft, or any offence which includes theft or the possession of stolen

property, may be inquired into or tried by a Court within the local limits of whose jurisdiction

such offence was committed or the property stolen was possessed by the thief or by any person

who received or retained the same knowing or having reason to believe it to be stolen.

(4) Kidnapping and abduction: The offence of kidnapping or abduction may be inquired into or

tried by a Court within the local limits of whose jurisdiction the, person kidnapped or abducted

was kidnapped or abducted or was conveyed or concealed or detained.

182. Place of inquiry or trial where scene of offence is uncertain or not in one district only or

where offence is continuing or consists of several acts: When it is uncertain in which of several

local areas ah offence was committed, or where an offence is committed partly in one local area

and partly in another, or where an offence is a continuing one, and continues to be committed in

more local areas than one, or where it consists of several acts done in different local areas. it may

be inquired into or tried .by a Court having jurisdiction over any of such local areas.

183. Offence committed on a journey: An offence committed whilst the offender is in the course

of performing a journey or voyage may be inquired into or tried by a Court through or Into the

focal limits of whose Jurisdiction- the offender, or the person against whom, or the thing in respect

of which, the offence was committed, passed in the course of that journey or voyage.

184. Offence against Railway Telegraph, Post Office &. Arms Act: [Rep by the Federal Law

(Rrevision and Declaration) Act, XXVI of 1951, S. 3 and Second Sch.]

2[185. High Court to decide, in case of doubt, district where inquiry or trial shall take place:

(1) Whenever a question arisen as to which of two or more Courts subordinate to the Same High

Court ought to inquire into or try any offence, it shall be decided by that High Court.

(2) Where two or more Courts not subordinate to the same High Court have taken cognizance of

the same offence the High Court within the local limits of whose appellate criminal jurisdiction

the-proceedings were first commenced may direct the trial of such offender to be held in any Court

subordinate to it, and if so decides, all other proceedings; against such person in, respect of such

offence shall be discontinued. If Such High Court, upon the matter, having been brought to its

notice, does not so decide, any other High Court within the local limits of whose appellate criminal

jurisdiction such proceedings are pending may give a like direction, and upon its so doing all other

such proceedings shall be discontinued.

186. Power to issue summons or warrant for offence committed beyond local jurisdiction:

(1) When 3* * *a Magistrate of the First Class Sees reason to believe that any person within the

local limits of his jurisdiction has committed without such limits (whether, within or without

1 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 42 for the original sub-section (3). 2 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 43 for the original section 185. 3 The word “a presidency Magistrate” omitted by A.O., 1949, Sch.

81

1[Pakistan] an offence which cannot under the provisions of Sections 177 to 184 (both inclusive),

or any other law for the time being in force, be inquired into or tried within such local limits, but

is under some law for the time being in force triable in Pakistan, such Magistrate may inquire into

the offence as if it had been committed within such local limits and compel such person in manner

hereinbefore provided to appear before him, and send such person to the Magistrate having

jurisdiction to inquire into or try such offence, of, if such offence is bailable, take a bond with or

without sureties for his appearance before such Magistrate.

(2) Magistrate's procedure on arrest: When there are more Magistrate then one, having such

jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate

to or before whom such person should be sent or bound to appear, the case shall be reported for

the orders of the High Court.

187. Procedure where warrant issued by subordinate Magistrate: (1) If the person has been

arrested under a warrant issued under Section 186 2[the Magistrate issuing warrant shall send the

arrested person to the Sessions Judge] to whom he is subordinate, unless the Magistrate having

jurisdiction to inquire into or try such offence issues his warrant for the arrest of such person, in

which case the person arrested shall be delivered to the police officer executing such warrant or

shall be sent to the Magistrate by whom such warrant was issued.

(2) If the offence, for which the person arrested is alleged or suspected have committed, is one,

which may be inquired into or tried by any Criminal-Court in the same district other than that of

the Magistrate acting under Section 186, such Magistrate shall send person to such Court.

188. 3[Liability for offences committed outside Pakistan]: When a 4[citizen of Pakistan]

commits an offence at any place without and beyond the limits of 5[Pakistan], or

6* * * * * *

1 Subs. By the Central Laws (Statute reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the

14th October, 1955) for “ the Provnces and the Capital of the Federation”, which had been subs by A.O 1949 Arts.

3(2) and 4, for “British India”. 2 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For “by a Magistrate other than a District

Magistrate, such Magistrate shall send the person arrested to the District or sub-divisional Magistrate which was

amended by A.O. 1949, Sch.

For enformcement of this amndendment in the Provinces, see, apra 2 of foot-note 2 on p. 40, supra. 3 Subs. By A.O., 1961, Art. 2 and Sch., for the marginal heading (with effect from the 23rd March, 1956). 4 Subs. Ibid (with effect from the 23rd March, 1956) for “British subject domiciled in Pakistan” which had been subs.

By A.O., 1949 Sch., for “Native Indian subject of “Her Majesty”. 5 Subs. By the Central Laws (Statute Reform) Ordinance, 1960, (21 of 1960), s.2 and2nd Sch. (with effect from the

14thOctober, 1955), for the Provinces and the Capital of the Federation”, wihc had been subs. By A.O 1949, Arts

3(2) and 4 for “British India”. 6 The words “when any British subject commitsand offect in [an acceding State or tribal area], or” omitted by A.O,

1961, Art 2 and Sch. (with effect from the 23rd March, 1956), the words in crotchets where subs by A.O., 1949, Sch.

For “the territories of any native Prince or Chief in India”

82

When a servant of the 1[State (whether a citizen of Pakistan or not) commits an offence in 2[a

tribal area],3[ or

when any person commits an offence on any ship or aircraft registered in Pakistan where it may

be,

he may be dealt with in respect of such offence as if it had been committed at any place

within Pakistan at which he may be found:]

Political Agents to certify fitness of inquiry into charge: Provided that 4[notwithstanding

anything in any of the preceding sections of this Chapter no charge as to any such offence shall

be inquired into in Pakistan unless the Political Agent, if there is one, for the territory in which

the offence is alleged to have been committed, certifies that in his opinion, the charge ought to-

be inquired into in Pakistan; and, where there is no Political Agent, the sanction of the 5[Federal

Government] shall be required :

Provided, also, that any proceedings taken against any person under this section which

would be a bar to subsequent proceedings against such person for the same offence if

such offence had been committed in Pakistan shall be a bar to further proceedings against

him[under 6[the 7[Extradition Act, 1972 (XXI of 1972) in respect of the same offence in any

territory beyond the limits of Pakistan.

189. Power to direct copies of depositions and exhibits to be received in evidence: Whenever

any such offence as is referred to in Section 188 is being inquired into or tried, the 8[Provincial

Government] may, if it thinks fit, direct that copies of depositions made or exhibits produced

before the Political Agent or a Judicial Officer in or for the territory in which such offence is

alleged to have been committed shall be received as evidence by the Court holding such inquiry

or trial in any case in which such Court might issue a commission for taking evidence as to the

matters to which such depositions or exhibits relate.

B-Conditions requisite for initiation of proceedings

1 Subs. By A.O., 1961 Art. 2 and Sch, for “Queen (whethera British subject or not)”(witheffect from the 23 rd March,

1956). 2 Subs. By the Federal Laws (Revision and Declaration Ordinance, 1981(27 of 1981), s.2 and Second Sch. For “an

Acceding State or tribal area” whicfh had been subs. By A.O, 1949, Sch. For “the territories of any Native Prince

Chief in India.” 3 Ins. By the offecnces on ships and Aircraft Act, 1940 (4 of 1940), s. 2 4 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 44. 5 Subs. By F.A.O, 1975, Art. 2 and Sch., for “Provincial Government”, which was previously amended by A.O,

1937, for “L.G”. 6 Subs. By the Repealing and Amednign act, 1927 (10 of 1927), s.2 and Sch. 1 for “The foreign jurisdictiona

ndExtradition Act, 1879”. 7 Subs. By Ord. 27 of 181, s.2 and 2nd Sch., for “Extradition Act, 1903”. 8 Subs. By A.O., 1937, for “L.G”. 3Subs. by Ord. 12 of 1972, S.2+ Sch, as amended by Act 23 of 1997. 4Subs. By Ordinance 12 of 1972, s.2 and Sch., for “unless the accused has been committed to it by Magistrate duly empowerd in that behalf. 5 As to procedure of Coruts of Session in Balochistan, see British Balochistan Criminal Justice Regulation, 1896 (8 of 1896). This procedure,

however see the Regulation referred

83

2[190. Cognizance of offences by Magistrates: [(1) All Magistrates of the First Class, or any

other Magistrate specially empowered by the Provincial Government on the recommendation of

the High Court, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his

own knowledge or suspicion,

that such offence has been committed which he may try or send to the Court of Session for trial

and]

[191. Transfer on application of accused: When a Magistrate takes cognizance of an offence

under sub-section (1), clause (c) of the preceding section, the accused shall, before any evidence

is taken be informed that he is entitled to have the case tried by another Court, and, if the accused,

or any of the accused if there be more than one, objects to being tried by such Magistrate, the case

shall instead of being tried by such Magistrate, be sent to the Sessions Judge for transfer to another

Magistrate.

3[192. Transfer of cases: A Session Judge may empower any Judicial Magistrate, who has taken

cognizance of any case, to transfer such case for trial to any other Judicial Magistrate in his district,

and such Magistrate may dispose of the case accordingly.]

193. Cognizance of offences by Courts of Session: (1) Except as otherwise expressly provided

by this Code or by any other law for the time being in force no Court of Session 4shall take

cognizance of any offence as a Court of original jurisdiction 4unless the case has been sent to it

under Section 190, sub-section (2).

(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the 1[Provincial Government] by general or special order may direct them to try or 5* * * as the

Sessions Judge of the division by general or special order may make over-to them for trial.

194. Cognizance of offences by High Court : (1) The High Court may take cognizance of any

offence 5 * * * is in manner hereinafter provided.

6[Nothing herein contained shaft be deemed to affect the provisions of any Letters Patent or Order

by which a High Court is constituted or continued, or any other provision of this

Code.]

7 * * * * * *

195. 1[(1) No Court shall take cognizance: --

1 Subs, by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 47, for the original sub-section (1).

84

(a) Prosecution for contempt of lawful authority of public servants: Of any offence punishable

under Sections 172 to 188'ofthe Pakistan Penal Code, except on the complaint in writing of the

public servant concerned, or of some other public servant to whom he is subordinate;

(b) Prosecution for certain offences against public justice: Of any offence punishable under

arty of the following sections of the same Code, namely Sections 193, 194, 195, 196. 199. 200,

205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed

in, or in relation to, any proceeding in any Court, except, on the complaint in writing of such Court

or of some other Court to which such Court is subordinate; or

(c) Prosecution for certain offences relating to documents given in evidence : Of any offence

described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same

Code, when such offence is alleged to have been committed by a party to any proceeding in any

Court in respect of a document produced or given in evidence in such proceeding, except on the

complaint in writing of such Court, or of some other Court to which such Court is subordinate.

(2) In Clauses (b) and (c) of sub-section (1), the term "Court" 1[includes] a Civil, Revenue or

Criminal Court, but does not include a Registrar or sub-Registrar under the 2[Registration Act,

1908.]

3[(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to

which appeals ordinarily lie from the appeal able decrees or sentences of such former Court, or in

the case of a Civil Court from whose decrees no appeal, ordinarily lies, to the principal Court

having ordinary, original civil jurisdiction within the local limits of whose jurisdiction such Civil

Court, is situate:

Provided that--

(a) where appeals lie to more than one Court, the Appellate Court of inferior

jurisdiction shall be the Court to which such Court shall be deemed to be

subordinate; and

(b) where appeals tie to a Civil and also to a Revenue Court, such Court shall be

deemed to be subordinate to the Civil or Revenue Court according to the nature of

the case or proceeding in connection with which the offence is alleged to have been

committed.

1 Subs. Ibid. for “means”. 2 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch for “Indianc Registration Act, 1877.

For enforcement of this amendement in the Provinces, see, para 2 of foot-note 2 on p. 40, supra. 3 Subs. By Act., 18 of 1923, s. 47 for the original sub-section (7) renumbered as sub-section 5. The words “upon a commitment made to it” omitted by Ordinance 12 of 1972, s.2 and Sch.

6. Subs by the Central Laws (Statute Reform ( Ordinance, 1960 (21 of 1960), s.2 and 2nd Sch (with effect from the 14th October, 1955), for the

original second paragraph, as amended by the Amending Act, 1918 (13 of 1916), s.2 and Sch., and A.O. 1937, to read as above. 7. Sub-section (2) as amended by A.O., 1937, has been omitted by the FederalLaws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s;3

and Second Sch.

85

1[(4) The provisions of sub-section (1), with reference to the offences named therein, apply also to 2[criminal conspiracies to commit such offences and to the abetment of such offences, and attempts

to commit them.

3[(5) Where a complaint has been made under sub-section (1) clause (a), by a public servant, any

authority to which such public servant is subordinate may order the withdrawal of the complaint

and, if it does so, it shall forward a copy of such order to the Court, and upon receipt thereof by

the Court, no further proceedings shall be taken on the complaint]

4[196. Prosecution for offences against the State: No Court shall take cognisance of any offence

punishable under Chapter VI 5[or IX-A] of the Pakistan Penal Code (except Section 127), or

punishable under Section 108-A, or Section 153-A or Section 294-A, 6[or Section 295-A] or

Section 505 of the same Code, unless upon complaint made by order of or under authority from, 7[the 8[Federal Government or the Provincial Government concerned, or some officer empowered

in this behalf by either of the two Governments.]

9[196-A. Prosecution for certain classes of criminal conspiracy: No Court shall take cognizance

of the offence of criminal conspiracy punishable under Section 120-B of the Pakistan Penal Code,

(1) in a case where the object of the conspiracy is to commit either an illegal act other than an

offence, or a legal act by illegal means, or an offence to which the provisions of Section 196 apply,

unless upon complaint made by order or under authority from the Federal Government or the

Provincial Government concerned or some officer empowered in this behalf by either of the two

Governments, or

(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a

cognizable offence not punishable with death, 10[imprisonment for life] or rigorous imprisonment

for a term of two years or upwards, unless the 11[Provincial Government] or 12[Officer in-charge

of the prosecution in the district] empowered in this behalf by the Provincial Government, has, by

order in writing, consented to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to which the provisions of sub-section 13[(4)]

of Section 195 apply no such consent shall be necessary.

14[196-B. Preliminary inquiry in certain cases: In the case of any offence in respect of which

the provisions of Section 196 or Section 196-A apply, [officer in-charge of the investigation in the

1 The original sub-section (3) was re-numbered as sub-section (4) by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s. 47. 2 Ins. By the Criminal Law Amendement Act, 1913 (8 of 1913), S.4 3 The original sub-sections (4), (5) and (6) were rep. and the new sub-section (5) was ins. By Act, 18 of 1923, s. 47. 4 This section has been amended in Sind by the Code of Criminal Procedure (Sin Amdt.) Act, 1947 (Sind Act 43 of 1947), and in the N.W.F.P by

the Criminal Procedure (Election Officens) (NWFP Amdt.) Act, 1938 (NWFP Act 8 of 1938).

In the Punjab this section has been amnended by the Punjab Criminal Procedure (Election Offences Amdt.) Act, 1936 (Punjab 2 of 1936). 5 Ins. By the Indian Elections Officens and Inquires Act, 1920 (39 of 1926), s.3. 6 Ins. By the Criminal Law Amendment Act, 1927 (25 of 1927), s. 2 7 The original words “the G.G in C, the L.G., or some officer empowered by the G.G in C. in this behalf have successively been amended by A.O. 1937 and the Code of Oriminal Procedure (Amdt.) Ordinance, 1960 (48 of 1960), ss. 2 and 3 respectively to read as above. 8 Subs. By F.A.O., 1975, Art. 2 and Table, for “Central Government”. 9 S. 196A was ins. By the Criminal Law Amendment Act, 1913 (8 of 1913) s. 4. 10 Sbus by the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch, for “transportation” (w.e.f 13-4-72). 11 Subs. By A.O., 0937, for “L.G”. 12 The words “Chief Presidency Magistrate or” omitted by A.O. 1949, Sch. 13 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), 2. 48, for “(3)” 14 S. 196B was ins. Ibid, s.49.

86

district]1* * * may, notwithstanding anything contained in those sections or in any other part of

this Code, order a preliminary investigation by a police-officer not being below the rank of

inspector, in which case such police-officer shall have the powers referred to in Section 155, sub-

section (3).

197. Prosecution of Judges and public servants: 2[(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 3 [the 4 [Federal

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 5[previous sanction-- .

(a) in the case of a person employed in connection with the affairs of the 6[Federation] of the 7[President]; and

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

Governor of that Province 8* * *]].

(2) Power of President or Governor as to prosecution: 9[The President or Governor, as the case

may be, may determine the person by whom, the manner in which, the offence or offences for

which, the prosecution of such Judge, 10[Magistrate ]or public servant is to be conducted, and may

specify the Court before which the trial is to be held.

11* * * * * 12[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:

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

mariners of the country, ought not to be compelled to appear in public, or were 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:]

1 The words “or chief Presidency Magistrate” omitted by A.O., 1949, Sch. 2 Subs by the code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.50 for the original sub-section (1). 3 Subs. By A.O., 1949, Sch., for “a [Provincial Governmetn] or some higher authority”. The words in brackets had been subs. For “Local Government” by A.O., 1937. 4 Subs. By F.A.O., 1975, Art. 2 and Table for “Centre” which had been subs. By A.O., 1964, Art. 2 and Sch, for “Federaltion.”. 5 Subs. By A.O, 1937 for “previous sanction of the L.G.”. 6 Subs. By F.A.O. 1975, Art.2 and Table for “center” which had beensubs. By A.O., 1964, Art. 2 and Sch,, for “Federation”. 7 Subs. By A.O., 1961, Art.2 for “Governor General” (with effect from the 23rd March, 1956). 8 The words “exercising his individual judgment” omitted by G.G.O. 20 of 1947, Art. 6. 9 Subs. By A.O., 1937, for “Such Govt.”. 10 Ins. By Act 18 of 1923, s. 50. 11 Sub-Section (3) which had been Ins. By A.O., 1937, omitted by A.O, 1948, Dvh. 12 This section has been amended in the NWFP by the NWFP Act 26 of 1950, s. 11. 13 Prviso ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 51.

87

1[Provided further that where the husband aggrieved by an offence under Section 494 of the said

Code is serving in any of 2[the armed forces of Pakistan under conditions, which are certified by 3[the commanding Officer] as precluding him from obtaining leave of absence to enable him to

make a complaint in person, some other person authorised by the husband in accordance with the

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

on his behalf.

4[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 beam 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 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 authorised by him in this behalf;

(b) n the case of a Federal Minister or Minister of State, Chief Minister, or

Provincial Minister, of any secretary to the Government authorised 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 Session 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 this Code, the Court of Session shall try the case without

the aid of jury or assessors and in trying the case shall follow the procedure prescribed for the trial

by Magistrates 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

1 Prviso added by the Code of Criminal Procedure (Second Amdt.) Act, 1943 (28 of 1943), s.2. 2 Subs. By A.O., 1961, Art. 2 and Sch., for “His Masjesty’s armed forces” (With effect from the 23rd March, 1956). 3 Subs. Ibid, for “His Commanding Office4r” (with effect from the 23rd March, 1956). 4 New Section 198A ins. By the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch (w.e.f 24-4-74).

88

Section 198.]

1199. Prosecution for adultery or enticing a married woman ; 2[No Court shall take cognizance

of an offence under Section 497 or Section 498 of the Pakistan Penal Code,

except--

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

or in his absence, by some person who had care of such woman on his behalf at that 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:

3 [Provided that, where such husband 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 behalf:

4[Provided further that where such husband is serving in any of 5[ 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

authorised by the husband in accordance with the provisions of sub-section (1) of Section 199-B

may, with the leave of the Court, make a complaint on his behalf.]

6[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 ought 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.]

7[199-B. Form of authorisation under second proviso to Section 198 or 199: (1) The

authorisation 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

1 S. 199 has been omitted in the NWFP by the NWFP act 26 of 1950, s.12. 2 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for certain words.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p.40, supra. 3 Ins. By Act 18 of 1923, s. 52. 4 Proviso added by Act 28 of 1943, s.3 5 Subs. By A.O 1961, Art. 2 and Sch. For “His Majesty’s armed forces” (with effect from 23rd March, 1956). 6 Section 199A ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 53. this Section has been

amended in the NWFP by the NWFP Act, 26 of 1950, s. 13. 7 S,199B ins. By the Code of Criminal Procedure (Second Amdt.) Act, 1943 (28 of 1943), s. 4. this section has been omitted in the NWFP by the

NWFP Act 26 of 1950 s. 13.

89

signed or, otherwise attested by the husband, shall contain a statement to the effect that he has been

informed of the allegations 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

that 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 authorisation 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.

CHAPTERXVI

OF COMPLAINTS TO MAGISTRATES 200. Examination of complainant: 1* * *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 complainant before transferring the case

under Section 192 2[or sending it to the Court of Session];

3[ (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

complaint has been made by a Court or by a public servant acting or -purporting

to act in the discharge of his official duties;

4* * * * *

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

has already examined the complainant, the Magistrate to whom it is so transferred shall not be

bound to re-examine the complainant.

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 been made in writing, such Magistrate shall direct the complainant to

the proper Court.

1 The words and figures “ subject to the provsions of section 476” rep. by Act 18 of 1923, s. 54. 2 Added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p.40, supra. 3 Clause (as) ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 54. 4 Clause (b) omitted by A.O. 1949, Sch.

90

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

of which it is authorised to take cognizance; or which has been sent to it under Section 190, sub-

section (3), or referred to it under Section 191 or-Section 192, may, if it thinks fit, for reasons to

be recorded, postpone tbe4ssueor process for compelling the attendance of the person complained

against, and either inquire into the case itself or direct any inquiry or investigation to be made by 2[any Justice of the Peace or by] a police officer or by such other person as it thinks fit, for the

purpose of ascertaining the truth or falsehood of file 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 complaints: 3[The Court], before whom a complaint is made or to whom it has

been transferred, 4[or sent] may dismiss the complaint, if, 5[after considering the Statement on oath

(if any) of the complainant and the result of 6[the investigation] or inquiry 7[(if any)] under Section

202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly

record his reasons for so doing.

_______________________

CHAPTER XVII

OF THE COMMENCEMENT OF PROCEEDINGS BEFORE 8[COURT]

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

sufficient ground of 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, 9[it] shall issue his

1 Section 202 which was amended by Act 18 of 1923, s. 55, the Code of Criminal Procedure (Amdt.) Act, 1926 (2 of 1926) s.4, has been subs. By

Ord. 12 of 1972 s.2 and Sch. 2 Ins. By Ord 12 of 1972, s.2 of Sch. 3 Subs. By the Law Reform Ordinance, 1972 (12 of 1972), s.2 and Sch. For “Magistrate”.

For enforcement of this amendment in the Provinces, see para 2 of footnote 2 on p. 40, supra. 4 Ins. Ibid. 5 Subs. By Act 18 of 1923, s.55 “after examining the complainant and considering the result of the investigation (if any) made under section 200”. 6 Subs. By the Code Criminal Procedure (Amdt.) Act, 1926 (2 of 1926), s. 5 for “any investigation”. 7 Ins. Ibid. 8 Subs. By Ordinance 12 of 1972, s.2 and Sch. For “Magistrate”. 9 Subs. Ibid, for “he”

91

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 [Court] or

if [it] thinks fit, a summons, for causing the accused to be brought or to appear at a certain time

before such [Court] if as if it has no jurisdiction 1[itself] some other Court having jurisdiction.

(2) Nothing in this section shall be deemed to affect the provisions 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 2[Court] may dismiss the complaint.

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

magistrate issues a summons, he may, if he sees reasons so to do, dispense with the personal

attendance of the accused, and permit him to appear by his pleader.

(2) But the Magistrate inquiring into 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 to 220. Omitted by Law Reforms Ordinance, (XII of 1972), s.2 and Sch.

_______________

3[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

particular case.

1 Subs. Ibid, for “himself”. 2 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and sch. For “Magistrate”.

For enforcemtn of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra. 3 Chapter XVIII was previously amended by the Criminal Law Amendment Act, 1923 (12 of 1923), s.9.A.O, 1949, Sch. Code of Criminal

Precedure (Amdt.) Act, 1923 (18 of 1923), s. 57 and A.O, 1937.

92

1[(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 put: If the accused 2[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 3[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 As act fell

within the definition of murder given in Sections 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 Section 300; or that if it did fall within Exception

1, one or other of the three provisos to that exception apply to it.

(b) A is charged, under Section 3?-6 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 or cheating or

theft or extortion, or adultery, or criminal; intimidation or that he use a false property-mark,

without referenced the definitions to 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

1 Subs. By A.O, 1949, Sch., for the Original sub0section (6). 2 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s. 61 for has been previously convicted of any offece, and it is intended to prove such previous conviction for the purpose of affection the punishment which the court is competent to award. 3 Subs. Ibid for “is omitted”

93

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 Sections 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 the theft was affected. (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 from

punishment.

The charge must set out the disobedience charged and the law infringed.

224. Words in charge taken in sense of taw 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, calls 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.

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(c) A is charged with cheating B, and the manner in which he cheated S 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 Khuda 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 1[trial] before the Magistrate, 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 20th January, 1882, and

Khuda Bakhsh (who tried to arrest him for that murder) on the 21st January, 1882.

When charged for the murder of Haider Bakhsh. he was tried for the murder of

Khuda Baksh- 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.

2226. Procedure on commitment without charge or with imperfect or erroneous charge: [Omitted

by Law Reforms Ordinance, XIl of 1972].

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

judgment is pronounced. 3* * * (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 4* * * 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 prosecution

in the conduct of the case, the Court may, in its discretion, after such charge or alteration or

addition has been framed or made, proceed with the trial as if the new or altered charge had been

the original charge.

1 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and SCh., for “Inquiry before the Magistrate”. For enforcement of this amendement in the Provinces, see, para 2 of footnote 2 on p.40, supra. 2 Section 226 was omitted by A.O., 1961, Art 2 and Sch. 3 The commas and words “, or in the case of trails before the court of Session or High Court, before the verdict of the jurty is returned or the opinions of the assessors are expressed” omitted by Ord. 12 of 1972, s.2 and Sch has baseless _____________________ 4 The words section 226 are omitted ibid.

95

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 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 require 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,

unless sanction has been already obtained for aprosecution on the same facts as those on which the

new or altered charge is founded.

231. Recall of witnesses which 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 High Court 1[or the Court of

Session] in the exercise of its powers of revision or of its powers under Chapter XXVII is of

opinion that any person convicted of an offence was misled in his defence by the absence of a

charge or by an error in the charge, it shall direct a new trial to be had 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 of the statement that he had it,

it shall direct a new trial upon an amended charge but if it appears probable from the proceedings

that A had no such knowledge, it shall quash the conviction. Word inserted by Law Reforms

Ordinance, XII of 1972.

Joinder of charges

233. Separate charged 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.

Illustrations

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

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

1 Ins. By the Law Reforms Ordinance, 1972 (12 of 1972) s. 2 and Sch.

For enforcement of this amendement in the Provinces, see, para 2 of footnote 3 on p.40, supra.

96

234. Three offences of same kind within 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, 1[whether in respect of the same person or not, he may

be charged with, and tried at one trial for, any 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 law:

2[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.]

235. Trial for more than one offence: (1) If, in one series of acts 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 any one, 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 Sections 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 Sections 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.

1 Ins. B the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 62 2 Proviso ins, ibid.

97

(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 Section 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 Sections

147, 325 and 152 of the Pakistan Pena! Code.

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

cause harm to them. A may be separately charged with and convicted of, each of

the 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 Sections 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 Section 317 and 304 of the Pakistan Penal Code,

(l) 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)-

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(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 or 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 when 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.

1* * * * * *

Illustration

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, that 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.

1 Subs section (2) (2) Rep. by the Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923), Section 63.

99

1[(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 authorize a 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.

2[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 course 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

(d) 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 XIl of the Pakistan Penal Code

relating to counterfeit coin, and persons accused of any other offence under the said

1 Sub-section (2A) ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 64. 2 Subs. Ibid, s. 65 for original s.239.

100

Chapter relating to the same coin, or of 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 withdrawal shall

have 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 of setting aside the conviction) may proceed

with the inquiry into or trial of the charge or charge so withdrawn.

CHAPTER XX

OF THE TRIAL OF 1[CASES] BY MAGISTRATES

241. 2[Procedure in trial of cases]: The following procedure shall be observed by Magistrates in

the trial of cases.

3[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 all witnesses recorded under Sections 161 and 164 and of the

inspection-note- recorded by an investigating 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 the 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 the copy of the statement furnished to the accused.

(2) In all cases instituted upon a complaint in writing, the complainant shal!--

(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

complaint and any other document which he has filed with his complaint as the

number of the accused:

1 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For “summon cases”.

For enforcement of this amendment in the Provinces see, para 2 of foot ntoe 2 on p. 40, supra. 2 Subs. Ibid, for “Procedure in summons case”. 3 Ins. Ibid.

101

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 to act in discharge of his

official duties.

1[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 2[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 3[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 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:

4[Provided that the Magistrate shall not be bound to hear any person as complainant tn 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 5[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[:]6

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

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

8[244-A. Statement made under Section 164: The statement of a witness duty 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 case for all purposes subject to the provisions

of the Qanun-e-Shahadat, 1984.]

1 Sibs/ bu the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “section 242”.

For enforcement of this amendement in the Provinces see, para 2 of foot note 2 on p. 40, surpa. 2 Subs. Ibid, for “of such he is accused”. 3 Subs. By the Code of Criminal Procdure (Amdt.) Act, 1923 (18 pf 1923), s. 66, for “shall convict”. 4 Ins. Ibid, s. 67. 5 Subs. Ibid, “for process to compel the attendance of any witness or the production of”. 6 Subs. By Ordinance 12 of 1972 s. 2 and Sch. 7 Proviso added by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch. For enforcement of this amendement, in the Provinces, see para. 2 of footnote 3 on page 40, supra. 8 Ins. Ibid.

102

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 fit)

examining the accused, finds the accused not guilty, he shall record an order of acquittal. 1(2) Sentence: Where the Magistrate does not proceed in accordance with the provisions of Section

349 2* * * he shall if he finds the accused guilty, pass sentence upon him according to taw.

2[245-A. Procedure in cases of previous convictions: In a case where a previous conviction is

charged under the provisions of Section 221, sub-section (7), and the accused does not admit that

he had been previously convicted as alleged in the charges the Magistrate may, after he has

convicted the accused under Section 243, or under Section 245, sub-section (2), take evidence in

respect of the alleged previous conviction, and if he does so, shall record a finding thereon.]

246.Finding not limited by compliants and summons. [Omitted by Law Reforms Ordinance, XII

of 1972].

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 reasons 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[:]3

4[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 proceeding when no complaint: In any case instituted otherwise than upon

complaint, 5* * *a Magistrate of the First Class, or with the previous-sanction of the Sessions

Judge, any other 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.

1 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s. 68 for the original sub-section (2). 2 The words “or section 562” omitted by Ordinance 12 of 1972, s.2 and Sch. 3 Subs. Ibid. for full-stop. 4 Proviso added ibid. 5 The words “a Presidency Magistrate” omitted by A.O. 1949, Sch.

103

1[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 2[cases tried by Magistrate]

250. False, frivolous or vexatious accusations: 3[(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 Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is

heard 4* * *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 4* * * acquittal, if the person upon whose complaint or in 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 him 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 5[twenty-five

thousand rupees] or, if the Magistrate is a Magistrate of the Third Class not exceeding 6[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.

7[(2-A) The compensation payable under sub-section (2) shall be recoverable as an arrear of land-

revenue.]

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

69 the Pakistan Penal Code(XI-V of 1860) shall, so far as may be, apply.

(2-C) 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.

1 Ins. By the Code of Criminal Procedure (Amdt.) Ord. 1977 (36 of 1977) s.2, (w.e.f 30.10.77). 2 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch, for “summons and Warrant Cases”. For enforcement of this amendement in the Provinces see, para 2 of footnote 2 on p. 40, supra. 3 Sub-section (1) to (2C) were subs. For the original sub-section (2) and (2) by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923),

s.69 4 Omitted by Ordinance 12 of 1972, s.2 and Sch. 5 Subs. By the Code of Criminal Procedure (Amdt.) Ordinance, 1980 (6 of 1980), s.2 for “five hundred rupees” which was subs. By Ord. 12 if

1972, s.2 and Sch for “one hundred rupees.” 6 Subs by Ord. 6 of 1980, s.2 for “fifty rupees”. 7 Sub-section (2A) which was amended by Ordinance 12 of 1972, has been subs. Ibid.

104

(3) A complainant or informant who has been ordered under 1[sub-section (2)] by a Magistrate of

the Second or Third Class to pay compensation 2[or has been so ordered by any other Magistrate

to pay compensation exceeding fifty rupees] may appeal from 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 a 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 3[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.] 4 * * * * *

250-A. Special summons in case of petty offences: (1) Any Magistrate of the fif9t 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 Magistrate 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 authorise, in writing such advocate t6 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 (Ordinance XIX of 1965), or under any other law, which provides for the accused person

being convicted in his absence on a plea of guilty.

5CHAPTER XXI OF THE TRIAL QF WARRANT CASES BY MAGISTRATES 251 & 259. [Omitted

by Law Reforms Ordinance, XII of 1972], s.2 and Sch.

CHAPTER XXII

OF SUMMARY TRIALS 6260. Power to try summarily: (1) Notwithstanding anything contained in this Code--

7* * * * *

1 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.69, for “sub-section (1)”. 2 Subs. Ibid for “to an accused person”. 3 Ins. ibid 4 Sub-section (5) rep., ibid. 5 This chapter was amended by Act 18 of 1923, s.70. For enforcement of this amendement in the Provinces,see para 2 of footnote 2 on p. 40, supra. 6 For notifn. Conferring powers on the Additional City Magistrate Karachi, to try cases summarily under this section, see Gaz. Of P.1957, Pt. VI,

p.6 7 Clasue (a) Omitted by Law Reforms Ordinance, 1972, (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see, para 2 of foot-note 2 on p.40, supra.

105

(b) any Magistrate of the First Class specially empowered in this behalf by the 1[Provincial

Government], and

(c) any Bench of Magistrates invested with the powers of a Magistrate of the First Class and

especially empowered in this behalf by the 3[Provincial Government],

may, if he or they think fit, try in a summary way alt or any of the following offences:

(a) offences not punishable with death, transportation or imprisonment for a term

exceeding six months;

(b) offences relating to weights and measures under Sections 264, 265 and 266 of the

Pakistan Penal Code;

(c) hurt, under clause (i) of section 337-A of the same Code;

(d) theft under Sections 379, 380 or 381 of the same Code, where the value of the

property stolen does not exceed ten thousand rupees;

(e) dishonest misappropriation of property under Section 403 of the same Code,

where the value of the property misappropriated does not exceed so ten thousand

rupees ;

(f) receiving or retaining stolen property under Section 411 of the same Code, where

the value of such property does not exceed ten thousand rupees;

(g) assisting in the concealment or disposal of stolen property, under Section 414 of

the same Code, where the value of such property does not exceed 2[thousand

rupees;

(h) mischief, under Section 247 of the same Code;

(i) house-trespass, under Section 448, and offences under Sections 451, 3[453, 454],

456 and 457 of the same Code-

(j) insult with intent to provoke a breach of the peace, under Section 504. and

criminal intimidation, under Section 506 of the same Code;

4[(jj) offence of personation at an election under Section 171-F of the same Code;

(k) abetment of any of the foregoing offences;

1 Subs. By A.O., 1937, for ‘’L.G.”, 2 Subs. By Ordinance, 12 of 1972, s.2 and Sch., for “fifty rupees”. 3 Ins. By the Amending Act, 1903 (1 of 1903), s.2 and Sch., II Pt. II. 4 Clause (jj) ins. By the Code of Criminal Procedure (Amdt.) Act, 1957 (43 of 1957), s.2.

106

(l) an attempt to commit any of the foregoing offences, when such attempt is an

offence;

(m) offences under Section 20 of the Cattle-Trespass Act, 1871.

1* * * * *

(2) When in the course of a summary trial it appears to the Magistrate or Bench that the case is

one which is of a character which renders it undesirable that it should be tried summarily, the

Magistrate or Bench shall recall any witnesses who may have been examined and proceed to rehear

the case in manner provided by this Code.

261. Power to invest Bench of Magistrates invested with less powers: The 2[Provincial

Government] may on the recommendation of: High Court may confer on any Bench of Magistrates

invested with the powers of a Magistrate of the Second or Third Class power to try summarily all

or any of the following offences:-

(a) offences against the Pakistan Penal Code, Sections 277. 278, 279, 285, 286, 289.290, 292, 293,

294, 337-A (i), 337-L (2), 337-H (2), 341, 352, 426, 3[447 and 504];

(b) offences against Municipal Acts, and the conservancy clauses of Police Acts which are

punishable only with fine or with imprisonment for a term not exceeding one month 4[with or

without fine] ;

(c) abetment of any of the foregoing offences ;

(d) an attempt to commit any of the foregoing offences when such attempt is an offence. .

262. 5[Procedure prescribed in Chapter XX applicable] : 6[(1) In trials under this Chapter, the

procedure prescribed in Chapter XX shall be followed except as hereinafter

mentioned.

(2) Limit of imprisonment : No sentence of imprisonment for a term exceeding three months

shall be passed in the case of any conviction under this Chapter.

263. Record in cases where there is no appeal: In cases where no appeal ties, the Magistrate or

Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge; but

he or they shall enter in such form as the 7[Provincial Government] may direct the, following

particulars :--

1 Provisio omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enformcement of this amendment in the Provnices, see, para 2 of footnote 2 on p. 40, supra. 2 Subs. By A.O., 1937, for “L.G”. 3 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 75, for “and 447”. 4 Ins. Ibid, s. 75. 5 Subs. By Ordinance 12 of 1972, s.2 and Sch., for “for summons and warrant-cases”. 6 Subs, ibid, for sub-section (1) . 7 Subs. By A.O, 1937, for “L.G”.

107

(a) the serial number;

(b) the date of the commission of the offence;

(c) the date of the report or complaint;

(d) the name of the complainant (if any);

(e) the name, parentage and residence of the accused ;

(f) the offence complained of and the offence (if any), proved, and in cases coming

under clause (d), clause (e), clause (f) or clause (g) of sub-section (1) of Section 260,

the value of the property in respect of which the offence has been committed ;

(g) the plea of the accused and his examination (if any);

(h) the finding, and, in the case of a conviction, a brief statement of the reasons

therefore;

(i) the sentence or other final order; and

(j) the date on which the proceedings terminated.

1[264. Record in appealable cases: (1) In every case tried summarily by a Magistrate or Bench

in which an appeal ties such Magistrate or Bench shall record the substance of the evidence and

also the particulars mentioned in sub-section 263. 54[and shall, before passing any sentence, record

a judgment in the case.

265. Language of record and Judgment: (1) Records made under Section 263 and judgments

recorded under Section 264 shall be written by the Presiding Officer, either in English or in the

language of the Court, or if the Court to Which such Presiding Officer is immediately subordinate

so directs, in such officer's mother tongue.

(2) Bench may be authorized to employ clerk: The Provincial Government may authorize any

Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record or

judgment by means of an officer appointed in this behalf by the Court to which such Bench is

immediately subordinate, and the record. or judgment so prepared shall be signed by each member

of such Bench present taking part in the

proceedings.

(3) if no such authorization, be given, the record prepared by a member of the Bench and signed

as aforesaid shall be the proper record.

(4) If the Bench differ In opinion, any dissentient member may write a separate judgment.

1 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For “original section 264”.

For enformcement of this amendemetn in the Provinces, see para 2 of footnote 2 on p. 40, supra.

108

1[CHAPTER XXII-A

TRIALS BEFORE HGHH COURTS AND COURTS OF SESSION

265-A. Trials before Court of Session to he conducted by Public Prosecutors: In every trial

before a Court of Session, initiated upon a police report, the prosecution shaft

be conducted by the Public Prosecutor.

265-B. Procedure in cases triable by High Courts and Courts of Session: The following

procedure shall be observed by the High Courts and the Courts of Session in the trial of cases

triable by the said Courts.

265-C. Supply of statements and documents to the accused:(1) In all cases instituted upon

police report, copies of the following documents shall be supplied free of cost to the accused not

later than seven days before the commencement of the trial, namely--

(a) the first information reports

(b) the police report;

(c) the statements of all witnesses recorded under Sections 161 and 164; and

(d) the inspection note recorded by an investigation officer on his first visit, to the

place of occurrence and the note recorded by him on recoveries made, if any:

Provided that, If arty part of a statement recorded under Section 161 or Section 464 is such that its

disclosure to the accused would be inexpedient in the public interest, such part of the statement

shall be excluded from the copy of the statement furnished to the accused.

(2) in all cases instituted upon a complaint in writing-

(a) the complainant shall-

(i) 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

(ii) 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 complaint and any other document -which he has filed with

his complaint as the number of the accused and

(b) copies of the complaint, and any other documents which the complainant has filed

therewith and the statement under Section'200 or Section 202 shall be supplied free of cost

to the accused not later than seven days before the commencement of the trial.

265-D When charge to be framed: If, after perusing the police report or, as the case may be, the

complaint, and all other documents and statements filed by the prosecution, the Court is of opinion

1 Chapter XXII-A which was inserted by the Law Reforms Ordinance, 1972) has been subs. By the Code of Criminal Procedure (Amdt.) Act,

1976 (44 of 1976), s.2.

For enformcement of this amendment in the Provinces see, para 2 of footnote 2 on p. 40, supra. The Code of Crimnal Procedure (Amdt.) Act, 1976 (44 of 1976), i.e Chapter XXII-A only shall apply to the Provincially Administerd Tribal Area

of NWFP by NWFP notfn NO. 13/27-HD (TA-I)77, dated 22-6-78 asee NWFP, Gazette, Extraordinary, page 11.

109

that there is ground for proceeding with the trial of the accused it shall frame in writing a charge

against the accused.

265-E. Plea: (1) The charge shall be read and explained to the accused, and he shall be asked

whether he is guilty or has any defence to make.

(2)- If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict

him thereon.

265-F. Evidence for prosecution: (1) if the accused does not plead guilty or the Court in its

discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if

any) and take all such evidence as may be produced in support of the

prosecution:

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

the complaint has been made by a Court.

(2) The Court shall ascertain from the Public Prosecutor or, as the case may be from the

complainant, the names of any persons likely to be acquainted with the facts of the case and to be

able to give evidence for the prosecution, and shall summon such persons to give evidence before

it.

(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being

called for the purpose of vexation or delay or defeating "the ends of justice. Such ground shall be

recorded by the Court in-writing.

(4) When the examination of the witnesses for the prosecution and the examination pf any of the

accused are concluded, the accused shall be asked whether he means to adduce evidence.

(5) If the accused puts in any written statement, the Court shall file it with the record.

(6) If the accused, or any one of several accused, says that ha means to adduce evidence, the Court

shall call on the accused to/enter on his defence and produce his evidence.

(7) If the accused, or any one of several accused, after entering on his defence, applies to the Court

to issue any process for compelling the attendance of any witness for examination or the production

of any document or other thing, the Court shall issue such process unless it considers that the

application is made for the purpose of vexation or delay or defeating the ends of justice. 3uch

'ground shall be recorded by the Court in writing.

265-G. Summoning up by prosecutor and defence: (1) in cases Where the accused, or any one

of several accused, does hot adduce evidence in his defence, the Court shall, on the close of the

prosecution case and examination (if any) of the accused, call upon the prosecutor to sum up his

case where after the accused shall make a reply -

110

(2) In cases where the accused, or any of the several accused, examines evidence, in his defence,

the Court shall, on the close of the defence case, call upon the accused to sum up the case

whereafter the prosecutor shall make a reply.

265-H. Acquittal or conviction: (1) if in any case under this Chapter in which a charge has been

framed the Court finds the accused not guilty, it shall record an order of acquittal.

(2) If in any case under this Chapter the Court finds the accused guilty the Court shall/subject to

the provisions of Section 265-1, pass a sentence upon him according to

law.

265-I. Procedure in case of previous conviction: (1) In a case where, by reason of a previous

conviction the accused has been charged under Section 221, sub-section (7), the Court, after

finding the-accused guilty of the offence charged and recording a conviction, shall record the plea

of the accused in relation to such part of the charge.

(2) If the accused admits that he has been previously convicted as alleged in the charge, the Court

may pass a sentence upon him according to law, and if the accused does not admit that he has been

previously convicted as alleged in the charge, the Court may take evidence m respect of the alleged

previous conviction, and shall record a finding thereon, and then pass sentence upon him according

to law,

265-J. Statement under Section 164 admissible: 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 the Evidence Act, 1872 (II of 1872).

265-K. Power of Court to acquit accused at any stage: Nothing in this Chapter shall be deemed

to prevent a Court from acquitting an accused at any stage of the case, if, after nearing the

prosecutor and the accused and for reasons to be recorded, it considers that there is not probability

of the accused being convicted of any offence.

265-L. Power of Advocate-General to stay prosecution: At any stage of any trial before a High

Court under this Code, before the sentence is passed, the Advocate- General may, if he thinks fit

inform the Court on behalf of Government that he will not prosecute the accused upon the charge;

and thereupon alt proceedings against the accused shall be stayed, and he shall be discharged of

and from the same. But such discharge shall not amount to an acquittal unless the presiding Judge

otherwise directs.

265-M. Time of holding sittings: For the exercise of its original criminal jurisdiction, every

High Court shall hold sittings on such days and at such convenient intervals as the Chief Justice

of such Court from time to time appoints.

111

265-N, Place of holding sittings: (1) The High Court shall hold its sittings at the place at which

it held them immediately before the commencement of the Law Reforms Ordinance. 1972, or at

such other place (if any) as the Provincial Government may direct.

(2) But the High Court, may, from time to time with the consent of the Provincial Government,

hold sittings at such other places within the local limits of its appellate

jurisdiction as the High Court appoints.

(3) Such officer as the Chief Justice directs shall give prior notice in the official Gazette of all

sittings intended to be held for the exercise of the criminal jurisdiction of the High Court.

1CHAPTER XXIII: of the Trials Before High Court and Courts of Session--- 266 to 336. Omitted

by Law Reforms Ordinance (XIl of 1972) s,. 2 and Sch

CHAPTER XXIV

GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS

337. Tender of pander to accomplice: 2[(1) In the case of any offence triable exclusively by the

High Court or Court of Session, or any offence punishable with imprisonment which may extend

to ten years, or any offence punishable under Section 211 of the Pakistan Penal Code with

imprisonment which may extend to seven years, or any offence underany of the following sections

of the Pakistan Penal Code, namely, Sections 216-A. 369. 401, 435 and 477-A, 3[the officer

incharge of the prosecution in the district] may, at any stage of investigation or inquiry into or the

trial of the offence, with a view to obtaining the evidence of any person supposed to have been

directly or indirectly concerned in or privy to the offence, tender a pardon to such person on

condition of his making a full and true disclosure of the whole of the circumstances within his

knowledge relative to the offence and to every other person concerned, whether as principal or

abettor, in the commission thereof:

4[Provided that no person shall be tendered pardon who is involved in an offence relating to hurt

or qatl without permission of the victim or as the case may be of the heirs of the

victim.[

(1-A) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons, for so

doing and shall on application made by the accused, furnish him. with a copy of such record :

Provided that the accused all pay for the same unless the Magistrate for some special reason thinks

fit to furnish it free of cost.

5[(2) Every person accepting a tender under this section shall be examined as a witness in nthe

subsequent trial, if any.]

1 For enforcement of this amendment in the Provinces, see, apra 2 of footnote 3 on p. 40, supra. 2 Sub-sections (1)and (1A) subs, for the Original sub-section (1) by the Code of Criminal Procedure (Amdt.) 3subs. by Ord. 37 of 2001, s.60(w.e.f 14-08-20010). 4Subs. + added by Act-II of 1997, S.12. 5subs. omitted by the Federal Laws (revision and declaration) Ord., 1981(27 of 1981, S.3 and 2nd Sch. For sub-section (2) which was amended by

Act, 18 of 1923, S.86, to read as above.

112

(2-A) In every case where a person has accepted a tender of pardon and has been examined under

sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied

that there are reasonable grounds for believing that the accused is guilty of an offence, commit him

for trial to the Court of Session or High Court, as the case may be-

(3) Such person,1[ unless he is already on bail, shall be detained in custody until the termination

of the trial. 2* * * 3* * * * * * 4[338. Power to grant tender of pardon: At any time before the judgment is passed the High

Court or the Court of Session trying the case may, with the view of obtaining on the trial the

evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any

such offence, tender, or order the [officer-in-charge of the prosecution in the district] to tender a

pardon on the same condition to such person:

Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or

qatl; without permission of the victim or. as the base may be, of the heirs of the victim.

339. Commitment of person to whom pardon has been tendered: (l) Where a pardon has-been

tendered under Section 337 or Section 388, and the 5 [Public Prosecutor certifies that in his

opinion] any person who has accepted such tender has, either by wilfully concealing anything

essential or by giving false evidence, not complied with the condition on which the tender was

made 6[such person may be] tried for the offence in respect of which the pardon was so tendered

or for any other offence of which he appears to have been guilty in connection with the same

matter:

[Provided that such person shall not be tried jointly with any of the other accused, and that he

shall be-entitled to plead at such trial that he has complied with the conditions upon which such

tender was made, in which case it shall be for the prosecution to prove that such conditions have

not been complied with.]

(2) The statement made by a person who has accepted a tender of pardon may be-given in evidence

against him 7[at such trial.]

(3) No prosecution for the offence of giving false evidence in respect of such statement shall be

entertained without the sanction of the High Court.

8[339-A. Procedure in trial of person under Section 339: The Court trying under Section 339 a

person who has accepted a tender of pardon-shall, before the evidence of the witnesses for the

1 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.86, for “if not on bail”. 2 The words “by the Court of Session or High Court, as the case may be rep. ibid. 3 Sub-section (4) rep., ibid. 4 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For “original section 338”.

For enforcmement of this amendment in the Proncies, see para 2 of footnote 2 on p. 40, supra. 5 Ins. By Act 18 of 1923, s.87. 6 Subs. Ibid, for “he may be”. 7 Subs. Ibid., for “when the pardon has been forfeited under this section”. 8 Section 339A subs, by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch, for section 339A, which was amended by the Code of Crimnal Procedure (Amdt.) Act, 1923 (18 of 1923), s.88, for the original section 339A.

For enforcement of this amendment in the Provinces, see para 2 of footnote 2 on p. 40, supra.

113

prosecution is taken, ask the accused, whether he pleads that he has complied with the conditions

on which the tender of the pardon was made.

(2) If the accused does so plead, the Court shall record the plea and proceed with the trial, and,

shall, before judgment is passed in the case find whether or not the accused as complied with the

conditions of the pardon, and if it is found that he has so complied, the Court shall, notwithstanding

anything contained in this Code, pass judgment of acquittal.

1[340. Right of person against whom proceedings are instituted to be defended and his

competency to be a witness: (1) Any person accused of an offence before a Criminal Court, or

against, whom proceedings are instituted under this Code in any such

Court, may of right be defended by a pleader. .

2[(2) Any person accused of an offence before a Criminal Court or against whom proceedings are

instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on

oath in disproof of the charges or allegations made against him or any person charged or tried

together with him at the same trial -

Provided that he shall not be asked, and, if asked, shall not be required to answer, any question

tending to show that he has committed or been convicted of any offence other than the offence

with which he is charged or for which he is being tried, or is of bad

character, unless.

(i) the proof that he has committed or been convicted of such offence is admissible in evidence to

show that he is guilty of the offence with which he is charged or for which he is being tried; or

(ii) He has personally or by his pleader asked questions of any witness for the prosecution with a

view to establishing his own good character, or has given evidence of his good character; or

(iii) he has given evidence against any other person charged wither tried for the same offence.

341. Procedure where accused does not understand proceedings : If the accused though not

insane, cannot be made to understand the proceedings, the Court may proceed with the 3* * *trial;

and-in the case of a Court other than a High Court or if such trial results in a conviction, the

proceedings shell be forwarded to the High Court with a report of the circumstances of the case,

and the High Court shall pass thereon such order as it thinks fit.

342. Power to examine the accused: (1) For the purpose of enabling the accused to explain any

.circumstances appearing in the evidence against him, the Court-may, at any stage of any inquiry

or trial without previously warning the accused, put such questions tohim as the Court considers

necessary, and shall, for the purpose aforesaid, question him generally on the case after the

witnesses for the prosecution have been examined and before he is called on for his defence;

1 Subs. By Act 18 of 1923, s.89, for the original section 340 2 Subs. By the Code of Criminal Procedure(Amdt.) Ordinance, 1985 (12 of 1985), s.2 for sub-section (2) which was previously amended by act 18 of 1923, s.89. 3 The words “inquiry or” and the words and comma” if such inquiry results ina commitment, “ omitted b Ord., 12 of 1972, s.2 and Sch.

114

(2) The accused shall not render himself liable to punishment by refusing to answer such questions,

or by giving false answers to them; but the Court 1* * *may draw such inference from such refusal

or answers as it thinks just.

(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and

put in evidence for or against him in any other inquiry into or trial for, any other offence which

such answers may tend to show he has committed. :

2[(4) Except as provided by sub-section (2) of Section 340, no oath shall be administered to the

accused.

343. No influence to be used to induce disclosures: Except as provided m Section

3377 and 338 no influence, by means of any promise or threat or otherwise; shall be used to an

accused person to induce him to disclose or withhold any matter within his

knowledge.

344. Power to postpone or adjourn proceedings: If, from the absence of a witness, or any other

reasonable cause, it becomes necessary-or advisable to postpone the

commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing,

stating the reasons therefore, from time to time, postpone or adjourn the same on such terms as it

thinks-fit, for such time as it considers reasonable and may by a warrant remand the accused if in

custody :

Remand: Provided no Magistrate shall remand an accused person to custody under this section

for a term exceeding fifteen days at a time.

(2) Every order made under this section by a Court other than a High Court shall be in writing

signed by the presiding Judge or Magistrate.

Explanation Reasonable cause for remand: If sufficient evidence has been obtained to raise a

suspicion that the accused may have committed an offence, and it appears likely that further

evidence may be obtained by a remand, this is a reasonable cause for a remand.

345. Compounding offence: (1) The offences punishable under the sections of the Pakistan Penal

Code 3[specified] in the first two columns of the table next following may be compounded by the

persons mentioned in the third column of that table:-

1 The words “and the jury (if any)” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. 2 Subs. By the Federal Laws (Revision and Declration) Ordinance, 1981 (27 of 1981), s.3 and Second Scheduled. 3 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.90, for “described”.

115

Offence Sections of the

Pakistan Penal

Code applicable

Persons by whom offence may

be compounded.

Uttering words, etc., with

deliberate intent to wound the

religious feelings of any

person.

298 The person whose religious feelings

are intended to be wounded.

Wrongfully restraining or

confining any person.

Assault or use Of criminal

force.

Unlawful compulsory labour

Mischief when the only loss

or damage caused is loss or

damage to a private person

Criminal trespass

House-trespass

Dishonestly issuing a cheque

for repayment of loan or

fulfilment of an obligation.

Criminal breach of contract

of service.

Adultery

Enticing or taking away or

detaining with criminal intent

a married woman

Defamation

Printing or engraving matter

knowing it to be defamatory

Sale of printed or engraved

substance containing

defamatory matter, knowing

it to contain such matter.

Insult intended to provoke a

breach of the peace.

Criminal intimidation except

when the offence is

341, 342

352, 355, 358

374

426, 427

447

448

489-F

490, 491, 492

497

498

500

501

502

504

506

The person restrained or

confined.

The person assaulted or to whom

criminal force is used.

The person compelled to labour

The person to whom the loss or

damage is caused.

The person in possession of

the property trespassed upon.

The person in whose favour

cheque issued.

The person with whom the

offender has contracted.

The husband of the woman

The person defamed.

The person insulted.

The person intimidated.

The person against whom the

116

punishable with

Imprisonment

for seven years.

1[Act caused by making a

person believe that he wilt be

an object of divine

displeasure.]

508

offence was committed.

2[(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first

two columns of the table next following may, with the permission of the Court before which any

prosecution for such offence is pending, be compounded by the persons mentioned in the third

column of that table:

Offence Sections of the Pakistan

Penal Code applicable

Persons by whom offence

may be compounded Rioting 147 The person against whom the

offence was committed or the

hiers of such persons, as the case

may be, if the offence was

committed alongwith another

compoundable offence

Roiting armed with deadly

weapon

148 Ditto

Qatl-i-amd 302 By the heirs of the victim..other

than the accused has been

committed by him in the name

or on the pretext of kaor kari,

siyah kari or similar other

customs or practices. Qatt under ikram-i-tam

Qatl-i-amd not liable to qisas

Qatt-i-Shibh-i-amd

Qatt-i-khata

Qatl-i-khata by rash or negligent

driving.

Qatl-bis-sabab

Attempt to commit Qati-i-amd

Itlaf-i-udw

303

308

316

319

320

322

324

334

Ditto

Ditto

By the heirs of the victim… other

than the accused has been

committed by him in the name or

on the pretext of kaor kari, siyah

kari or similar other customs or

practices

Ditto

Ditto

Ditto

The person against whom the

offence was committed,

The person to whom is caused

1 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.90. 2 Subs. Ibid, for the original sub-section (2).

117

Itlaf-i-Satahiyyat-i-udw

Shajjah of any kinds

Jaifah

Ghayr-jaifah of any kind

Hurt by rash or negligent driving

Hurt by rash or negligent act

Hurt by mistake

Hurt by means of a poison

Hurt to extort confession or to

compel restoration of property

Other hurts

Hurt not liable to qisas

Cases in which qisas for hurt

cannot be enforced

Isqat-i-haml

Isqat-janin

336

337-A

337-D

337-F

337-G

337-H

337-I

337-J

337-k

337-L

337-M

337-N

338-A

338-C

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

The Victim or the heirs of the

victim, as the case may be.

The Victim or the heirs of the

victim, as the case may be.

Wrongfully confining a person

for three days or more

Wrongfully confining a person in

secret-

Assault or criminal force in

attempting wrongfully to confine

a person.

Dishonest misappropriation

of property

Cheating

Cheating a person whose

interest the offender was bound, by

law or by legal contract, to protect

Cheating by personation

Cheating and dishonestly

inducing delivery of property or the

making, alteration or

destruction of a valuable

security.

Mischief by injury to work of

irrigation by wrongfully

diverting water when the only

loss or damage caused is loss

or damage to a private person

House-trespass to commit an

offence (other than theft)

punishable with imprisonment.

Using a false trade or

property mark.

Counterfeiting a trade or

property mark used by

343

346

357

403

417

418

419

420

430

451

482

The person confined

Ditto

The person assaulted or to whom

the force was used.

The owner of the property

Misappropriated.

The person cheated.

Ditto

Ditto

Ditto

The person to whom the loss or

damage is caused.

The person in possession of

the house trespassed upon.

The person to whom loss or injury

is caused by such use.

The person whose trade or

118

another. 483 property mark is counterfeited.

Knowingly selling or exposing or

possessing for sale or for trade or

manufacturing purpose, goods

marked with counterfeit trade or

property mark.

Marrying again during the

lifetime of a husband or wife.

Uttering words or sounds or

making gestures or exhibiting

any object intending to insult the

modesty of a woman or intruding

upon the privacy of a woman.

486

494

509

Ditto

The husband or wife of the person

so marrying.

The woman whom it is, intended to

insult or whose, privacy is intruded

upon.

5[(2A) Where an offence under Chapter XVI of the Pakistan Penal code, 1860 (Act XLV of 1860),

has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs

of practices, such offence may be waived or compounded subject to such conditions as the Court

may deem fit to impose with the consent of the parties having regard to the facts and circumstan

ces of the case].

(3) When, any offence is compoundable under this section, the abetment of such offence or an

attempt to commit such offence (when such attempt is itself an offence) may be compounded in,

like manner.

(4) When the person who would otherwise be competent to compound an offence under this section

is 1[under the age of eighteen years or is] an idiot or a lunatic, any person competent to contract on

his behalf may 2[with the permission of the Court] compound such offence.

3[(5) when the accused has been convicted and an appeal is pending, no composition for the offence

shall be allowed without the leave,-of the Court before which the appeal is to be heard.

2[(5-A) A High Court acting in the exercise of its powers of revision under Section 439 4[and a

Court of Session so acting under Section 439-A], may allow any person to compound any offence

which he is competent to compound under this section.

(6) The composition of an offence under this section shall have the effect of an acquittal of the

accused 1[with whom the offence has been compounded].

1 Subs. For “a minor” by the Code of Criminal Procedure (Amdt.) Act, 1923, (18 of 1923), s. 90. 2 Ins. ibid 3 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For the original sub-section (5).

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 4 Ins. Ibid. 5ins. by Act I of 2005, S.14.

119

(7) No offence shall be compounded, except as provided by this section.

120

1[346. Procedure of Magistrate In cases which he cannot dispose of : (1) If, in the course of an

inquiry or trial before a Magistrate in any district, the evidence appears to him to warrant a

presumption that the ease is one which should be tried or sent for trial to the Court of Session or

the High Court, by some other Magistrate in such district, he shall stay proceedings and submit the

case, with a brief report explaining its nature, to the Sessions Judge or to such other Magistrate,

having jurisdiction, as the Sessions Judge, directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself,

or send the case for trial to the Court of Session or the High Court.

2[347. Procedure when after commencement of trial, Magistrate finds case should be tried

by Court of Session or High Court : (1) If, in any trial before a Magistrate before, signing

judgment, it appears to him at any stage of the proceedings that the case is one which ought to be

tried by the Court of Session or High Court, he shall send the case to the Court of Session or High

Court, for trial.

3[348. Trial of persons previously convicted of offences against coinage, stamp-law or

property: (1) Whoever, having been convicted of an offence punishable under ChapterXII or

Chapter XVII of the Pakistan Penal Code with imprisonment for a term of three years or upwards

is again accused of any offence punishable under either of those Chapters with imprisonment for

a term of three years or upwards, shall 4[if the Magistrate before whom the case is pending is

satisfied that there are sufficient grounds 5[for the trial of the accused by the Court of Session or

High Court, as the case may be, send the accused for trial to such Court unless the Magistrate 6[is

competent to try the case and is of opinion that he can himself pass an adequate sentence if the

accused is convicted:

7* * * * * *

8[(2) When any person is sent for trial to the Court of Session or High Court, under subsection

(1), any other person accused jointly with him in the trial shall be similarly sent for trial.

1 Subs. By the Law Reforms Ordinance, 1973 (12 of 1972), s.2 and Sch. For original section 346. this ection was previously amended by the Federal Law Reform and Declaration act, 1951 (26 of 1951), s.3 and Second Schedule

For enformcement of this amendment in the Provinces see, apra 2 of footnote 3, on p.40, supra. 2 Subs. By Ord. 12 of 1972, s.2 and Sch. For the original Section 347, this section was previously amended by the code of Criminal Procedure (Amdt. ) Act, 1923 (18 of 1923) s.9] 3 S. 348 was renumberd as sub section (1) of that section by Act 18 of 1923, s.92. 4 Ins. Ibid. 5 Subs. By Ordinance 12 of 1972, s.2 and Sch., for “for committing the acused by committed to the Court of Session or High Court, as the case

may be”. 6 Subs. By Act 18 of 1923, s. 92, for “before whom the proceedings are pending.” 7 Proviso: Omitted by Law Reforms Ordinance, XII of 1972, s.2, and Sch. The proviso was previously amended by Act 18 of 1923, s.92..

8 Subs. By the Law Reforms Ordinance 1972 (12 of 1972), s.2 and Sch., for the original sub-section (2). For enforcmement of this amendment in the Provinces, see, para 2 of footnote 3 on p.40, supra.

This sub-section was previously amended by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.92.

121

349. Procedure when Magistrate cannot pass sentence sufficiently severe : (1) Whenever a

Magistrate of the Second or Third Class, having jurisdiction, is of opinion, after hearing the

evidence for the prosecution and the accused, that the-accused is guilty, and that, he ought to

receive a punishment/different In kind from, or more, severe than, that which such Magistrate is

empowered to inflict, or that he ought to be required to execute a bond under Section 106, he may

record the opinion and submit his proceedings, and forward the accused to a Magistrate of the First

Class specially empowered, in this behalf by ,,the Provincial Government.

1[(1-A) When more accused than one are being tried together and the Magistrate considers it

necessary to proceed under sub-section (1) in regard to any of such accused, he shall forward all

the accused who are in his opinion guilty to the Magistrate empowered under sub-section (1).

(2) The Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties

and recall and examine any witness who has already given evidence in the case and may call for

and take any further evidence, and shall pass such judgment, sentence or order in the case as he

thinks fit, and as Is according to law: Provided that he shall not inflict a. punishment more severe

than he is empowered to inflict under Sections 32 and 33.

2[350. Conviction or evidence partly recorded by one Presiding Officer and partly by

another: (1) Whenever any Sessions Judge or Magistrate, after having heard and recorded the

whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein,

and is succeeded by another Sessions Judge or Magistrate who has and who exercises such

jurisdiction, the Sessions Judge or Magistrate so succeeding may act on the evidence so recorded

by his predecessor, or partly recorded by his predecessor and partly, recorded by himself; or he

may resummon the witnesses and recommence the inquiry or trial;

Provided that—

(a) where the conviction was held before a Sessions Judge, the High Court; and

(b) where the conviction was held before a Magistrate, the High Court or the Court of

Session may whether there be an appeal or not, set aside any conviction passed on

evidence not-wholly recorded by the Sessions Judge or Magistrate before whom the

conviction was held, if such Court is of opinion that the accused has been materially

prejudiced thereby, and may order as a new inquiry or trial.

(2) Nothing in this section applies to cases in which proceedings have been stayed under Section

346 3[or in which proceedings have been submitted to a 4[Magistrate Specially empowered] under

Section 349.

3[(3) When a case is transferred under the provisions of this Code from one Magistrate to another,

the former shall be deemed to cease to exercise-jurisdiction therein, and to be succeeded by the

latter within the meaning of sub-section (1).

1 Sub-section (1A) ins. By act 18 of 1923, s.93. 2 Section 350 (1) which was previously amended by Ordinance 12 of 1972 s.2 and Sch. Have been subs by th Code of Criminal Procedure

(second Amendment Ordinance, 1980 (8 of 1980), s.2 to read as above. 3 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.94. 4Subs. by Ord. 12 of 1972, S.2+sch.

122

1[350-A. Changes in constitution of Benches: No order or judgment of a Bench of Magistrates

shall be invalid by reason only of a change having occurred in the constitution of the Bench in any

case in which the Bench by which such order or judgment is passed, is duly constituted under

Sections 15 and 16, and the Magistrates constituting ;the same have been present on the Bench

throughout the proceedings.

351. Detention of offenders attending Court: (1) Any person attending a Criminal Court,

although not under arrest or upon a summons, may be detained by such Court for the purpose of

inquiry into or trial of any offence of which such Court can take cognizance and which, form the

evidence, may appear to have been committed, and may be proceeded against as though he had

been arrested or summoned.

(2) When the detention, takes place 2***after a trial has been begun the proceedings in respect of

such person shall be commenced afresh, and the witnesses reheard-

352. Courts to be open: The place in which any Criminal Court is held for the purpose of inquiring

into or trying any offence shall be deemed an open Court, to which the public generally may have

access, so far as the same can conveniently contain them:

Provided that the Presiding Judge or Magistrate may, if he thinks tit, order at any stage of any

inquiry into or trial of, any particular case, that the public generally, or any particular person, shall

not have access to, or be or remain in, the room or building used by the Court.

CHAPTER XXV

OF THE MODE OF TAKING AWRECORDING EVIDENCE IN INQUIRIES

AND TRIALS

353. Evidence to be taken in presence of accused: Except as otherwise expressly provided, all

evidence taken under 3[Chapters XX, XXI, XXII and XXIl-A] shall be taken in the presence of the

accused, or, when his personal attendance is dispensed with, in presence of his pleader.

354. Manner of recording evidence: In inquiries and trials (other than summary trials) under the

Code by or before a Magistrate 4* * *or Sessions Judge, the evidence of the witnesses shall be

recorded in the following, manner.

1 S. 235A ins. Ibid, s.95. 2 The words “in the course of an inquiry under Chapter XVIII or” omitted by the Law Reforms Ordinance, 1972, (12 of 1972), s.2 and Sch.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 2 on p.40, supra. 3 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “Chapters XVIII, XX, XXI, XXII, and XXIII”. For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra. 4 The parenthesis and words “(other than a Presidency Magistrate)” omitted by A.O., 1949, Sch.

123

355. 1[Record in trials of certain cases by First and Second Class Magistrates]: (1) [2In cases

tried under Chapter XX or XXII by a Magistrate of the First or Second Class and in all proceedings

under Section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the

substance of the evidence of each witness as the examination of the witness proceeds.

(2) Such memorandum shall be written and signed by the Magistrate with his Own hand, and shall

form part of the record.

(3) If the Magistrate is prevented from making a memorandum as above required, he shall record

the reason of his inability to do so, and shall cause such memorandum to be made in writing from

his dictation in open Court, and shall sign the same and such memorandum shall form part of the

record.

356. Record in other cases: (1) 3[|n the trials before Courts of Session and in inquiries under

Chapter XII the evidence of each witness shall be taken down in writing in the language of the

Court by the Magistrate or Sessions Judge, or in his presence and nearing and under his personal

direction and superintendence and shall be signed by the Magistrate or Sessions Judge.

(2) Evidence given in English: When the evidence of such witness is given in English the

Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the

accused is familiar with English, or the language of the Court is English, an authenticated

translation of such evidence in the language of the Court shall form part of the record.

4[(2-A) When the evidence of such witness is given in any other language, not being English, than

the language of the Court, the Magistrate or Sessions Judge may take it down in that language with

his own hand, or cause it to be taken down in that language in his presence and hearing and under

his persona! direction and superintendence, and an authenticated translation of such evidence in

the language of the Court or in English shall form part of the record.

(3) Memorandum when evidence not taken down by the Magistrate or Judge himself : In cases in

which the evidence is not taken down in writing by the Magistrate or Sessions Judge, he shall, as

the examination of each witness proceeds, make a memorandum of the substance of what such

witness deposes;, and such, memorandum shall be written and signed by the Magistrate or Sessions

Judge with his own hand, and shall, form part of the record.

(4) If the Magistrate or Sessions Judge is prevented from making a memorandum as above

required, he shall record the reason of his inability to make it.

1 Subs. By Ord, 12 of 1972, s.2 and Sch., for “In summons cases tried before a Magistrate and in case of the offeences mentioned in sub-section

(1) of secton 260, clauses (b) to (m), both inclusive, when tried. 2 Subs. Ibid, for the original marginal heading. 3 Subs. Ibid, for “In all other trials before Courts of Session and’Magistrates and in all inquiries under Chapter XII and XVIII.” 4 Sub-section (2A) ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 96.

124

357. Language or record of evidence: (1) The Provincial Government may direct that in any

district or part of a district, or in proceedings before any Court of Session or before any Magistrate

or class of Magistrates the evidence of each witness shall, in cases referred to in Section 356, be

taken down by the Sessions Judge or Magistrate with his own hand and in his mother-tongue,

unless he is prevented by any sufficient reason from taking ..down the evidence of any witness, in

which case he shall record the reason of, his nability to do so and shall cause the evidence to be

taken down in writing from his dictation in open Court.

(2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate, and shall

form part of the record:

Provided that the Provincial Government may direct the Sessions Judge or Magistrate to take down

the evidence in the English language or in the language of the Court, although such language is

not his mother tongue.

358. Option to Magistrate in cases under Section 355: In cases of the kind mentioned m Section

355, the Magistrate may, if he thinks fit, take down the evidence of any witness in the manner

provided in Section 356, or, if within the local limits of the jurisdiction of such Magistrate the- 1[Provincial Government] has made the order referred to in Section 357, in the manner provided

in the same section.

359. Mode of recording evidence under Section 356 or Section 357: (1) Evidence taken' under

-Section 356 or Section 357 shall not ordinarily be taken down in the form of question and answer,

but in the form of a narrative.

(2) The Magistrate or Sessions Judge may, in his discretion, take down, or cause to be taken down

any particular question and answer.

360. Procedure in regard to such evidence when completed: (I) As the evidence of, each witness

taken under Section 356 or Section 357 is completed, it shall be read over to him in the presence

of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary,

be corrected.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to

him, the Magistrate or Sessions Judge may, instead of correcting, the evidence make a

memorandum thereon of the objection, made to it by the witness, and shall add such remarks as he

thinks necessary.

(3) If the evidence is taken down in a language different from that in which it has been given and

the witness does not understand the language in which it is taken down, the evidence so taken

down shall be interpreted to him in the language in which it was given, or in a language, which he

understands.

1 Subs. By A.O, 1937, for “L.G”.

125

361. Interpretation of evidence to accused or his pleader: (1) Whenever any evidence is given

in a language not understood by the accused, and he is present in person, it shall be interpreted to

him in open Court in a language understood by him.

(2) If he appears by pleader and the evidence is given in a language other than the language of the

Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.

(3) When documents are put in for the purpose of formal proof, it shall be in the discretion of the

Court to interpret as much thereof as appears necessary.

362. Record of evidence in Presidency Magistrate's Court: [Omitted by A.0. 1949, Sch.].

363. Remarks respecting demeanour of witness: When a Sessions Judge or Magistrate has

recorded the evidence of a witness he shall also record such remarks (if any) as he thinks material;

respecting the demeanour of such witness whilst under examination.

364. Examination how recorded: (1) Whenever the accused is examined, by any Magistrate or

by any Court other than a High Court1* * * , 2* * * 3* * *the whole of such examination including

every question put to him and every answer given by him, shall be recorded in full, in the language

in which he is examined, or, if that is not practicable, in the language of the Court or in English;

and such record shall be shown or read, to him, or if he does not understand the language in which

it is written shall be interpreted to him in language which he understands, and he shaft be at liberty

to explain or add to his answers.

(2) When the whole is made conformable to what he declares is the truth, the record shall be signed

by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall

certify under his own hand that the examination was taken in his presence and hearing and that the

record contains a full and true account of the statement made by the accused.

(3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge

himself, he shall be bound,4* * *as the examination proceeds, to make a memorandum thereof in

the language of the Court, or in English, if he is sufficiently acquainted with the latter language;

and such memorandum shall be written and signed by the Magistrate or Judge with his own hand,

and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as

above required, he shall record the reason of such inability.

1 The words “within the meaning of the Government of India Act, 1935”, which were subs. By A.O, 1949, Sch. For “established by the Royal Charter [or the Chief Court of Oudh]” omitted by A.O, 1961, Art, 2 and Sch., (with effect from the 23rd March, 1956), The words in crotchts were

ins by the Oudh Courts (Supplementary) Act, 1925 (32 of 1925), s.2 and Sch. 2 The words “or the Chief Court of the Punjab” rep. by the |Repealing and Amending Act, 1919 (18 of 1919) 3 The word “or the Chief Court of the Punjab” rep. by the Repealing and Amending Act, 1919 (18 of 1919). 4 The words “unless he is a Presidency Magistrate” rep. by the code of Criminal Procedure (Second Amdt.) Act, 1923 (37 of 1923), s.2

126

(4) Nothing in this section shall be deemed to apply to the examination of an accused person

under Section 263 1* * *.

365. Record of evidence in High Court: Every High Court 1* * * 2* 3* * * 4* * * 5[shall] from

time to time, by general rule, prescribe the manner in which evidence shall be taken down in cases

coming before the Court, 6[and the evidence shall be taken down in accordance with such rule].

____

CHAPTER XXVI

OF THE JUDGMENT

366. Mode of delivering Judgment: (1) The judgment in every trial in any Criminal Court of

original jurisdiction shall be pronounced or the substance of such judgment shall be explained--

(a) in open Court either immediately after the termination of the trial or at some subsequent time

of which notice shall be given to the parties or their pleaders and

(b) in the language of the Court, or in some other language which the accuser , or his pleader

understands:

Provided that the whole judgment shall be read out by the presiding Judge if he is requested so to

do either by the prosecution or the defence.

(2) The accused shall, if in custody, be brought up, or; if not in custody, be required by the Court

to attend, to hear judgement delivered, except where his personal attendance during the trial has

been dispensed with and the sentence is one of fine only or he is acquitted, .either of which cases

it may be delivered in the presence of his pleader. :

(3) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of

the absence of any party or his pleader on the day or from the place notified for the delivery thereof,

or of any omission to serve, or defect in Sewing, on the parties or their pleaders, or any of them,

the notice of such day and place.

(4) Nothing in this section shall be construed to limit in any way the extent of the

provisions of Section 537.

1 The words “or in the course of a trial held by a Presidency Magistrate” omitted by A.O, 1949, Sch. These words were subs. By Act 37 of 1923,

s.2 for :or section 362, sub-section (sA)” which had been ins. By Act 18 of 1923, s.98. 2 The word “and” repl. By the Lower Burma Courts Act, 1900 ( 6 of 1900). 3 The words “the Chief Court of the Punjab” rep. by Act 18 of 1919. 4 The words “and the Chief Court of Lower Burma” rep. by Act 11 of 1923, s.3 and Sch.II. 5 Subs. For may” by the code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.99. 6 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1928), s.99 for “and the Judges of such Court shall take down the evidence

or the substance thereof in accordance with the rule (if any) so prescribed.”

127

367. Language of judgment-Contents of Judgment: (1) Every such judgment shall, except as

otherwise expressly provided by this Code, be written by the presiding officer of the Court 1[or

from the dictation of such presiding officer in the language of the Court or in English; and shall

contain the point or-paints, for determination, the decision, thereon and the reasons for the

decision; and shall be dated and signed by the presiding officer in open Court at the time of

pronouncing it 2[and where it is not written by the presiding officer with his own hand, every page

of such judgment shall be signed by him].

(2) It shall specify, the offence (if any) of which, and the section of the Pakistan Penal Code or

other law under which, the accused is convicted, and the punishment to which he is sentenced.

(3) Judgment in alternative: When the conviction is under the Pakistan Penal Code and it is

doubtful under which of two sections, or under which of two parts of the same section, of that

Code the offence falls, the Court shall distinctly express the same, and pass judgment in the

alternative.

(4) If it be a judgment of acquittal it shall state the offence of which the accused is acquitted, and

direct that he be set at liberty.

(5) If the accused is convicted of an offence punishable with death, and the Court sentences him

to any punishment other than death, the Court shall in its judgment state the reason why sentence

of death was not passed3[ :]

4* * * * * * 5[(6) For the purposes of this section an; order under Section 118 or Section 123, subsection] (3),

shall be deemed to be a judgment.

368. Sentence of death: (1) When any person is sentenced to death, the sentence shall direct that

he be hanged by the neck till he is dead.

6* * * * *

369- Court not to alter judgment: 7[Save as otherwise provided by this Code or by any other law

for the time being in force or in the case of a High Court, 8* * *by the letters Patent of such High

Court, no Court ],when it has signed its judgment, shall alter or review the same, except 9* * *to

correct a clerical error.

1 Ins. Ibid, s.100. 2 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.100. 3 Subs. By the Law Reforms Ordinance, 1972 (12 of 1972)s.2 and Sch., for “full-stop”. For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 4 Proviso omitted ibid. 5 Sub-section (6) ins. Ibid. 6 Sub-section (2) omitted by the Criminal Procedure (Amdt.) Act, 1974, (25 of 1974), s.2 and Sch., “No Court order than a High Court”. 7 Subs. Ibid, s.101, for “No Court other than a High Court”. 8 The words “established by Royal Charter” omitted by the Central Laws (Statute Reform ) Ordinance, 1960, s.3 and 2nd Sch. (with effect from the 14th October, 1955). 9 The words and figures “as provided in sections 395 and 484 or” rep. by Act 18 of 1923, s.101.

128

370. Presidency Magistrate's judgment: [Omitted by A.O. 1949, Sch.]

371. Copy of Judgment, etc., to be given to accused1**: 2[(1) in every case where the accused

is convicted of an offence, a copy of the Judgment shall be given to him at the time of pronouncing

the judgment or, when the accused so desires, a translation of the judgment in his own language,

if practicable, or in the language of the Court, shall be given to him without delay. Such copy or

translation shall be given free of cost:

5[Provided that this sub-section shall not apply, to cases tried summarily].

3* * * * *

(2) Case of person sentenced to death: When the accused is sentenced to death by a Sessions

judge, such Judge shall further inform him of the period within which, if he

wishes to appeal, his appeal should be preferred.

372. Judgment when to be translated : The original judgment shall be filed with the record of

proceedings, and, where the original is recorded-in a different language from that of the Court, and

the accused so requires, a translation thereof into the language of the Court shall be added to such

record.

373. Court of Session to send copy of finding and sentence to [officer-in-charge of prosecution]

: In cases tried by the Court of Session, the Court shaft-forward a copy of Its finding and sentence

(if any) to the [officer-in-charge of prosecution in the district] within the local limits of whose

jurisdiction the trial was held.

CHAIPTER XXVII

OF THE SUBMISSION OF SENTENCES, FOR CONFIRMATION

374. Sentence of death to be submitted by Court of Session : When the Court of Session passes

.sentence of death 'the, proceedings shall be submitted to the High Court and the sentence shall not

be executed unless it is confirmed by the High Court.

375. Power to direct further inquiry to be made or additional; evidence to be taken:

(1) If when such proceedings are submitted the High Court thinks that a further inquiry should be

made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the

convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or

taken by the Court of Session.

4[(2) Unless the High Court otherwise directs, the presence of the convicted person may be

dispensed with when such inquiry is made or such evidence is taken]

1 The words “on application” omitted, ibid. 2 Sub-section (1) subs. By the Law Reforms Ordinance, 1972 (12 of 1972) s.2 and Sch.

For enforcement of this amendment in the Provinces, see para 2 of footnote 2 on p.40 supra. 3 Sub-section (2) omitted ibid. 4 Subs ibid, for the original sub-section (2).

129

(3) When the inquiry and the evidence (if any) are not made and taken by the High Court, the result

of such inquiry and the evidence shall be certified to such Court.

376. Power to High Court to confirm sentence or annul conviction : In any case submitted

under Section 374, 1* * * the High Court--

(a) may confirm the sentence, or pass any other sentence warranted by law, or

(b) may annul the conviction, and convict the accused of any offence of which the

Sessions Court might have convicted him, or order a new trial on the same or an amended

charge, or

(c) may acquit the accused person :

Provided that no order of confirmation shall be made under this section until the period allowed

for preferring an appeal has expired, or, if an appeal is presented within such

period, until such appeal is disposed of.

377. Confirmation of new sentence to be signed by two Judges : In every case so submitted,

the confirmation of the sentences-or any new sentence or order passed by the High Court, shall,

when such Court consists of two or more Judges, be made. passed and signed by at least two of

them.

378. Procedure in case of difference of opinion : Where any such case is heard before a Bench

of Judges and such Judges are equally divided in opinion, the case, will their opinions thereon,

shall be laid before another Judge and such Judge, after such hearing as he thanks fit, shall deliver

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

379. Procedure in cases submitted to High Court for confirmation : In cases submitted by the

Court of Session to the High Court for the confirmation of a sentence of death, the proper officer

of the High Court shall, without delay, after the order of confirmation or other order has been made

by the High Court, send a copy of the order under the seat of the High Court and attested with his

official signature, to the Court

of Session.

2[380. Procedure in cases submitted by Magistrate not empowered to act under Section

562: [Rep. by Probation of Offenders Ordinance, XLV of 1960, Section 16].

5subs. by Ord. 37 of 2001, S.62(w.e.f 14-08-2001). 1 The words “whether tried with the aid of assessors or by jury.” Omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and sch. For enforcement of this amendment in the Provinces, see, para 2 of footnote 2 on p. 40, supra. 2 Subs. by the Code of Criminal procedure (Amdt.) Act, 1923 (18 of 1923) ,s.159, for the original entry.

130

CHAPTER XXVIII

OF EXECUTION

381. Execution of order parsed under Section 376 : When a sentence of death passed by a

Court of Sessions submitted to the High Court for confirmation, such Court of Session shall, on

receiving the order of confirmation or other order of the High Court thereon, cause such order to

be carried into effect by issuing a warrant or taking such other steps as may be necessary 5[:]

Provided that the sentence of death shall not be executed if the heirs of the deceased pardon the

convict or enter into a compromise with him even at the last moment before execution of the

sentence.

382. Postponement of capital sentence on pregnant woman : If a woman sentenced to death is

found to be pregnant, the High Court shall order the execution of the sentence to be postponed,

and may. if it thinks fit; commute the sentence to 1[imprisonment for life].

2[382-A. Postponement of execution of sentences of imprisonment under Section 476 or for

a period of less than one year : Notwithstanding anything contained in Section 383 or 391,

where the accused--

(a) is awarded any sentence of imprisonment under Section 476, or

(b) is sentenced in cases other than those provided for in Section 381, to imprisonment

whether with or without fine or whipping, for a period of less than one year.

The sentence shall not, if the accused furnishes bail to the satisfaction of the Court for his

appearance at such time and place as the Court may direct, be executed, until the expiry of the

period prescribed for making an appeal against such sentence, or if an appeal is made within that

time, until the sentence of imprisonment is confirmed by the Appellate Court, but the sentence

shall be executed as soon as practicable after the expiry of the period prescribed for making an

appeal. or in case of an appeal, as soon as practicable after the receipt of the order of the Appellate

Court confirming the sentence.

382-B. Period of detention to be considered while awarding sentence of imprisonment :

Where a Court decides to pass a sentence of imprisonment on an accused for an offence it 92 3[shall] ,take into consideration the period, if any, during which such accused was detained in

custody for such offence.

1 Subs. By the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch, for “transportation” (w.e.f 13.4.72) 2 Section 382__ A, section 382__B and section 382-C ins. By the Law Reforms Ordinance, 1972 ()s.2 and Sch.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 3 Subs. By the Code of Crminal Procedure (Second Amdt.) Ordinance, 1979 (71 of 1979), s. 2 for “may”. 5Subs. + added by Act II of 1997, S.14.

131

382-C. Scandalous or false and frivolous pleas to be considered in passing sentence : In

passing a sentence on an accused for any offence, a Court may take into consideration any

scandalous or false and frivolous plea taken in offence by him or on his behalf.

383. Execution of sentences of transportation or imprisonment in other cases : Where the

accused is sentenced to 1[imprisonment for life] or imprisonment in cases other than those provided

for by Section 381 2[and Section 382-A] the Court passing sentence shall forthwith forward a

warrant to the jail in which he is, or is to be, confined, and, unless the accused is already confined

in such jail shall forward him to such jail, with-the warrant.

384. Direction of warrant for execution : Every warrant for the execution of a sentence of

imprisonment shall be directed to the officer-in-charge of the jail or other place in which the

prisoner is, or is to be, confined.

385. Warrant with whom to be lodged : When the prisoner is to be confined in a jail, the warrant

shall be lodged with the jailor.

3[386. Warrant for levy of fine : (1) Whenever an offender has been sentenced to pay a fine, the

Court passing the sentence may take action for the recovery of the fine in either or both of the

following ways, that is to say, it may--

(a) issue a .warrant for the levy of the amount by attachment and sale of any movable property

belonging to the offender;

(b) issue a warrant .to the 5[District Officer (Revenue)] authorising him to realise the amount by

execution according to civil process against the movable or immovable property, or both, of the

defaulter:

Provided that, if the sentence directs that in default of payment of the fine the offender shall be

imprisoned, and if such offender has undergone the whole of such imprisonment in default, no

Court shall issue such warrant. 4* * *

1 Subs. By the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s. 2 and Sch. For “transportation” (W.e.f 13.4.1972). 2 Ins. By the Law Reforms Ordinance 1972 (12 of 1972) s.2 and Sch. For enforcement of this amendemetn in the Provinces, see para 2 of footnote 2 on page 40 supra. 3 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 102, for the original s. 386. 4 Thw words “unless for special reasons to be recorded in waiting it cansiders it necessary to do so “omitted by Ordinance 12 of 1972, S.2 and Sch. 5Subs. by Ord. 37 of 2001, S.63 (w.e.f 14-08-2001)

132

(2) The 1[Provincial Government], may make rules2 regulating the manner which warrantsunder

sub-section (1), clause (a), are to be executed, and for the summary determination if any claims

made by any person other than the offender in respect of any property attached in execution of

such warrant.

[(3) Where the Courts issue a warrant to the 7[District Officer (Revenue)] under sub-section (1),

clause- (b) such warrant shall be deemed to be a decree and the Collector to be the decree-holder,

within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which

any decree for a like amount could be executed shall, for the purposes, of the said Code, be deemed

to be the Court which passed the .decree, and at the provisions of that Code as to execution of

decrees shall apply accordingly :

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

387. Effect of such warrant : 3[A warrant issued under Section 386, sub-section (1) clause (a),

by any Court may be executed-within the focal limits of the jurisdiction of such Court, and ft shall

authorize the 4[attachment] and sale of any such property without such limits, when endorsed by

the Magistrate 5* * * within the local limits of whose jurisdiction such property is found.

6[388. Suspension of execution of sentence of imprisonment: (1) When an offender has been

sentenced to fine only and to imprisonment in default of payment of the fine, and the fine is not

paid forthwith, the Court may—

(a) order that the fine shall be payable either in full on or before a date not more than thirty

days from the date of the order or in two or three installments, of which the first, shall be

payable on or before a date not more than thirty days from the date of the order and the

other or others at an interval or at intervals, as the case may be, of not more than thirty

days, and

(b) suspend the execution of the sentence of imprisonment and release the offender, on

the execution by the offender of a bond, with or without sureties; as the Court thinks fit,

conditioned for his appearance before the Court on the date or dates on or before which

payment of the fine or the installments thereof, as the case may be, is to be made and if the

amount of the fine or of any installment, as the case may be, is not realised on or before

the latest date on which it is payable under the order, the Court may direct the sentence of

imprisonment to be carried into execution at once.

1 Subs. By A.O, 1937, for “L.G”. 2 For “Karachi” Rules for Recovery of Fines, 1960, see Gaz of Karachi 1960, Pt. II, pp. 83-84. 3 Subs. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923, s. 103, for “Such warrant”. 4 Subs. Ibid, for “distress”. 5 The words “or Chief Presidency Magistrate” omitted by A.O, 1949, Sch. 6 Subs. By the code of Criminal Procedure (Second Amdt.) Act, 1923 (37 of 1923), s.3, for the original s. 388. 7Subs. by Ord. 37 of 2001, S.63 (w.e.f 14-08-2001)

133

(2) The provisions of sub-section (1) shall be applicable also in any case in which an order for the

payment of money has been made on non-recovery of which imprisonment may be awarded and

the money is not Paid forthwith; and, if the person against whom the order has been made, of being

- required to enter info a bond such as is referred to in that sub-section, fails to do so the Court

may at once pass sentence of imprisonment.

389. Who may issue warrant : Every warrant for the execution of any sentence may be issued

either by the Judge or Magistrate who passed the sentence, or by his successorin- office.

390. Execution of sentence of whipping only : When the accused is sentenced to whipping only,

the sentence shall 1[subject to the provisions of .Section 391 be executed at such place and time

as; the Court may direct.

391. (1) When-the accused

2[(a) Execution of sentence of whipping, in addition to imprisonment : is sentenced to whipping

only and furnishes bail to the satisfaction of the Court for his appearance at such time and place as

the Court may direct, or

(b) is sentenced to whipping in addition to imprisonment,] the whipping shall not be inflicted until

fifteen-days from the date of the sentence, or if an appeal is made within that time, until the

sentence is confirmed by the Appellate Court, but the whipping shall be inflicted as soon as

.practicable after the expiry of the fifteen days, or, in case of an appeal, as soon as practicable after

the receipt of the order of the Appellate Court

confirming the sentence;

(2) The whipping shall be inflicted in the presence of the officer incharge of the Jail, unless the

Judge or Magistrate orders it to be inflicted in his own presence.

(3) No accused person shall be sentenced to whipping in addition to imprisonment when the term

of imprisonment to which he is sentenced is less than three months.

392. Mode of inflicting punishment: (1) In the case of a person of over sixteen years of age

whipping shall be inflicted with a light rattan not less than half an inch in diameter, in such mode,

and on such part of the person, as the 3[Provincial Government] directs; and in the case of a person

under sixteen years of age, it shall be inflicted in such mode, and on such part of the person, and

with such instruments, as the Provincial Government directs.

(2) Limit of number of stripes : In no case shall such punishment exceed thirty Stripes 4[and, in

the case of a person under sixteen years of age, it shall not exceed fifteen stripes.]

1 Ins. By the Criminal Law Amendment Act, 1923 (12 o 1923), s.21. 2 Subs. For “is sentenced to whipping in addition to imprisonment in a case which is subject to appeal”. Ibid, s. 22. 3 Subs. By A.O, 1937, for “L.G”. 4 Ins. By the Whipping Act, 1909 (4 of 1909), s. 7

134

393. Not to be executed by instalments - Exemptions: No sentence of whipping shall be executed

by instalments; and none of the following persons shall be punishable with whipping, namely :

(a) females:

(b) males sentenced to death or to 1[imprisonment for life] 2* * * or to imprisonment

for more than five years;

(c) males whom the Court considers to be more than forty-five years of age.

394. Whipping not to be inflicted if offender not in fit state of health : (1) The punishment of

.whipping shall not be inflicted unless a medical officer, if present, certifies, or, if there is not a

medical officer present, unless it appears to the Magistrate or officer present, that the offender is

in a fit state of health to undergo such punishment.

(2) Stay of execution : if during the execution of a sentence of 'whipping, a medical officer

certifies, or it appears to the Magistrate-or officer present, that the offender is not in a fit state of

health to undergo the remainder of the sentence, the whipping shall toe finally stopped.

395. Procedure if punishment cannot be inflicted under Section 394 : (1) In any case in which

under Section 394, a sentence of whipping is wholly or partially, prevented from being executed;

the Offender shall be kept in custody till the Court which passed the sentence can revise it; and the

said Court, may, at its discretion, either remit such sentence, or sentence the offender in lieu of

whipping, or in lieu of so much of the sentence of whipping as was not executed, to imprisonment

for any term not exceeding twelve months, 3[or to a fine not exceeding-five-hundred rupees, which

may be in addition to any other punishment to which he may have been sentenced for the same

offence.

(2) Nothing in this section shall be deemed to authorize any Court' to inflict imprisonment for a

term 4[or a fine of an amount] exceeding that to which the accused is liable by law, or that which

the said Court is competent to inflict.

396. Execution of sentence on escaped convicts : (1) When sentence, is passed under this Code

on-an escaped convict, such sentence if of death, fine or whipping, shall subject to the provisions

hereinbefore contained, take effect immediately, and, if, of imprisonment, 5* *or 6[imprisonment for life] shall take effect according to the following rules, that is to say :

1 Subs. By the Criminal Procedure (Amdt.) Act, 197 (25 of 1974), s.2 and Sch., for “transportation” (We.f. 13.4.72) 2 Thw words, “or to penal servitude” omitted by the Criminal Law (Ex-tinction of Discrimintary Privileges) Act, 1949 (2 of 1950), sch. 3 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 105. 4 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 105. 5 Thw words “penal servitude” omitted by the Criminal Law (Extinction of Discriminatory Privileges)Act, 1949 (2 of 1950), Sch. 6 Subs. By the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch., for “transportation” ( w.e.f 13.4.72).

135

(2) If the new sentence is severer in its kind than the sentence which such convict was undergoing

when he escaped/the new sentence shall take effect immediately.

(3) When the new sentence is not severer in its kind than the sentence the convict was undergoing

when he escaped, the new .sentence shall take effect after he has suffered imprisonment2* * 1*

* * , for a further period equal to that which, at the time of his escape, remained unexpired of his

former sentence.

Explanation : For the purposes of this section-

2* * * * *

(b) a sentence of imprisonment with solitary confinement shall be deemed severer than a sentence

of the same description of imprisonment without solitary confinement, and

(c) a sentence of rigorous imprisonment shall be deemed severer than a sentence of

simple imprisonment with or without solitary confinement.

397. Sentence of offender already sentenced for another offence : When a person

already undergoing a sentence of imprisonment, 2* *, or 3[imprisonment for life], is sentenced to

imprisonment, or imprisonment for life such imprisonment, or 103 (imprisonment for life], shall

commence at the expiration of the imprisonment, or imprisonment for life to which he has been

.previously sentenced, 4[unless the Court directs that the subsequent sentence shall run

concurrently with such previous sentence] :

5* * * *

6[Provided further, that where a person who has been sentenced to imprisonment by an order under

Section 123 in default of furnishing security is. whilst undergoing such sentence, sentenced to,

imprisonment for an offence committed prior to the making of such order, the latter sentence shall

commence immediately.]

398. Saving as to Sections 396 and 397: (1) Nothing in Section 396 or Section 397 shall be held

to excuse any person from any part Of the punishment to which he is liable upon his former or

subsequent conviction.

(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive

sentence of imprisonment, brio a sentence of 7[imprisonment for life] 8* * *and the person

undergoing the sentence is after its execution to undergo a further substantive sentence, or further

substantive sentences, of imprisonment, 9[or [imprisonment for life], effect shall not be given to

1 The words “or transporation, as the case may be “omitted ibid. 2 Clause (a) omitted ibid. 3 Subs. Ibid,. for “or transportation”. 4 Ins. By Act 18 of 1923, s. 106. 5 Proviso omitted by Act 25 of 1974, s.2 and Sch. 6 Ins. By the Code of Criminal Procedure (Amdt.) act, 1923 (18 of 1923), s. 106. 7 Subs. By the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch, for “transporation” (W.e.f 13-4-72). 8 Thw words “or penal servitude for an offence punishable with imprisonment” omitted by Act 18 of 1923, s. 106. 9 Subs. Ibid., for “transportation or panel servitude.”,

136

the award of imprisonment in default of payment of the tine until the person has undergone the

further sentence or sentences.

399. Confinement of youthful offenders in reformatories : (1) When any person under the age

of fifteen years is sentenced by any Criminal Court to imprisonment for any offence, the Court

may direct that such person, instead of being imprisoned in a criminal jail, shall be confined in any

reformatory established by the 1[Provincial Government] as a fit place for confinement, in which

there are means of suitable discipline and of training in some branch of useful industry or which

is kept by a person willing to obey such rules as the Provincial Government prescribes with regard

to the discipline and training of persons confined therein.

(2) Alt persons confined under this section shall be subject to the rules so prescribed.

(3) This section shall not apply to any place in which the Reformatory Schools Act, 1897, is for

the time being in force.

400. Return of warrant on execution of sentence : When a sentence has been fully executed, the

officer executing it shall return the warrant to the Court from which it is issued, with an

endorsement under his hand certifying the manner in which the sentence has been executed.

CHAPTER XXIX

OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF

SENTENCES

2401. Power to suspend or remit sentences : (1) When any person has been sentenced to

punishment of ah offence, 3* * *the 4[Provincial Government] 5* * *may at any time without

conditions or upon any conditions which the person sentenced accepts, suspend the execution of

his sentence or remit the whole or any part of the punishment to which he has been sentenced7[:].

7[Provided that the provincial government shall have not power to suspend or remit any sentence

awarced to an offender under chapter XVI of the Pakistna Penal code if an offence has been

committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs

or practices].

(2) Whenever an application is made to the Provincial Government for the suspension or remission

of a sentence, the Provincial Government may require the presiding Judge of the Court before or

by which the conviction was had or confirmed to state his opinion as to whether the application

should be granted or refused, together with his reasons for such opinion 6[and also to forward with

1 Subs. By A.O, 1937, for “L.G.”. 2 As regards conditional release of good conduct prisoners in the Punjab, see the Good Conduct Prisoner” Probational Release, act 1926 (Punjab

Act 10 of 1926). The Chief Commisioner of Karachi shall exercise the powers conferred as a Provincial Government under this section, subject to

certain cvonditions, see-Gaz of P. 1953, Ext. P. 861. 3 The words “the G.G in C. or” rep by A.O, 1937. 4 Subs. Ibid., for “L.G”. 5 Thw words “as the case ma be “ rep. ibid. 6 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), section 107. 7Subs+ Ins. by Act I of 2005, S.15.

137

the statement of such opinion a certified copy of the record of the trial or of such record thereof as

exists.]

(3) If any condition on which a sentence has been suspended or remitted is, in the 1[opinion of] the

Provincial Government, not fulfilled, the Provincial Government may cancel the suspension or

remission, and thereupon the person in whose favour the sentence has been suspended or remitted

may, if at large, be arrested by any police-officer without warrant and remanded to undergo the

unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to

be fulfilled by the person in whose favour the sentence is suspended or remitted, or one

independent of his will.

(4-A) The provisions of the above subjections shall also apply to any order passed by a Criminal

Court under any section of this Code or of any other law, which restricts the liberty of any person

or imposes any liability upon him or his property.

(5) Nothing herein contained shaft be deemed to interfere with the right of 2[3the President] or of

the 4[Federal Government when such right is delegated to 5[i]]t to grant pardons, reprieves, respites

or remissions of punishment.

6[(5-A) Where a conditional 'pardon is granted by 7[the Presidentor in virtue of any powers

delegated to 8[it] by the 9[Federal Government, any condition thereby imposed, of whatever nature,

shall be deemed to have been imposed by a sentence of a competent Court under this Code and

shall be enforceable accordingly.

(6) The 10* * * 11[Provincial Government] may, by general rules or special orders, give

directions a to the suspension of sentences and the conditions on which petitions should be

presented and dealt with.

12[402. Power to commute punishment : (1) The Provincial Government may, without the

consent of the person sentenced, commute any one of the following sentences or any other

mentioned after it:-

1 Subs. By the Repealing and Amending Ordinance, 1961 (1 of 1961), section 2 and 2nd Sch., for “opinion of 8 * * of “. The asterisks denote the

omission of “G.G in C, or “ which were rep. by A.O, 1937. 2 Subs. By the code of Criminal procedure (Amdt.) Act, 1923 (18 of 1923), for “her Majesty”. 3 Subs. by A.O., 1961, art. 2 and sch., for “His Majesty” (With effect from the 23rd march, 1956). 4 Subs. by F.A.O. 1975, Art 2 and Table for “Central Government” (w.e.f 28.7.75) which was previously amended by A.O 1937, for Governor General. 5 Subs. ibid for “him” 6 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 107 7 Subs. by A.O, 1961, Art.2 and Sch., for “His Majesty” (with effect from the 23rd March, 1956), 8 Subs. by A.O, 1937, for “him”. 9 Subs. by FAO 1975 Art 2 and Table for “Central Government (w.e.f 28.07.75) which was previously amended by A.O 1937 for “Governor General” 10 Thw words “G.G” in C, and the “rep by A.O, 1937. 11 Subs. by A.O, 1937, for L.G.”. 12 S. 402 was re-numbered as sub-section (1) of that section by Act 18 of 1923, s. 108. The Chief Commissioner of Karachi tshall exercise the

powers conferred on a Provincial Government under this section subject to certain conditions, see Gazetter of Paksitan, Extra, 1953, p. 861.

138

death imprisonment for life, rigorous imprisonment for a term not exceeding that to which he

might have been sentenced, simple imprisonment for a like term, fine.

(2) Nothing in this section snail affect the provisions of Section 54-or Section 56 of the Pakistan

Penal Code.

402-A. Sentence of death: The powers conferred by Sections 401 and 402 upon the provincial

Government may, in the case of sentences of death, also be exercised by the President.

402-B. Certain restrictions on the exercise of powers by Provincial Government :

Notwithstanding anything contained in Section 401 or Sector 402, the Provincial Government shall

not except with the previous approval of the President, exercise the powers conferred thereby in a

case where the President has passed an order in exercise of his powers under the Constitution to

grant pardons, reprieves and respites or to remit, suspend or commute any sentence or of his powers

under Section 402-A.

402-C. Remission or commutation of certain sentences not to be without consent :

Notwithstanding anything contained in Section 401, Section 402, Section 402-A or Section 402-

B, the Provincial Government, the Federal Government or the President shall not, without .the

consent of the victim, or as the case may be of his heirs suspend remit or commute any sentence

passed under any of the sections in Chapter XVI of the Pakistan Penal Code.

402-D: provincial Governemtn not ot interfere in sentences of rape.- notwithstanding anything

contained in sections 401, 402 or 402B, the Provincial Government shall not suspend, remit or

commute any sentence passed under section 376 of the Pakistan penal code (Act XLV of 1860).

CHAPTER XXX

OF PREVIOUS ACQUITTALS OR CONVICTIONS

403. Person once convicted or acquitted not to be tried for same offence : (1) A person who

has once been tried by a Court of Competent Jurisdiction for an offence and convicted or acquitted

of such offence shall whiles such conviction or acquittal remains in force, not W liable to be tried

again for the same offence, nor on the same facts for any other offence for which a different charge

from the one made against him might have been .made under Section 236, or for which he might

have been convicted under Section 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence

for which separate charge might have been made against him on the former trial under Section

235, sub-section (1).

(3) A person convicted of any offence constituted by any act causing consequences: which

together, with such act, constituted a different offence from that of which he was convicted, may

be afterwards tried for such last mentioned offence, if the consequences had not happened, or were

not known to the Court to have happened, at the time when he was convicted.

139

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding

such acquittal or conviction, be subsequent charged with, and tried for,

any other offence constituted by the same acts which fie may have committed if the Court by which

he was first tried was not competent to try the offence with which he is subsequently charged.

(5) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act,

1897, or Section 188 of this Code.

Explanation : The dismissal of a complaint, the stopping of proceedings under Section 249, 1[or

the discharge of the accused is not an acquittal for the purposes of this section.

Illustrations

(a) A is tried upon a charge of theft as S servant and acquitted. He cannot afterwards, while

the acquittal remains In force, be charged with theft as a servant, or, upon the same facts,

with theft simply, or with criminal breach of trust.

(b) A is tried upon a charge of murder and. acquitted. There is no charge of robbery; but it

appears from the facts that A committed robbery at the time when the murder was

committed; he may afterwards be charged with, and tried for robbery,

(c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies.

A may be tried again for culpable homicide.

(d) A is charged before the Court of Session and convicted of the culpable homicide of B.

A may not afterwards be tried on the same facts for the murder of B.

(e) A is charged by a Magistrate of the First Class with, and convicted by him of, voluntary

causing hurt to S. A may not afterwards be tried for voluntarily causing grievous hurt to B

on the same facts, unless the case comes within paragraph 3 of the section.

(f) A is charged by a Magistrate of the Second Class with, and convicted by him of, theft

of property from the person of B. A may be subsequently charged with, and tried for,

robbery on the same facts.

(g) A, B and C are charged by a Magistrate of the First Class with, and. convicted by him

of robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the

same facts.

_____________

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch, for “the discharge of the accused or any entry made upon a charge under section 273”.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra.

140

PART VII

OF APPEAL, REFERENCE AND REVISION

CHAPTER XXXI

OFAPPEALS1

404. Unless otherwise provided, no appeal to lie: No appeal -shall lie from- any judgment or

order of a Criminal Court except-as provided for by this Code or by any other law for the time

being in force.

405. Appeal from order rejecting application for restoration of attached property: Any

person whose application under Section 89 for the delivery of property or the proceeds of the sale

thereof has been rejected .by any Court may appeal to the. Court to which appeals ordinarily. He

from the sentences of the former Court.

2[406. Appeal from order requiring security for keeping the peace or for good behaviour:

Any person who has been ordered 3[by a Magistrate under Section 118 to give security for keeping,

the peace or for good behaviour may appeal against such order 4[to the Court of Session;]

Provided that nothing in this section shall apply to persons the proceedings against whom are laid

before a Sessions Judge in accordance with the provisions of sub-section (2) or sub-section (3-A)

of Section 123].

406-A. Appeal from order refusing to accept or rejecting a surety: Any person aggrieved by

an order refusing to accept or rejecting a surety under Section 122 may appeal against which order

to the Court of Session. 407. [Omitted by Item No. 140 of Punjab Notification No. SO(J-II) 1-8/75

(P-V),dated 21-3- 1996 for Punjab.]

5* * * * * *

408. Appeal from sentence of Assistant Sessions Judge or Judicial Magistrate: Any person

convicted on a trial held by an Assistant Sessions Judge, or a Judicial Magistrate, Special

Magistrate or any person sentenced under Section 349 may appeal to the Court of Session :

Provided as follows:

(a) [Rep: by the Criminal Law Amendment Act, XII of 1923, S.23]

(b) When in any case an Assistant Sessions Judge 6[passes any sentence of imprisonment

for a term exceeding four years, 6* * * the appeal 7[of all or any of the accused

convicted at such trial shall lie to the High Court;

(c) when any person is convicted by a Magistrate of an offence under Section 124-A of

the Pakistan Penal Code, the appeal shall lie to the High Court.

1 For periods of limitation, see the Limitation Act, 1908 (9 of 1908), s.2 and Sch. I second division. 2 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.109 for the original s. 406. 3 Ins. By A.O, 1949 Sch. 4 Subs. ibid., for clauses (a) and (b) 5 Clause (a) of the Provisio rep. by the Criminal Law Amendement Act, 1923 (12 of 1923), s.23. 6 The words “or any sentence of transportation “omitted by the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch. (w.e.f 13-4-72). 7 Ins. By the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923) s. 112.

141

6[409. Appeals to Court of Session how heard: Subject to the provisions of this section, an-

appeal to-.the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an

Additional Sessions Judge or an Assistant Sessions Judge]:

1[Provided that an Additional Sessions Judge shall hear only such appeal as the 2[Provincial

Government] may, by general or special order, direct or as the Sessions Judge of the Division may

make over to him :

Provided further that no such appeal shall be heard by an Assistant Sessions Judge unless the

appeal is of a person convicted on a trial held by any Magistrate of the Second Class or Third

Class.

410. Appeal from sentence of Court of Session: Any person convicted on a trial held by a

Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court.

411. [Omitted by AO. 1949, Sch}.

3[411-A. Appeal from sentence of High Court: (1) 4[Except in cases in which an appeal ties to

the Supreme Court under 5[Article 185 of the Constitution any person convicted on a trial held by

a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything

contained in Section 418 or Section 423, sub-section (2), or in the Letters Patent of any High Court,

appeal to the High Court-

(a) against the conviction on any ground of appeal which involves a matter of law only;

(b) with the leave of the Appellate Court or upon the certificate of the Judge who tried case

that it is a fit case for appeal, against the conviction on any ground of appeal which involves

a matter of fact only, or a matter of mixed law and fact, or any other ground which appears

to the Appellate Court to be a sufficient ground of appeal; and (c) with the leave of the

Appellate Court, against the sentence passed unless the sentence is, one fixed by

(2) Notwithstanding anything contained in Section 417, the Provincial Government may direct the

Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the

High Court n the exercise of its original criminal jurisdiction, and such appeal may notwithstanding

anything contained in Section 418, or Section 423, subsection (2), or in the Letters Patent of any

High Court, but subject to the restrictions imposed by clause (b) and clause (c) of sub-section (1)

of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law.

1 Provisio ins. Ibid, s.113 2 Subs. by A.O., 1937, for “L.G”. 3 S.411A, ins. By theCriminal procedure Amendment Act, 1973 (26 of 1943), s.2. 4 Subs. by A.O, 1961, Art 2 and Sch., for “without prejudice to the provisios of section 449” (with effect from the 23rd Marach, 1956). 5 Subs. by FAO 1975, Art. 2 and Sch, for “Article 58” (w.e.f 14-8-73), wihc was amended by A.O, 1964, Art. 2 and Sch, for “clause (b) of Article 159”. 6 Omitted and Subs. by Ord. 12 of 1972, S.2 Sch.

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(3) Notwithstanding anything elsewhere contained in any Act or Regulation an appeal under this

section shall be heard by a Division Court of the High Court composed of notless than two Judges,

being Judges other than the Judge or Judges by whom the original trial was held; and if the

constitution of such a Division Court impracticable, the High Court shall report the circumstances

to the Provincial Government which shall take action with a view to the transfer of the appeal

under Section 527 to another' High Court.

(4) Subject to such rules as may from time to time tie made by 1[the 2[Supreme Court in this behalf,

and to such conditions as the High Court may establish or require, an appeal shall tie to the

Supreme Court from any order made on appeal under sub-section (1) by a Division Court of the

High Court in respect of which order the High Court declares that The matter is a fit one of such

appeal.

412. No appeal in certain cases when accused pleads guilty: Notwithstanding anything

.hereinbefore contained, where an accused person has pleaded guilty and has been convicted by 3[a High Court], a Court of Session 4* * *or Magistrate of the First Class on such plea, there

shall be no appeal except as to the extent or legality of the sentence.

413. No appeal in petty cases: Notwithstanding anything hereinbefore contained there shall be

no appeal by a convicted person in cases in which 5[a High Court passes a sentence of

imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only or

in which a Court of Session 6* * *passes a sentence of imprisonment not exceeding one month

only or 7[in which a Court of Session or Magistrate of the First Class passes a sentence of fine not

exceeding fifty rupees only 8* * *.

Explanation: There is no appeal from a sentence of imprisonment passed by such Court or

Magistrate in default of payment, of fine when no substantive sentence of imprisonment has also

been passed.

414. No appeal from certain summary convictions: Notwithstanding anything hereinbefore

contained, there shall be, no appeal by a convicted person-in-any case tried summarily in which a

Magistrate empowered to act under Section 260 passes a sentence 9* * * of fine not exceeding

two 10[thousand] rupees only 4* * * .

10[414-A: No appeal from certain summary convictions under the law relating to price

control.- Notwithstanding anything contained in this code or any other law for the time being in

force, there shall be no appeal by a convicted person in any case tried summarily in which a Special

Magistrate appointed under section 14A passed a sentence of fine not exceeding five thousand

1 Subs. by the Federal Laws (Revision and Declaration) Act 1951 (26 of 1951), s.4 and III Sch., for “His Majesty in Council”. 2 Subs. by A.O, 1964, Art.2 and Sch., fro “Federal Court”. 3 Ins. By the Criminal Procedure Amendement Act, 1943 (26 of 1943), s.2 4 Thw words “or any Presidency Magistrate” omitted by A.O., 1949, Sch. 5 Ins. By the Code of Criminal Procedure Amendement Act, 1943 (26 of 1943), s.4 6 The words “or the District Magistrate or other Magistrate of the first class” rep. by the Criminal Law Amendment Act, 1923 (12 of 1923), s. 24. 7 Ins., ibid. 8 Thw words “ or of whipping only “ rep., ibid. 9 The words “of imprisonment not exceeding three month only, or “ rep. ibid, s. 25. 10Subs. and Ins. by Act III of 2006, S.21.

143

rupees under the Price Control and Prevention of Profiteering and hoarding Act, 1977 (XXIX of

1977) or under any other Federal law of Provincial law relating to price control.]

415. Proviso to Sections 413 and 414: An appeal may be brought against any sentence referred

to m Section 413 or Section 414 1[by which any punishment therein mentioned is combined with

any other punishment, but no sentence which would not otherwise be liable to appeal shall be

appealable merely on the ground that the person convicted is ordered to find security to keep the

peace.

Explanation: A sentence of imprisonment in default of payment of fine is not a sentence by which

two or more punishments are combined within the meaning of this section.

2[415-A. Special right of appeal in certain cases: Notwithstanding anything contained in this

Chapter, when more persons than one are convicted in one that, and an appealable, judgment or

order has been passed in respect of any of such persons,, all or any of the persons convicted at such

trial shall have a right of appeal-

416.Saving of sentences on European Briotish subjects. [Rep. by Act, XII of 1923, S.26]

3[4l7. Appeal in case of acquittal: (1) Subject to the provisions of sub-section (4); the Provincial

Government may in any case, direct the Public Prosecutor to present an appeal to the High Court

from an original or appellate order of acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court,

on an application made to it by the complainant in this behalf grants special leave to appeal from

the order of acquittal, the complainant may present such an appeal to the High Court.

4[(2-A) A person aggrieved by the order of acquittal passed by any Court-.-other than a High Court,

may, within thirty days, file an appeal against such order].

(3) No application under sub-section (2) for the grant of special leave to appeal from an order of

acquittal shall be entertained by the High Court after the expiry of sixty days from: the date of that

order,

(4) If, in any case, the application under sub-section (2) for the grant of special leave to appeal

from an order of acquittal is refused no appeal from that order of acquittal shall

lie under sub-section (1).

4[418. Appeal on what matters admissible: (1) An appeal may tie on a matter of fact as

1 Subs. by the Repleaing and Amending Act, 1975 (6 of 1945), s.2 and II Sch., for “ by which any two or more of the punishment therein

mentioned are combined.”. 2 Section 415A ins. By the Code of Criminal Procedrue (Amdt.) Act, 1923 (18 of 1923), s. 114. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for the original section 417.

For enforcement of this amendment in the Provinces, see para 2 of foot ntoe 3 on p. 40, supra. 4ins. by Act XX of 1994, S.3. 4 S. 418 was re-numbered as sub-section (1) of that section by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 115.

144

well as matter of law 1* * *.

2* * * * * *

Explanation : The alleged severity of a sentence shall for the purpose of this section, be

deemed to be a matter of law.

419. Petition of appeal: Every appeal shall be made in the form of petition in writing presented

by the appellant or his pleader, and every such petition shall (unless the Court to which it is

presented otherwise directs) be accompanied by a copy of the judgment or order appealed against 3* * *.

420. Procedure when appellant in jail: If the appellant is in jail, he may present his petition of

appeal and the copies accompanying the same to the officer incharge of the jail, who shall

thereupon forward such petition and copies to the proper Appellate Court.

421. Summary dismissal of appeal: (1) Op receiving the petition and copy under Section 419.or

Section 420, the Appellate Court shall peruse the same, and if it considers that there is no sufficient

ground for interfering, it may dismiss the appeal summarily :

Provided that no appeal presented under Section 419 shall be dismissed unless the appellant or his

pleader has had a reasonable opportunity of being heard in support of the same.

(2) Before dismissing an appeal under this section, the Court may calf for the record of the case,

but shall not be bound to do so.

422. Notice of appeal: If the Appellate Court does not dismiss the appeal summarily, it shall cause

notice to be given to the appellant or his pleader, and to such officer as the 4[Provincial

Government] may appoint in this behalf of the time and place at which such appeal will be heard,

and shall, on the application of such officer, furnish him with a copy of the grounds of appeal; and,

in cases of-appeals under 5[Section 411-A, sub-section (2) or Section 417, the Appellate Court

shaft cause a like notice to be Given to the accused

423. Powers of Appellate Court in disposing of appeal: (1) The Appellate Court shall then send

for the record, of the case, if, such record is not already, in Court. After perusing such record, and

hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, and in

case of an appeal under [Section 411-A, sub-section (2) or Section 417, the accused, if he appears,

the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal,

or may--

1 The commas and Words “except where the trial was by jury, in which case the appeal shall lie on a matter of law only” omitted by Ordinance 12 of 1972, s.2 and Sch. 2 Sub-section (2) omitted ibid. 3 The commas, words and figures “and in cases tried by a jury a copy of the heads of the charge recorded under section 367” omitted ibid. 4 Subs. by A.O., 1937, for “L.G.” 5 Subs. by the Code of Criminal Procedure Amendement Act, 1943 (26 of 1943), s.5, for “section 417”.

145

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry

be made, or that the accused be tried or 1[sent for trial to the Court of Session or High Court

as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or

discharge the accused, or order him to be tried by a Court of competent jurisdiction

subordinate to such Appellate Court or 2[sent] for trial, or (2) after the finding, maintaining

the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or

without such reduction and with or without altering the finding after the nature of the

sentence, but subject to the provisions of Section 106, sub-section (3), not so as to enhance

the same;

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment ;or any consequential or incidental order that may be just or

proper.

3* * * * *

424. Judgments of subordinate Appellate Courts: The rules contained In Chapter XXVI as to

the Judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable,

teethe judgment of any Appellate Court other than a High Court : Provided that, unless, the

Appellate Court otherwise directs, the accused shall not be brought up, or required to attendee hear

judgment delivered.

425. Order by High Court on appeal to be certified to lower Court: (1) Whenever a case is

decided on appeal by the High Court under this Chapter, it shall certify its judgment or order to

the Court by which the finding, sentence or order appealed against was recorded or passed. If the

finding, sentence-or order was recorded or passed by a Magistrate other than the District

Magistrate, the certificate shall be sent through the District Magistrate.

(2) The Court to which the High Court certifies its judgment or order shall thereupon make such

orders as are conformable to the judgment or .order of the High Court; and, if necessary, the record

shall be amended in accordance therewith.

426. Suspension of sentence pending appeals--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 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 2 Subs. ibid, for “committed”. 3 Sub-section (2) omitted ibid.

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1[(1-A) An Appellate court shall, except where it is of the opinion that the delay I nthe decision of

appeal has been occasioned by and act or omission of the appellant or any other person acting on

his behalf 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 convinctoin;

(b) To imprisonment for a period exceeding three years but not exceeding seven years and

howse appeal has not been decided within a period of one year of his conviction; or

(c) To imprisonment for life or imprisonment exceeding seven years and hwose appeal has not

been decided within a period of two years of this conviction:

Provided that the provisions of the foregoin paragraphs 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 Appellate Court, is a hardened desperate or dangerous criminal or is

accused of an act of terrorism punishable with death or imprisonment for life.

(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.

2[(2-A) 3[Subject to the provisions of Section 382-A when any person other, than a person accused

of a non-bailable 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 be released J3n 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.

4[(2-B) Where a High Court is satisfied that a convicted person has been granted special leave to

appeal to 5[the 6[Supreme Court ]]against any sentence which it has imposed or maintained, 7* *

*it may, ,if it so thinks fit order that pending the appeal the sentence or order appealed against be

suspended and, also, if the said parson is in confinement, that he be released on bail.

(3) When the appellant is ultimately sentenced to imprisonment, 8* * 9[or imprisonment for life

the time during which he is so released shall be excluded in computing the term for

which he is so sentenced.

1 Sub-section (1A) ins. B the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of foot ntoe 3 on p. 40, supra. 2 Sub-section (2A) ins. By the Code of Criminal Procedure (Amdt.) Act, 1945 (2 of 1945), s.3, 3 Ins. By Ordinance 12 of 1972, s.2 and Sch. 4 Sub-section (2B) ins by the Code of Criminal Procedure (Second Amdt.) Act, 1946 (4 of 1946), s.2. 5 Subs. by the Federal Law (Revsiion and Declaration) Act, 1951 (26 of 1951), s.4 and III Sch., for “His Majesty in Council”. 6 Subs. by A.O, 1961, Art. 2 and Sch., for “Federal Court” (With effect from the 23rd March, 1956). 7 Certain words rep. by Act 26 of 1951, 2.3 andch.II. 8 The words “penal servitude” rep., ibid. 9 Subs. by the Criminal Procedure (Amdt.) Act, 1974, (25 of 1974), s.2 and Sch, for “transporation” (w.e.f 13-4-72).

147

427. Arrest of accused in appeal from acquittal: When appeal is presented under Section 411-

A, sub-section (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 it to be taken : In dealing with any

appeal under this Chapter, the Appellate Court, if it thinks additional evidence tobe 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 a Magistrate.

(2) Where 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. 1* * * 20. Sub-sec. (2-B) inst. by the Code of Criminal Procedure

(Second Amendment) Act, 4 of 1946, S. 2.

(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 Judges of Court of Appeal are equally divided : When the Judges

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 2[Section 411-A, sub-section (2), or Section 417

shall finally abate on-the death of the accused, and every other appeal under this Chapter except

an appeal from a sentence of fine shall finally abate on the death of the appellant

1 The sem-colon and words”; but such evidence shall not be taken in the presence of jurors or assessors” omitted by the Law Reforms Ordinance,

1972 (12 of 1972), s.2 and Sch. For enforcement of this amendement in the Provinces, see para 2 of footnote 2 on p.40. supra. 2 Subs. by the Criminal Procedure Amendment act, 1943 (26 of 1943), s.5 for “section 417”.

148

CHAPTER XXXII

OF REFERENCE AND REVISION

432-433. Reference by Presidency Magistrate to High Court. Disposal of case according to

decision of High Court and direction as to costs. [Omitted by AO.1949, Sch.]

434. Power to resreve questions arising in original jurisdiction of High Court and

procedure when question reserved. [Omitted by Act, XXVI of 1943, s. 6.]

435. Power to call for records of inferior Courts: (1) The High Court or any Sessions Judge of

District Magistrate or any Subdivisional Magistrate empowered by the 1[Provincial Government]

in this behalf, 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 2[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 the examination of the record.

3[Explanation: All Magistrates shall be deemed to be inferior to the Sessions Judge for the

purposes of this sub-section.]

(2) 3* * *

(3) 4* * *

3[436. Power to order further inquiry: On examination any record under Section-435 or

otherwise

(a) the High Court may direct the Sessions Judge to require any Magistrate ubordinate to

him to make, and the Sessions Judge himself may direct 5[any] Judicial agistrate subordinate to

him to make, further inquiry into any complaint which has been dismissed under Section 203 or

sub-section (3) of Section 204, or into the case of any person accused of an offence who, has been

discharged 5[any Magistrate];

(b) the High Court or the Sessions, Judge may direct 5[any Magistrate] to make further

Inquiry into any proceedings to, which an order of discharge or release has been made

under Section 119:

Provided that no Court shall make any direction under this section for enquiry into the

case of a person Who has been released or discharged under Section 119 unless such person has

had an opportunity of showing cause why such direction should not be made. 1Subs. by A.O., 1937 for “L.G.” 2Ins. by the Code of Crinimal Procedure (Amdt) Act, 1923 (18 of 1923, S.116.) 3Omitted and subs. by Ord. 12 of 1972 , S.2 and Sch. 4Sub-section (3) rep. ibid. 5Subs. by Ord. 37 of 2001, S.66(w.e.f 14-08-2001).

149

437. Power to order commitment. [Omitted by Law Reforms Ordinance, XII of 1972, Sch. 152.]

438. 1[* * *]

439. High Court’s powers Of revision: (1) In the case of any proceeding the record of which has

been called for by itself 2* * *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 3* 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 4.29.

(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 a Magistrate 4* * *

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 5* * * a Magistrate

of the First Class.

6[(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 439A.]

(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.

7[(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 at so to show cause against his conviction.]

1Omitted by Ord. 12 of 1972, S.2 & sch. 2Subs. by the Code of Criminal Procedure (Amdt) Act, 1923 (18 of 1923), S.118 , for “by the Session judge”. 3The words and comma “or which has been reported for orders , “ omitted by Ord. 12 of 1972, S2 and sch. 4Omitted by Ord. 12 of 1972, S.2 and Sch. 5The Words “Presidency Magistrate or” omitted by A.O. 1949, Sch. 6Subs. by Ord. 12 of 1972, S.2 and Sch. For the original sub-section (4). 7Sub-section (6) ins. by Act 18 of 1923, S.119.

150

1[439-A. Sessions Judge's powers of revision: (1) In the case of any proceedings 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 nay be transferred to him under any general or

special order of the Sessions Judge.]

440. Option 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, Sch.]

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.

PART VIII

SPECIAL PROCEEDINGS

2CHAPTER XXXIII--443 to 463. --Special Provisions relating to cases in which European and

Pakistan British Subjects are concerened. [Omitted by the Criminal Law (Execution of

Discriminatory Privileges) Act, 1949, II of 1950, Schedule.]

_____________

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 distract or such other medical officer as

the 3[Provincial Government] directs, and thereupon shall examine such surgeon or other officer

as a witness, and shall reduce the examination to writing.

1 New section 439A in. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendment int eh Provincies, see, para 2 of footnote 3 on p.40, supra. 2 Chapter XXXIII (Section 443 to 449) was subs. for the original Chapter XXXIII (sections 443 to 463) by the Criminal Law Amendment Act, 1923 (12 of 1923), s.27 3 Subs by A.O., 1937, for “L.G”.

151

1[(1-A) 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 2[sent for trial] before Court of Session or High Court being

lunatic: 3[(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 of unsound mind and incapable of making his defence, the Magistrate or Court, as the case may

be, 4[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.

5[(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 6[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 accuser is capable of making his defence shall be receivable in evidence.

1 Ins. By the Codeo f Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 120 2 Subs. ibid., s.2 and Sch., for “committed before”. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch for sub-section (1).

For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra. 4 Subs. by Act, 18 of 1923, s.122, for “if the casei s one in which bail may be taken.” 5 Subs. ibid., for the original sub-section (2). 6 Subs. by A.O, 1937, for “L.G”.

152

468, Procedure on accused appearing before Magistrate or Court: (1) if, 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 1*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, 2[and if the accused is round to be of unsound mind and incapable of making

his defence, shall deal with such accused in accordance with the provisions of Section 466.

3[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 that there is reason to believe that the accused committed art 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 person is acquitted upon the

ground that, at the time at which he is alleged to have committee 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 hot.

471 Person acquitted on such ground to be detained In safe custody: (1) Whenever 4[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 5[detained] in safe Custody in such place and

manner as the Magistrate or Court thinks fit, 6[and shall report the action taken to the 7[Provincial

Government:]] 8* * *:

3[Provided that no order for the detention of the accused in a lunatic asylum .shall be

madeotherwise than in accordance with such rules as the 4[Provincial Government] may have made

under the Lunacy Act, 1912.]

9* * * * * *

1 The word “person” rep. by s. 123 of the Code of Criminal Procedure. 2 Ins. ibid. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for section 469.

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 4 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.124, for “such judgment”. 5 Subs. ibid., for “kept”. 6 Ins.ibid. 7 Subs. by A.O., 1937, for “L.G.”. 8 Thw words “and shall report the case for the orders of the L.G.” rep. by the Repealing and Amending Act, 1914 (10 of 1914), s.3 and Sch.II. 9 Sub-sectins (2) and (3) rep. by the Lunacy Act, 1912 (4 of 1912), s.101 and Sch., II.

153

1[(2) Power of Provincial Government to relieve Inspector-General of certain functions: The

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

under the provisions of Section 466 or this section, to discharge at! or any of the functions of the

inspector General of Prisons under 2* *Section 473 or Section 474.

472.Lunatic prisoner to be visited by Inspector General [Rep. by the Lunacy Act, 1912 IV of

1912), S, 101 and Schedule II.]

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

person is 3[detained] under the provisions of Section 466, and 4[in the case of a person detained in

a jail, the Inspector-Genera! 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 5[detained] under the provisions of Section 466 or Section 471, and such

Inspector-General or visitors shall certify that in his or their judgment, fie may be 6[released]

without danger or his doing injury to himself or to any other person, the 7[Provincial Government]

may thereupon order him to 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.

(2) Such Commission shall make forma! 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 8[release] or detention as it thinks fit.

9[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--

1 Original sub-section (4) was re-numbered “(2)” by Act 18 of 1923, s.124. 2 The word and figures “section 472” rep. by Act 10 of 1914, s.3 and Sch.II. 3 Subs. by Act 18 of 1923, s.125, for “confined”. 4 Subs. ibid., for “Such inspector General or visitors”. 5 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.126 for “confined”. 6 Subs. ibid., for “discharged”. 7 Subs. by A.O, 1937, for “L.G”. 8 Subs. by Act 18 of 1923, s.126 for “discharge”. 9 Subs. ibid., s.127, for the original s. 475.

154

(a) be properly 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 anytime to the Magistrate or Court that

such person is capable of making his defence, such Magistrate or Court shaft 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

1[476. Procedure in cases mentioned in Section 195: When any offence 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 authorised by law for such offence, except 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 2[one thousand rupees], or both, it such Court be a Court of a Magistrate

of the First Class, a Civil Court other than a High

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch for the original sections 476 and 476A, which were previously amended

by various Acts. For enforcement of this amendement in the provinces, see, para 2 of footnote 2 on p. 40, supra. 2 Subs. by the Law Reforms (Amdt.) Act, 1976 (21 of 1976), s.2 and Sch, for “five hudnered rupees” (w.e.f 18-4-76).

155

Court, a District Court or a Court exercising the powers of a District Court, or a Revenue Court no

to Court of Collector.

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

fine not exceeding fifty rupees, or both, if such Court be a Criminal Court or a 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 proceeding in such Court by the Court to which such former Court is

subordinate within the meaning of sub-section (3) of Section 119.

(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 the case of a, sentence by a Court of Session, or District Courts of 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 Sessions Judge.

(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals

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 offences 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. Appeals [Omitted by Law Reforms Ordinance, XII of 1972].

477. Power of Court of Session to such Offences comitted before itself. [Rep. by the Code of

Criminal Procedure (Amendment) Act 1923, XVIII of 1923, S.

129

478- Power of Civil or Revenue Courts to complete inquiryt and committ to High Court or Court

of Session. [Omitted by Law Reforms Ordinance, XII Of 1972].

156

479. Power of Civil or Revenue Courts in such cases. [Omitted by Law Reforms Ordinance, XII

Of 1972].

480. Procedure in certain cases of contempt: (1) When any such offence 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 1* * *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.

2* * * * *

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

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

(2) If the offence is under Section 228 of the Pakistan Penal, 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.

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 within Sections

480 and 482: When the 3[Provincial Government] so directs, any Registrar or any Sub- Registrar

appointed under the 4[Registration Act, 1908] shall be deemed to be a Civil Court within the

meaning of Sections 480 and 482.

1 The words “whter he is a European British subject or note” rep. by the Criminal Law Amendement Act, 1923 (12 of 1923), s.29. 2 Sub-section (2) as amended by Act 12 of 1923, omitted by Act 2 of 1950, Sch. 3 Subs. by A.O., 1937, for “L.G”. 4 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “Indian Registration Act, 1877”.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, supra.

157

484. Discharge of offender on submission of apology : When any Court has under Section 480 1[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 of 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 to 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 he 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 2[High Court], shall be deemed guilty of a contempt;

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

Section 480 or Section 485 may; not withstanding 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 reverse the sentence

appealed against .

(3) 3 * * * * * *

An appeal from such conviction by 4[a] Court of Small Causes shall lie to the Court of Session for

the session 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 be 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 causes may be made to the District Judge 5* * *.

1 Ins. By the Repealing and Amending Act, 1914 (10 of 1914), s.2 and Sch. I. 2 Subs. by the Central Laws (Statulte Reform ) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch., for “Court established by Roya Charter” (with

effect from the 14th October, 1955). 3 The words “An appeal from such conviction by a Court of small Causes in a presidency-town shall lie to the High Court, and “omitted by A.O,

1949, Sch. 4 Subs. ibid. for “any other”. 5 Thw words and commas “or, in the presidency-towns, to the High Court “ rep. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of

1951), s. 3 and Sch. II.

158

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

committed before themselves: (1) Except as provided1 in Sections 1[476], 2*480 and 485 no

Judge of .a Criminal Court or Magistrate, other than a Judge of a High Court, 3* * * shall try

any person for any offence referred to in Section 195, when such offence is committed before

himself or in contempt4 of his authority, or is brought under his notice, as such Judge or Magistrate

in the course of a judicial proceeding.

5* * * * *

6[CHAPTER XXXVI Maintenance of Wives and Children. [SECTIONS 488 TO 490]:

[Omitted by Federal Laws (Revision and Declaration) Ordinance, 1981( XXVII of 1981).]

CHAPTER XXXVII

DIRECTIONS OF THE NATURE OF A HABEAS CORPUS

491. Power to issue directions of the nature of a habeas carpus : (1) 7[Any High Court] may,

whenever it thinks fit, direct--

(a) that a person within the limits of its 8[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 situated within such limits be brought before the

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 9* * * for trial or to be examined touching any matter pending before

such Courtmartial or Commissioners respectively ;

(e) that a prisoner within such limits be removed from one custody to another for the

purpose of trial; and

1 Ins. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, supra. 2 The figures “477” rep. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 130. 3 The words “and the Recorder of Rangoon” rep. by the Lower Burma Courts Act, 1900 (6 of 1900). 4 As to trials for contempt of authority of a Criminal Court or Magistrate in Baluchistan, see the British Baluchistan Criminal Justice Regulation, 1896 (8 of 1896), Sch., Art. 16. 5 Sub-section (2) omitted by the Law Reforms Ordinance, 1972 (12 of 1972) s.2 and Sch.

For enforcement of this amendement in the Provincies, see para 2 of footnote 3 on p.40, supra. 6 This chapter containing section 488-490 have been amended previously by various enactments. 7 Subs. by the Criminal Law Amendement Act, 1923 (12 of 1923), s. 30, for “Any of the High Courts of a Judicature at Fort William, Madras and

Bombay”. 8 Subs. ibid., for “ordinary original civil jurisdiction”. 9 The words “acting under the uahtority of any commission from the G.G in C.” rep. by A.O., 1937.

159

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

Cepi Corpus to a writ of attachment. 1[(1A). the High Court , may be general or special order published in the official gazette, direct

that all or any of its powers speciifed in clauses (a) and (b) of sun-section (1) shall, subject to such

conditions, if any as may be specified in the order be exerciseable also by—

(a) a Session Judge; or

(b) an Additional Sessions Judge, Within the territorial limits of a Session Division. ]

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

this section.

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

preventive detention.]

4[491-A. Powers of High Court outside the limits of appellate jurisdiction;][Omitted by the

Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (If of 1950), Schedule.]

___________

PART IX

SUPPLEMENTARY PROVISIONS

CHAPTER XXXVIII

OF THE PUBLIC PROSECUTOR

492. Power to appoint Public Prosecutors: (1) The 5* * 6[Provincial Government], may appoint,

generally, or in any case, or for; any. specified class of cases, in any local area, ne or more officers

to be called Public Prosecutors.

(2) 7* * Officer-in-charge of prosecution in the district 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 8[such rank as the 5[Provincial Government] may prescribe in this

behalf] to be Public Prosecutor for the purpose of 9[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

1 Ins. by Ord. 8 of 02, s.2 2 Subs. by the Criminal La w Amendement Act, 1923 (12 of 1923), s.30 for “Each of the said High Courts”. 3 Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch., for sub-section (3), which has

previously been amended by various enactments. 4 S. 491A was ins. by Act 12 of 1923, s.31, and subsequently amended by A.O., 1937. 5 The words “G.G in C, or the “ rep. by A.O., 1937. 6 Subs. ibid., for “L.G.”. 7 The word “C.G. in C. or the” rep. by A.O., 1937. 8 Subs. ibid., for “such case”. 9 Subs. ibid., for “such case”.

160

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 1* * *may, with the

consent of the Court, 2* * * 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 3[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 rank to be prescribed by the 4[Provincial Government] in this behalf 5* * * but no person,

other than the Advocate-General, Standing Counsel, Government Solicitor, Public Prosecutor or

other officer generally or specialty 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.

___________

1 The words “appointed by the G.G in C. or the L.G.” rep. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.134. 2 The words and comma “in cases tried by jury before the return of the verdict, and in other cases” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, supra. 3 Ins. by Act, 18 of 1923, s.134. 4 Subs. by A.O., 1937., for “L.G.”. 5 The words “with the previous sanction of the G.G in C.” rep. by the Devolution Act, 1920 (38 of 1920) s.2 and Sch.I.

161

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 appear or is brought, before a Court, and is prepared at any time 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 or 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:

1[Provided, further that' nothing-in this section shall be deemed to affect the provisions of Section

107, sub-section (4), or Section 117, sub-section (3).]

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

any non-bailable 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 appear reasonable grounds for believing that he has been guilty of 2[an offence

punishable with death or 3[imprisonment for life or imprisonment for ten years]]:

4[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 [ : ]5

6[Provided further that the Court shall, except where it is of the opinion that the delay I nthe trial

of the accused has been occasioned by an act or omission of the accused or any other person acting

on his behalf, 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 or in case of a woman exceeding six

months 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 tow years and in case of woman exceeding one year

whose tiral for such offence has not conclude.

Provided further that the provisions of the foregoin provisio shall not apply to a previously

convicted offender for an offence punishable with death of imprisonment for life or to a person

who. In the opinion of the court, is a hardened, desperate of dangerous criminal or is accused of

an act of terrorism punishable with death or imprisonment for life. ]

1 Proviso ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 135. 2 Subs. ibid., s. 136 for “the offence of which he is accused”. 3 Subs. by the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch., for “transporation for life”. 4 Proviso and sub-sections (3) and (4) ins. by Act 18 of 1923, s. 135. 5 Subs. by Act 25 of 1974, s.2 and Sch., for full-stop 6 Proviso added ibid.

162

(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 not reasonable: grounds, for believing that the accused has committed 1[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.

2[(3) An officer of a Court is releasing any person on bail under sub-section, (1) or subsection (2)

shall record in writing his or its reasons for so doing.

(4) If, at any time after the conclusion at 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.

3[(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.

498. Power to direct admission to bah or reduction of bail: The amount of every bond executed

under this Chapter shad be fixed with due regard to the circumstances of the, case, and shall, not

be excessive and the High Court or Court of Session may in any case, whether there be. an, appeal

on conviction or riot, direct that any person be admitted to bail, or that the bail required by a police

officer or Magistrate be reduced.

4[498-A. No bail to be granted to a person not in custody, in Court or against whom no case

is registered, etc.: Nothing in Section 497, or Section 498 shall be deemed to require or authorise

a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or

is not present in Court or against whom no case stands registered for the time being and an order

for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective

only in respect of the; case that so stands registered against him and is specified in the order or

direction.

499. Bond of accused and sureties : (1) Before any person is released on bail or released on his

own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks

sufficient shall be executed by such person, and when he is released on bail, by one or more

sufficient sureties conditioned that such person shall attend at the time and place mentioned in the

bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the

case may be.

1 Subs. by Act 18 of 1923, s. 135 for “such offence”. 2 Sub-sections (3) and (4) ins. ibid.) s.135. 3 Subs. by the Code of Criminal Procedure (Amendement Act, 1923 (18 of 1923), s. 136, for the original sub-section (3). 4 Section 498-A ins. by the Code of Criminal Procdure (Amdt.) Act, 1976 (13 of 1976), s.4 (w.e.f 15-4-1976).

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(2) If the case so requires, the bond shall also bind the person released on bail to appear when

called upon at the High Court, Court of Session or other Court to answer the charge.

164

500. Discharge from custody: (1) As soon as the bond has been executed, the person for whose

appearance it has been executed .shall be released; and, when he is in jail, the Court admitting him

to bail shall issue an order of release to the officer incharge of the jail and such officer on receipt

of the order shall release him.

(2) Nothing in this section, Section 496 or Section 497 shall be deemed to require the release of

any person liable to be detained for some matter other than that in respect of which the bond was

executed.

501. power to order sufficient bait when that first taken is insufficient: lf through mistake,

fraud or otherwise, insufficient sureties, have been accepted, or if they afterwards become

insufficient, the Court may issue a warrant of arrest directing that the person released on bail be

brought before it and may order him to find sufficient sureties, and, on his failing so to do, may

commit him to jail.

502. Discharge of sureties : (1) All or any sureties for the attendance and appearance of a person

released on bail may at and time apply to a Magistrate to discharge the bond, either wholly or so

far as relates to the applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that

the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the

Magistrate shall direct the, bond to be discharged either wholly or so far as relates to the applicants,

and shall call upon such person to find other sufficient sureties, and if he falls to do so, may commit

him to custody.

CHAPTER XL

OF COMMISSIONS FOR THE EXAMINATION OF WITNESSES

503. When attendance of witness may be dispensed with : (1) Whenever, in the course of an

inquiry, a trial or any other proceeding under this Code, it appears 1* * *to a Court of Session or

the High Court that the examination of a witness is necessary for the ends of justice, and that the

attendance of such witness cannot be procured without an amount of delay, expense or

inconvenience which under the circumstances of the case, would be unreasonable, such Court may

dispense with such attendance and may issue a commission to any Magistrate of the First Class,

within the local limits of whose

jurisdiction, such witness resides, to take the evidence of such witness.

2* * * * *

1 The words “a Presidency Magistrate” omitted by A.O., 1949, Sch. 2 Sub-section (2) omitted by the Federal Laws (Revision and Declration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch., which has

previously been amended by various enactments.

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1[(2-A) When the witness resides- in an area in or in relation to which the President has Extra-

Provincial Jurisdiction Within the meaning of the Extra-Provincial Jurisdiction Order,

1949(G.G.O. No- 5 of 1949 ), the commission may be issued to such Court or officer in the area

as may be recognised by the President by notification in the official Gazette as a Court or officer

to which or to whom commissions may be issued under this sub-section and within the local limits

of whose jurisdiction the witness resides.

(2-B) When the witness resides in the United Kingdom or any other country of the Commonwealth 2* * *or in the Union of Burma 3[or any other country in which reciprocal arrangement, in this

behalf exists], the commission may be issued to such Court or Judge having authority in this behalf

in that country as may be specified by the 4[Federal

Government] by 5notification in the Official Gazette.

(3) The Magistrate or officer to whom the commission is issued, 6* * * 7* * *shall proceed to

the place where the witness is or shall summon the witness before him, and shall take down his

evidence in the same manner, and may for this purpose exercise the same powers, as in trials of 8[cases] under this code. 9[(4) Where the commission is issued to such officer as is mentioned in sub-section (2-A), he may,

in lieu of proceeding in the manner provided in Sub-section (3), delegate his powers and duties

under the commission to any officer subordinate to him whose powers are not less than those of a

Magistrate of the First Class in Pakistan.

504. Commission in case of witness being within Presidency- town [Omitted byA,O.,1949, Sch.].

505. Parties may examine witnesses : 10[(1) The parties to any proceeding under this Code in

which a commission is issued may, respectively forward any interrogatories in writing which the

Magistrate or Court directing the commission may think relevant to the issue and when the

commissions is directed to a Magistrate or officer mentioned in Section 503, such Magistrate or

the officer to Whom the duty executing such commission has been delegated shall! examine the

witness upon such interrogations.]

(2) Any such party may appear before such Magistrate or 11[officer] by pleader, or if not in custody,

in person, and may examine, cross-examine and re-examine (as the case may be) the said witness.

1 Subs. by the Federal Laws (Revision and Declaration) Ordinance 1981 (27 of 1981), s.3 and Second Sch., for sub-section (2A), which has been amended by A.O., 1961, Art.2 and F.A.O., 1975, Art. 2 and Table 2 The words “her than Pakistan”omitted by the Law Rerforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For enforcement of this amendement in

the Provinces, see to note 3 on p. 4, supra. 3 Ins. by the Civil and Criminal Procedrue Codes (Amdt.) Ordinance, 1962 (67 of 1962), s.2. 4 Subs. by F.A.O., 1975 , Art. 2 andTable, for “Central Government” 5 For instances of notifications see Gaz of P., 1960, Ext., pp 461-462, ibid. 1963, Pt.I-p.20. 6 The words “or if he is the District Magistrate, he, “ omitted by Ordinance 27 of 1981, s.3 and Second Sch. 7 The words and commas “or such Magistrate, of the First class as the appoints in this behalf,”omitted by Odinance, 12 of 1972, s.2 and Sch. 8 Subs ibid., for “warrant cases”. 9 Sub-section (4) as amended by Act 14 of 1950., s.2, for the original sub-sectin (4) and Ordinance 21 of 1960, s.3 and 2nd Sch. Has been subs. by

Ordinance 27 of 1981, s.3 and Second Sch., to read as above. 10 Sub-section (4) as amended by Act 14 of 1950., s.2 for the original sub-section (4) and Ordinance 21 of 1960, s.3 and 2nd Sch., has been subs. by Ordinance 27 of 1981, s.3 and Second Sch., to read as above. 11 The original word “Officer” has been succively amended by act 27 of 1943 and Act 174 of 1950, to read as above.

166

506. Power of 1* *Magistrate to apply for issue of commission : Whenever, in the course of an

inquiry or a trial or any other proceeding under this Code before any Magistrate it appears that a

commission ought to the issuer for the examination of a witness whose evidence is necessary for

the ends of justice, .and that the attendance of such witness cannot be procured without an amount

of delay, expense or inconvenience which under the circumstances of the case, would be

unreasonable, 8[such Magistrate], shall apply to the Sessions Judge shall apply to the District

Magistrate]stating the reasons for the application and the 9[Sessions Judge] may either issue a

commission in the manner hereinbefore provided or reject the application.

507. Return of commission: (1) After any commission issued under Section 503, or Section 506

has been duly executed, 2* * *it shall be returned, together with the deposition of the witness

examined there under, to the Court out of which it issued; and the commission; the return thereto

and the deposition shall be open at alt, reasonable times, to inspection of the parties, and may,

subject to all just exceptions, be read in evidence in the case by either party, and shall form part of

the record.

(2) Any deposition so taken, if it satisfies the conditions prescribed by Article 47 of Qanuni-

Shahadat, 1984, may also be received in evidence at any subsequent stage of the case before

another Court.

508. Adjournment of inquiry or trial : In every case in which a commission is issued under

Section-503 or Section 506, the inquiry, trial or other proceeding may be adjourned for a specified

time reasonable sufficient for the execution and return of the commission.

3[508-A. Application of this Chapter to commissions issued in Burma : The provisions of sub-

section (3) of Section 503,4* * * and so much of Sections 505 and 507 as relate to the execution

of commission and its return by the Magistrate or officer to whom the commission is directed shall

apply in respect of commissions issued 5[by any Court or Judge having authority in this behalf in

the United Kingdom or in any other country of the Commonwealth 6* * * or in the Union of

Burma 7[or any other country in which reciprocal arrangement in this behalf exists under the law

in force in that country] relating to commissions for the examination of witnesses, as they apply to

commissions issued under Section 503 or Section 506.

1 The words “Provincial Subordinate” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. 2 The words “or, in a cse to which clause (b) of sub-section (4) of section 503 applied, has been again received by the Officer by whom it was forwarded to the State Court” which were in. by Act 27 of 1943 have been omitted b Act 14 of 1950, s.4. 3 Section 508A ins. by the Codeo f Criminal Procedure (Amendement) Act 1940 (35 of 1940), s.3 4 The words, parentheses and figures “sub-section (1) and (1A) of section 504” rep. by the Federal Laws (Revsion and Declaration) act, 1951 (26 of 1951), s.3 and Sch. II. 5 Subs. by the code of Criminal Procedure (Amendement) Act, 1950 (14 of 1950), s.5, for “by a Magistrate or Court in Burma under the law in

force in Burma. 6 The words “other than Pakistan” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, supra. 7 Ins. by the civil and Criminal Procedure Codes (Amendement) Ordinance, 1962 (67 of 1962) s.2 8Subs. by Ord. 12 of 1972, S.2 and Sch. 9Omitted by Ord. 37 of 2001, S.69(w.e.f 14-8-2001) .

167

CHAPTER XLI

SPECIAL RULES OF EVIDENCE

509. Deposition of medical witness : (1) The deposition of a Civil Surgeon or other medical

witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission

under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this

Code, although the deponent is not called as a witness

(2) Power to summon medical witness : The Court may, if it thinks fit, summon and examine

such deponent as to the subject matter of his deposition.

1[510. Report of Chemical Examiner, Serologist: Any document purporting to be a report, under

the hand of any Chemical Examiner or Assistant Chemical Examiner to Government 2[or of the

Chief Chemist of the Pakistan Security Printing Corporation Limited] or any Serologist, fingerprint

expert or fire-arm expert appointed by Government upon any matter or thing duty submitted to

him for examination or analysts and report in the course of any proceeding under this Code, may,

without calling him as a witness, be used as Nevidence in any inquiry, trial or other proceeding

under this Code:

Provided that the Court may, 3[if it considers necessary in the interest of justice, summon and

examine the person by whom such report has been made.

511. Previous conviction or acquittal how proved : In any inquiry, trial or other proceeding

wider this Code, a previous conviction or acquittal may be proved, in addition to any other mode

provided by any law for the time being in force- (a) by an extract certified under the hand of the

officer having the custody of the records of the Court in which such conviction or acquittal was

had to be a copy of the sentence or the order. (b) In case of a conviction, either by a certificate

signed by the officer incharge of the jail in which the punishment or any part thereof was inflicted,

or by production of the warrant of commitment under which the punishment was suffered, together

with in each of such cases, evidence as to the identity of the accused person with the person so

convicted or acquitted.

512. Record of evidence in absence of accused: (1) if it is proved that an accused person has

absconded, and that there is no immediate prospect of arresting him, the Court competent to try of 4[send for trial to the Court of Session or High Court] such person for the offence complained of

may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution and

record their depositions. Any such deposition may, on the arrest of such person, be given in

evidence against him on the inquiry into, or trial for the offence with which he is charged if the

deponent is dead or incapable of, giving evidence or his attendance cannot be procured without an

amount of delay, expanse or inconvenience which, under the circumstance's of the case, would be

unreasonable,

1 Subs. by Ordinance 12 of 1972, s.2 and Sch., for “section 510”. 2 Ins. by the Code of Criminal Procedure (Amdt.) Ordinance, 1983 (5 of 1983), s.2. 3 Subs by the Law Reforms (Amdt.) Act, 1976 (21 of 1976), s.2 and Sch, for “and shall if so, requested by any party to such inquiry, trial or

“proceeding,” (w.e.f 18-4-76). 4 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “commit for trail”.

For enforcement of this amendement in Provinces, see, para 2 of footnote 3 on p. 40, supra.

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(2) Record of evidence when offender unknown : if it appears that an offence punishable with

death or 1[imprisonment for life] has been committed by some person or persons unknown, the

High Court may direct that any Magistrate of the First Class shall hold an inquiry and examine any

witnesses who can give evidence concerning the offence. Any depositions so taken may. be given

in evidence against any person who is subsequently accused of the offence, if the deponent is dead

or -incapable of giving evidence or beyond the limits of 2[Pakistan].

CHAPTER XLII

PROVISIONS AS TO BONDS

513. Deposit instead of recognizance : When any person is required by any Court or officer to

execute a bond, with or without sureties, such Court or officer may, except in the case of a bond

for good behaviour, permit him to deposit a sum of money or Government promissory-notes to

such amount as the Court or officer may fix in lieu of executing such bond.

3514. Procedure on forfeiture of bond : (1) Whenever it is proved to the satisfaction- of the Court

by which a bond under this Code has been taken, or of the Court of a 4* * * Magistrate of the

First Class,

or, when the bond is for appearance before a Court, to the satisfaction of such Court,

that such bond has been forfeited, the Court shall record the grounds of such proof, and may call

upon any person bound by such bond to pay the penalty thereof, or to show cause why it should

not be paid.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover

the same by issuing a warrant for the attachment and, sale of the movable property belonging to

such person or his estate if he be dead.

(3) Such warrant may be executed within the local limits of the jurisdiction of the Court, which

issued it; and it shall authorise the 5[attachment], and sale of any movable property belonging to

such person without such limits, when endorsed by the 7[District Officer Revenue] 6* * *within

the local limits of whose jurisdiction such property is found.

(4) If such penalty is not paid and cannot be recovered by such attachment and sale, the person so

bound shall be liable, by order of the Court which issued the, Warrant, to imprisonment in the civil

jail for a term which may extend to six months.

1 Subs. by the Criminal Procedure (Amdt.) Act, 1974 (25 of 1974), s.2 and Sch., for “transporation” (w.e.f 134.1972). 2 Subs. by the Central Laws (Senate Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation”, which has been subs. by A.O., 1949, Arts. 3 (2) and 4, for “British India”. 3 S. applies to all cases requiring security for good behavious under the Punjab Frontier Crossing Regulation, 1873 (7 of 1873), s.6 the Punjab

Frontier Crossing Regulation, 1873 (7 of 1873), s.6 4 The words “Presidency Magistrate or” omitted by A.O., 1949, Sch. 5 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 139, for “distress”. 6 The words “or Chief Presidency magistrate” omitted by A.O., 1949. Sch. 7Subs. by Ord. 37 of 2001, s.70 (w.e.f 14-08-2001)

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(5) The Court may; at its discretion remit any portion of the penalty mentioned and enforce

payment in part only.

(6) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged, from

all liability in respect of the bond. 1* * *

2[(7) When any person who has furnished security under section 106 or section 118 3* * *is

convicted of an offence the commission of which constitutes a breach of the condition of is bond,

or of a bond executed in lieu of his bond under Section 5l4-B, a certified copy of the judgment of

the Court by which he was convicted of such offence may be used as evidence in proceedings

under this section against his surety or sureties, and, if such certified copy is so used, the Court

shall presume that such offence was committed by him unless the contrary is proved.

.

4[514-A. Procedure in case of insolvency or death of surety or when a bond is forfeited : When

any surety to a bond under this Code become insolvent or dies, or when any bond is forfeited under

the provisions of Section 514 the Court by whose order such bond was taken or 5* * *Magistrate

of the First Class, may order the person from whom such security was demanded to furnish fresh

security in accordance with the directions of the original order, and, it such security, is not

furnished, such Court or Magistrate may proceed as if there had been a default in complying with

such original order.

514-B. Pond required from a minor: When the person required by any Court or Officer to

execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond executed by a

surety or sureties only.

6[515. Appeal from and revision of, orders under Section 514 : All orders passed by any

Magistrate under Section 514 shall be appealable to the Sessions Judge or, if no appeal is

preferred against any such order, may be revised by the Sessions Judge].

516. Power to direct levy of amount due on certain recognizance : The High-Court or Court

of Session may direct any Magistrate to levy the amount due on a bond to appear and attend at

such High Court or Court of Session.

___

1 The words “but the party who gave the bond may be required to find a new surety” rep. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 139. 2 Sub-section (7) ins. ibid. 3 The words and figure “or section 562” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see , para 2 of footnote 3 on p.40, supra. 4 Sections 514A and 514B ins. ibid., s. 140. 5 The words “Presidency magistrate or” omitted by A.O., 1949, Sch. 6Subs. by Ord. 37 of 2001, s.71 (w.e.f 14-08-2001)

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CHAPTER XLIII

OF THE DISPOSAL OF PROPERTY

1[516-A. Order for custody and disposal of property pending trial in certain cases : When any

property regarding which any offence appears to have been committed or which appears to have

been used for the commission of any offence, is producer before any Criminal Court during any

inquiry or trial, the Court may' make such order as it thinks fit for the proper custody of such

property pending the conclusion of the inquiry or trial, and, If the property is subject to speedy or

natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or

otherwise deposed of.[ :]2 3[Provided that, if the property consists of explosives substance, the Court shall not order It to be

sold or handed over to any person other than a Government Department or office dealing with, or

to an authorised dealer in such substances[:]6

Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any ;

other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of

1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979

(P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on. an

application or of its own motion and under its supervision and control, obtain and prepare such

number of samples of the property as it may deem fit for safe custody and production before it or

any other Court and cause destruction of the remaining portion of the property under a certificate

issued by it in that Behalf:

Provided also that such samples shall be deemed to be Whole of the property in an inquiry or

proceeding in relation to such offence before any authority or Court.

517. Order for disposal of property regarding which offence committed : (1) When an inquiry

or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the

disposal 4[by destruction, confiscation, or delivery to any person claiming to be entitled to

possession thereof or otherwise] of any property or document produced before it or in its custody

or regarding whiter any offence appear to have been committed or which has been used for the

commission of any offence.

(2) When a High Court or Court of Sessions makes such order and cannot through its own officers

conveniently deliver the property to the person entitled thereto, such Court may direct that the

order be carried into effect by the 7[District Officer (Revenue)]. 5[(3) When an, order Is made under this section such order shall not. except where the property is

livestock or subject to speedy and natural decay, and save as provided by subsection (4), be carried

out for one month, or, when an appeal is presented, until such appeal has been disposed of.

1 Section 516A ins. by act 18 of 1923, s. 141. 2 Subs. by the Criminal Laws (Amdt.) Ordinance, 1981 (33 of 1981), s.3, for “full stop”. 3 Proviso added ibid. 4 Ins. by the Code of Criminal procedure (Amdt.) Act, 1923 (18 of 1923), s. 142. 5 Sub-section (3) and (4) ins. ibid. 6Subs. and omitted by Ord. 37 of 2001, S. 73 (w.e.f 14-8-2001)

171

(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property

under the provisions of sub-section (1) to any person claiming to be entitled to the possession

thereof, on his executing a bond with or without sureties to the satisfaction of the Court; engaging

to restore such property to the Court if the order made under this section is modified or set aside

on appeal.]

Explanation : In this section the term "property" includes in the case of property regarding which

an offence appear to have been committed, not only such property as has been originally in the

possession or under the control of any party, but also any property into or for which the same may

have been converted or exchanged, and anything acquired by such conversion or exchange,

whether immediately or otherwise.

518. Order may take form of reference in lieu of itself passing an order under Section 517:

The Court may direct the property to be delivered to a Magistrate of the First Class who shall in

such cases deal with if as if it had been seized by the police and the Seizure had been reported to

him in the manner hereinafter mentioned.

519. Payment to innocent purchaser or money found on accused : When any person is

convicted of any offence which includes, or amounts to, theft or receiving stolen property, and it

is proved that any other person has bought the stolen property from him without knowing, or

having reason to believe, that the same was stolen, and that any money has on his arrest been taken

out of the possession of the convicted person, the Court may, on the application of such purchaser

and on the restitution of the stolen property to the person entitled to the possession thereof order

that out of such money a sum not exceeding the price paid by such purchaser be delivered to him.

520. Stay of Order under Section 517,518 or 519: Any Court of appeal, confirmation, reference

or revision may direct any order under Section 517, Section 518, or Section 519, passed by a Court

subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter

or annul such order and make any further orders that may be just.

521. Destruction of libellous and other matter: (1) On a convict under the Pakistan Penal Code,

Section 292, Section 293 Section 501 or Section 502 the Court may order the destruction of all the

copies of that thing in respect of which the conviction was had, and which are in the custody of

the Court or remain En the possession or power of the person convicted,

(2) The Court may, in like manner on a conviction under Pakistan Penal Code, Section 272, Section

273, Section 274 or Section 275, order the food, drink, drug or medical preparation in respect of

which the conviction was had to be destroyed.

522. Power to restore possession of immovable property : (1) When ever a person is onvicted

of an offence 1[of cheating or forgery or of an offence] attended by criminal force 2[or show of

force or by criminal intimidation and it appears to the Court that by such cheating forgery, force

of Show of force of criminal intimidation any person has been dispossessed of any immovable,

property the Court may, if it thinks fit when convicting such person or at any time within one

1 Ins. by the Code of Criminal Procedure (Amdt.) Ordinance, 1984 (17 of 184), s.2. 2 Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 143

172

month from the date of the conviction order 1[the person dispossessed] to be restored to the

possession of the same,2[whether such property is in the possession or under the control of [the

person convicted or of any other person to Whom it may have been transferred for any

consideration or Otherwise.]

(2) No such order shall prejudice any right or interest to or in such immovable property which any

person may be able to establish in a civil suit.

3[(3) An order under this section may be made by any Court of appeal, confirmation, reference or

revision.]

4[522-A. Power to restore possession of movable property: (1) Whenever a person convicted of

an offence of criminal misappropriation, of property or criminal breach of trust or cheating or

forgery and it appears to the Court that, by such misappropriation, breach of trust, cheating or

forgery, any person has been dispossessed or otherwise deprived of any movable property, the

Court may, if thinks fit, when convicting such person of at any time within the month from the

date of the convection, order the person dispossessed or deprived of the property, where such

property can be identified, to be restored to the possession of such property, whether such property

is in the possession or under the control of the person convicted or of any other person to whom it

may have been transferred for any consideration or otherwise.

(2) Where the property referred to in sub-section (1) cannot be identified or has been disposed of.

by the accused so that it may not be identified, the Court may order such compensation to be paid

to the person dispossessed or deprived of such property as it may determine in the circumstances

of the case.

(3) No order referred to in sub-section (1) or sub-section (2) shall prejudice any right or interest in

any movable property which any person may be able to establish in a civil suit.

523. Procedure by police upon seizure of property taken under Section 51 or stolen: (1) The

seizure by any police officer of property taken under Section 51, or alleged or suspected to have

been stolen, or found under circumstances which create suspicion of the commission of any

offence shall be forthwith reported to a Magistrate who shall make such order as he thinks fit

respecting the disposal of such property or the delivery of such property to the person entitled to

the possession thereof, or if such person cannot be ascertained, respecting the custody and

production of such property. .

5[(2) Procedure where owner of property seized unknown : If the person so entitled is known, the

Magistrate may order the property to be delivered to him on such conditions (if any) as the

Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such

case, issue a proclamation specifying the articles of which such property consists, and requiring

1 Subs. ibidi., for “such person”. 2 Added by Ordinance 17 of 1984, s.2. 3 Sub-section (3) ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 143. 4 Section 522A ins. by the code of Criminal Procedure (Amdt.) Ordinance, 1984 (17 of 1984), s.3. 5 Amended in its application to the Pronvice of Punjab-see West Punjab Ordinance 3 of 1948.

173

any person who may have a claim thereto, to appear before him and establish his claim within six

months from the date of such proclamation.

524. Procedure where no claimant appears within six months: (1) If no person within such

period, establishes his claim-to-such property; and if the person in whose possession such property

was found, is unable to show that it was legally acquired by him, such property shall be at the

disposal of the 1[Provincial Government] and may be sold under the orders of Magistrate of the 2*

* First Class empowered by the 3[Provincial Government] in this behalf.

(2) In the case of every order passed under this section, an appeal shall lie to the Court to which

appeals against sentences of the Court passing such order would lie.

525. Power to sell perishable property : If the person entitled to the possession of such property

is unknown or absent and the property is subject to speedy and natural decay, 4[or if the Magistrate

to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner,5[or

that the value of such property is less than ten rupees, the Magistrate may at any time direct it to

be sold; and the provisions of Sections 523 and 524 shall as nearly as may be practicable, apply to

the net proceeds of such sale.

CHAPTER XLIV

OF THE TRANSFER OF CRIMINAL CASES

526. High Court may transfer case or itself try it: (1) Whenever it is made to appear to the High

Court—

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate

thereto, or

(b) that Some question of law of unusual difficulty is likely to arise, or

(c) that a view of. the, place in or near which any offence has been committed may be

required for the satisfactory inquiry into a trial of the same, or

(d) that an order under this section will tend to the general convenience of the parties or

witnesses, or

(e) that such an order is expedient for the ends of justice, or is required by any provision of

this Code; it may order

(i) that any offence be inquired into or tried by any Court not empowered under

Sections 177 to 184 (both inclusive) but in other respects competent to inquire into

or try such offence;

1 Subs. by A.O., 1937, for “Govt.”. 2 The words “Presidency Magistrate” omitted by A.O., 1949, Sch. 3 Subs. by A.O., 1937, for “L.G.”. 4 Subs. by Act. 18 of 1923, s. 144, for “or the Magistrate” 5 Ins. ibid.

174

(ii) that any particular 1* case or appeal; or class of 2*cases or appeals, be

transferred from a Criminal Court subordinate to its authority to any other such

Criminal Court of equal or superior jurisdiction;

(iii) that any particular case or appeal be transferred to and tried before itself; or

(iv) that an accused person be 3[sent] for trial to itself or to a Court of Session.

(2) When the High Court withdraws for trial before itself any case from any Court 4* * *, it shall, 5* * *observe in such trial the same procedure which that Court would have observed if the case

had not been so withdrawn.

(3) The High Court may act either on the report of the Lower Court, or on the application of a party

interested, or on its own initiative.

(4) Every application for the exercise of the power conferred by this section shall be made by

motion, which shall except when the applicant is the Advocate-General, be supported by affidavit

or affirmation.

(5) When an accused person makes an application, under this section, the High Court may direct

him to execute a bond, with or without sureties, conditioned that he will, if 6[so ordered], pay 7[any

amount which the High Court 8[may under this Section award by way of

Compensation] to the person Opposing the application.]

4[(6) Notice to Public Prosecutor of application under this section .Every accused person making

any such application shall give to the Public Prosecutor notice in writing of the application,

together with a copy of grounds on which it is made, and no order shall be made on the merits of

the application unless at least twenty-four hours have elapsed between the giving of such notice

and the hearing of the application.

9[(6-A) Where any application for the exercise of the power conferred by this section is dismissed,

the High Court may if it is of opinion that the application was frivolous or vexatious, order the

applicant to pay by way of 10[compensation] to any person who has opposed the application 11[such

sum not exceeding 12[five hundred rupees as it may consider proper in the circumstances of the

case.]]

1 The word “criminal” repl. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 145. 2 Thw word “such” rep. ibid. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “committed”. For enforcement of this amendemetn in the Provinces, see para 2 of footnote 3 on p. 40, supra. 4 The words “other than the Court of a Presidency Magistrate” omitted by A.O., 1949, Sch. 5 The words figure and comma, “except as provided in section 267,” omitted by Ordinance 12 of 1972, s.2. and Sch. 6 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 145, for “convicted”. 7 Subs. ibid., for “the costs of the Prosecutor”. 8 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1932 (21 of 1932), s.2 for “has power under this section to award by way of costs”. 9 Sub-section (6A) ins. by Act 18 of 1923, s. 145. 10 Subs. by Act 21 of 1932, s.2 for “costs”. 11 Subs. ibid., for “any expenses reasonably incurred by such person in consequence of the application”. 12 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For “two hundred and fifty rupees”.

For enforcement of this amendement in the Provinces, see, para 2 of footnote 2 on p. 40, supra.

175

(7) Nothing in this section shall be deemed to affect any order made under Section197.

1[(8) Adjournment on application under this section : If in any inquiry under Chapter VIII or any

trial, the fact that any party intimates to the Court at any stage that he intends to make an application

under this section shall not require the Court to adjourn the case, but the Court shall not pronounce

its final judgment or order until the application has been finally disposed of by the High Court and,

if the application is accepted by the High Court, the proceedings taken by the Court subsequent to

the intimation made to it shall, at the option of the accused be held afresh.]

2[Explanation.—Nothing contained in sub-section (8) or sub-section (9) restricts the powers of a

Court under section 344.

(10) If, before the argument (if any), for the admission of an appeal begins, or, in the case of an

appeal admitted, before the argument for the appellant begins, any party interested intimates to the

Court that he intends to make an application under this section, the Court, shall, upon such party

executing, if so required, a bond without sureties of an amount not exceeding 3[five hundred rupees

that he will make such application within a reasonable time to be fixed by the Court, postpone the

appeal of such a period as will afford sufficient time for application to be made and an order to be

obtained thereon.

4[526-A. High Court to transfer for trial to itself in certain cases : [Omitted by Code of

Criminal Procedure (Amdt.) Ordinance, XX of 1969. S. 2].

527. Power of Provincial Government to transfer cases and appeals : (1) The 5[Provincial

Government] may, by notification in the 6[Official Gazette], direct the transfer of any particular 7*case or appeal from one High Court .to another High Court or from any Criminal Court

subordinate to one High Court, to any other Criminal Court of equal or superior jurisdiction

subordinate to another High Court, whenever 8[it] appears to it that such transfer wit! promote the

ends of justice, or tend to the general convenience of parties or witnesses :

9[Provided that no case or appeal shall be transferred to a High Court or other Court in

another Province, without the consent of the Provincial Government of that Province.]

(2) The Court to which such case or appeal is transferred shall deal with the same as if it had been

originally instituted in, or presented to/such Court.

1 Subs. ibid., for sub-sections (8) and (9) which were previously amended by Act 21 of 1932 s.2 and 18 of 1923, s.145 for the original sub-

section. 2 Explanation and sub-section (10) ins. by the Code of Criminal Procedure (Amdt.) Act, 1932 (21 of 1932), s.2. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For “two hundred rupees.”

For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 4 This section has previously been amended by various enactments. 5 Subs. by A.O., 1937, for “G.G, in C”. 6 Subs. ibid., for “Gazetter of India”. 7 The word “criminal” repl. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 146. 8 Subs. by A.O., 1937, for “him”. 9 Proviso ins., ibid.

176

528: Sessions Judge may withdraw cases from Assistant Sessions Judge : 1[(1) Any Sessions

Judge may withdraw any case from, or re-call any ease which he has made over to, any Assistant

Sessions Judge subordinate to him.

2[(1-A) At any time before the trial of the case or the hearing of the appeal has commenced before

the Additional Sessions Judge, any Sessions Judge may re-call any case or appeal Which he ha-s

made over to any Additional Sessions Judge.

(1-B) Where a Sessions Judge withdraws or re-calls a case under sub-section (1) or recalls a case

or appeal under sub-section (1-A), he may either try the case in his own Court or hear the appeal

himself, or make it over in accordance with the provisions of the Code to another Court for trial

or hearing, as the case may be.

3[(1-C) Any Sessions Judge may withdraw any case from, or re-call any case which he has made

over to any Magistrate subordinate to him, and may refer it for inquiry or trial to. any, other such

Magistrate competent to inquire into or try the same.

4* * * * *

5[(4) Any Magistrate may re-call any case made over by him under Section 192, Subsection

(2), to any other Magistrate and may inquire into or try such case himself.

6[(5) A Magistrate making an order under this 7[preceding sub-section shall record in writing his

reasons for making the same.

8* * * * * 9[528-A. Powers of District Magistrate for transfer of cases etc. : Omitted by the Ordinance,

XXXVII of 2001, dt. 13-8-2001.]

CHAPTER XLIV-A SUPPLEMENTARY PROVISIONS-RELATING TO EUROPEAN AND

PAKISTAN BRITISH SUBJECTS AND OTHERS [Omitted by the Criminal Law (Extinction of

Discriminatory Privileges) Act, 1949 (II of 1950), Schedule].

__________________

1 Sub-sections (1) ins. by act 18 of 1923, s. 147. 2 Sub-Section (1A) and (1B) ins. by the Code of Criminal Proceduer (Amdt.) Act, 1946 (3 of 1946), s.2. 3 Sub-section (1C) ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch. For enforcement of this amendment in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 4 Sub-sections (2) and (3) omitted ibid., which has previously been emended by various enactments. 5 Sub-section(4) ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s.147. 6 Subs. by the Law Reforms (1), (2) and (3) were re-numbered as (2), (3) and (5) respectively, by Act 18 of 1923, s. 137. 7 Subs. by the Law Refroms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “section”.

For enforcement of this amendement in the Provinces, see, para 2 of footnote 2 on p. 40, supra. 8 Sub-section (6) omittec yb A.O., 1949, Sch. 9omitted by Ord. 37 of 2001 S.75 (w.e.f 14-08-2001)

177

1[CHAPTER XLV

OF IRREGULAR PROCEEDINGS

529. Irregularities which do not vitiate proceedings: If any Magistrate not empowered by law

to do any of the following things, namely :---

(a) to issue a search warrant under Section 98;

(b) to order, under Section 155, the police to investigate an offence;

(c) to hold an inquest under Section 176;

(d) to issue process, under Section 186, for the apprehension of a person within the local limits

of his jurisdiction who has committed an offence outside such limits;

(e) to take cognizance of an offence under Section 190. sub-section (1), clause (a) or

clause (6),

(f) to transfer a case under Section 192;

(g) to tender a pardon under Section '337 or Section 338;

(h) to sell property under Section 524 or Section 525; or

(i) to withdraw a case and try it himself under Section 528.

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the

ground of his not being so empowered.

530. Irregularities which vitiate proceedings: If any Magistrate, not being empowered by law in this

behalf, does any of the following things namely:-

(a) attaches and sells property under Section 88;

(b) issues a search-warrant for a letter, parcel or other thing in the Post Office, or a

telegram in the Telegraph Department;

(c) demands security to keep the peace;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace;

(g) makes an order under Section 133, as to a local nuisance;

(h) prohibits, under Section 143, the repetition or continuance of a public nuisance;

(i) issues an order under Section 144;

1 Chapter XLIVA(ss.528A to 528D) was ins. by the Criminal Law Amendement Act, 1923 (12 of 1923), s. 33.

178

(j) makes an order under Chapter XII;

(k) takes cognizance, under Section 190, sub-section (1), clause (c) of an offence;

(l) passes a sentence, under Section 349, on proceedings recorded by another

Magistrate;

(m) calls, under Section 435, for proceedings;

1* * * * *

(o) revises, under Section 515, an order passed under Section 514;

(p) tries an offender;

(q) tries an offender summarily; or

(r) decides an appeal; his proceedings shall be void.

531. Proceedings in wrong place: No finding, sentence or order of any Criminal Court shall be

set aside merely oh the ground that the inquiry, trial or other proceeding in the course of which it

was arrived at or passed, took place in a wrong sessions division, district, sub-division or other

local area unless it appears that such error has4n fact occasioned a failure of justice.

2532. When regular commitments may be validated : [Omitted by Law Reforms Ordinance, XII of

1972].

533. Non-compliance with provisions of Section 164 or 364: (1) If any Court, before which a

confession or other statement of an accused person recorded or purporting to be recorded under

Section 164 or Section 364 is tendered or has been received in evidence, finds that any of the

provisions of either of such sections have, not been complied with by the Magistrate recording the

statement, it shall take evidence that such person duly-made the statement recorded; and

notwithstanding anything contained in the Evidence Act, 1872( I of 1872), Section 91, such

statement shall be admitted if the error has not injured the accused as to his defence on the merits.

(2) The provisions of this section apply to Courts of Appeal, Reference and Revision. 534.

Commission to give information under Section 447: [Omitted by the: Criminal Law (Extinction of

Discriminatory Privileges) Act 1949 (II of 1950), Schedule].

535. Effect of omission to prepare charge: (1) No finding or sentence pronounced or passed shall

be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the

Court of appeal or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal prevision thinks that a failure of justice has been occasioned by an

omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced

from the point immediately after the framing of the charge.

3536. That by inquiry of offence triable with assessors: [Omitted by Law Reforms

1 Clause (n) omitted by the Federal Law (Revision and Delcaration) Ordinance, 1981 (27 of 1981), s. 3 and Second Sch. 2 For enforcement of this amendment in the Provinces, see para 2 of footnote 3 on p. 40, supra. 3 The original s. 534 was subs. by the Criinal Law Amendement Act, 1923 (12 of 1923), s. 34.

179

Ordinance XII of 1972].

180

1[537. Finding or sentence when reversible by reason of error or omission in charge or other

proceedings: Subject to the provisions hereinbefore contained no finding, sentence, order passed

by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal

of revision on account--

(a) of any error, omission or irregularity in the complaint, report by police officer under Section

173 summon, warrant, charge, proclamations, order, judgment, or other proceedings before or

during trial or in any inquiry or other proceedings under this Code, or

(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges,

unless, such error omission or irregularity has in fact occasioned a failure of

justice.

Explanation : In determining whether any omission or irregularity in any proceeding under this

Code has occasioned a failure of justice, the Court shall have regard to the fact whether the

objection could and should have been raised at an earlier stage in the

proceedings.

2* * * * * *

538, Attachment not illegal, person making same not trespasser for defect or want of form

in proceedings: No 3[attachment] made under this Code shall be deemed unlawful, nor shall any

person making the same be deemed a trespasser, on account of any defect or want of form in the

summons, conviction, writ of attachment or other proceedings relating thereto.

___________________

CHAPTER XLVI

MISCELLANEOUS

539. Court and persons before whom affidavits may be sworn: Affidavits and affirmations to

be used before any High Court or any Officer of such Court may be sworn and affirmed before

such Court 4* * *or any Commissioner or other person appointed by such Court for that purpose,

or any Judge, or any Commissioner for taking affidavits in any Court of record in 5[Pakistan] 6* *

*.

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch for section 537, which has previously beena mended by various enactments.

For enforcement of this amendement in the Provinces, see, para 2 of footnote 2 on p. 40, supra. 2 The illustration rep. by the Code of Criminal Procedrue (Amdt.) Act, 1923 (18 of 1923), s. 148. 3 Subs. ibid., s. 149, for “distress”. 4 Thw words “or the [Clerk of the State]” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.,

The words in crotchets were subs. by A.O., 1961, Art 2 and Sch., for “Clerk of the Crown” (w.e.f 23.3.1956).

For enforcement of this amendement in the Provinces, see, para 2 of footnote 2 on p. 40, supra. 5 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch., (with effect from the

14th October, 1955), for “the Provinces and the Capital of the Federation”, which has been subs., by A.O., 1949, Arts

3(2) and 4, for “British India”. 6 Certain words omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and 2nd

Sch.

181

1[539-A. Affidavit in proof of conduct of public servant: (1) When any application is made to

any Court in the course of any inquiry trial or other proceeding under this Code, and allegations

are made therein respecting any public servant, the applicant may give evidence of the facts alleged

in the application by; affidavit, and the Court may, if it thinks fit, order that evidence relating to

such facts be so given-

An affidavit to be used before any Court other than a High Court under the section may be sworn

or affirmed in the manner prescribed in Section 539, or before any Magistrate.

Affidavits under this section shall be confined to, and shall state separately, such facts as the

deponent is able to prove from his own Knowledge and such facts, as he has reasonable grounds

to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such

belief.

(2) The Court may order any scandalous and irrelevant matter in an affidavit to be struck out or

amended.

2[539-B. Local inspection: (1) Any Judge or Magistrate may at any stage of any inquiry, trial or

other proceeding, after due notice to the parties, visit and inspect any place in which an offence is

alleged to have been committed, or any other place which it is in his opinion necessary to view for

the purpose of properly appreciating the evidence, given at such inquiry or trial and shall without

unnecessary delay record a memorandum of any relevant facts, observed at such inspection.

(2) Such memorandum shall form part of the record of the case if the Public Prosecutor,

complainant or accused so desires, a copy of the memorandum shall be furnished to him free of

cost 3[.]

4* * * * * *

540. Power to summon material witness or examine person present: Any Court may, at any

stage of any inquiry, trial or other proceeding under this Code summon any person as a witness,

or examine any person in attendance, though not summoned as a witness, or re-call and re-examine

any person already examined; and the Court shall summon and examine or re-call and re-examine

any such person if his evidence appears to it essential to the just decision of the case.

5[540-A. Provi9lon for inquiries and trial being held in the absence of accused in certain

cases: (1) At any stage of an inquiry or trial under this Code, where two or more accused are before

the Court, if the Judge or Magistrate is satisfied, for reasons to, be recorded, that any one or more

of such accused is or are incapable of remaining before the Court, he may, if such accused is

represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his

absence, and may at any subsequent stage of the proceedings, direct the personal attendance of

such accused.

1 S. 539A ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 150. 2 S. 539B ins. by Act 18 of 1923, s.150. 3 Subs. by Ordinance 12 of 1972, s.2 and Sch., for colon. 4 Proviso omitted ibid. 5 Section 540A ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 151.

182

(2) if the accused in any such case is not represented by a pleader, or if the Judge or Magistrate

considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded

by him either adjourn such inquiry or trial, or order that the case of such accused be taken up or

tried separately.]

541. Power to appoint place of imprisonment : (1) Unless when otherwise provided by any law

for the time being in force, the 1[Provincial Government] may direct in what place any person

liable to be imprisoned or committed to custody under this Code shall be confined.

(2) Removal to criminal jail of accused or convicted persons who are in confinement in civil

jail and their return to the civil jail: If any person liable to be imprisoned or committed to

custody under this Code is in confinement in a civil jail, the Court or Magistrate ordering the

imprisonment or committal may direct that the person be removed to a criminal jail.

(3) When a person is removed to a criminal, jail under 2[sub-section (2)], he shall, on being released

there from be sent back to the civil jail, unless either--

(a) three years have elapsed since he was removed to the criminal jail, in which case he

shall be deemed to have been discharged from the civil jail under Section 3[58

of the Code of Civil Procedure, 1908,]: or

(b) the Court which ordered his imprisonment in the civil jail has certified to the officer

incharge of the criminal jail that he is entitled to be discharged under Section 4[58 of the

Code of Civil Procedure, 1908].

542. Power of Presidency Magistrate to order prisoner in jail to be brought up for

examination : [Rep, by the Federal Laws (Revision and Declaration) Act, 1951. (26 of 1951),S.

3 and II Schedule].

543. Interpreter to be bound to Interpret truthfully: When the cervices of an interpreter are

required by any Criminal Court for the interpretation of any evidence or statement, he shall be

bound to state the true interpretation of such evidence or statement.

544. Expenses of complainants and witnesses: Subject to any rules5 made by the 6[Provincial

Government], 7* * * any Criminal Court may, if it thinks fit, order payment, on the part of

Government, of the reasonable expenses of any complainant or witness attending for the purposes

of any inquiry, trial or other proceeding before such Court under this Code.

1 Subs. by A.O., 1937, for “L.G.”. 2 Subs. for “sub-section(1)” by the Repealing and Amending act, 1924 (7 of 1924), s.2 and Sch. I. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “342 of the Code Civil Procedure”.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p.40, supra. 4 Subs. byt eh Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “341 of the Code of Civil Procedure”.

For enforcement of this amendement in the Provinces, see, para 2 of footnote 2 on p.40, supra. 5 For rules, see the different local Rules and Orders. 6 Subs. by A.O., 1937, for “L.G.”. 7 The words “with the previousl sanction of the G.G, in C”. rep. by the Devolution Act, 1920 (38 of 1920), s. 2 and Sch. I.

183

1[544-A. Compensation of the heirs to the person killed, etc.: 2[(1) Whenever a person is

convicted of an offence in the commission whereof the death of, or hurt, injury or mental anguish

or psychological damage, to any person is caused, or damage to or loss or destruction of any

property is caused, the Court shall, when convicting such person, unless for reasons to be recorded

in writing, it otherwise directs, order the person, convicted to pay to the heirs of the person whose

death has been caused, or to the person hurt or injured, or to the person to whom mental anguish

or psychological damage has been caused, or to the owner of the property damaged, lost or

destroyed, as the case may be, such compensation as the Court may determine, having regard to

the circumstances of the case.

(2) The compensation payable under subjection (1) shall be recoverable as 3[an arrears of land

revenue] and the Court may further order that, in default of payment 4[or of recovery as; aforesaid]

the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding

six months, or if it be a Court of the Magistrate of the Third Class, for a period not exceeding thirty

days.

(3) The compensation payable under sub-section (1) shall be in addition to any sentence with the

Court may impose for the offence of which the person directed to pay compensation has been

convicted.

(4) The provisions of sub-sections (2-B), (2-C), (3) and (4) of Section 250 shall as far as may be,

apply to payment of compensation under this section.

(5) An order under this section may also be made by an Appellate Court or by a Court when

exercising its powers of revision.

545. Power of Court to pay expenses of compensation out of fine : (T) Whenever under any

law in force for the time being a Criminal Court imposes a fine or confirms in appeal, revision or

otherwise a sentence of fine, or a sentence of which fine forms a part. the Court may, when passing

judgment, order the whole or any part of the fine recovered, to be applied--

(a) in defraying expenses properly incurred in the prosecution; 5[(b) in the payment to any person of compensation for any loss, 6[injury or mental anguish

or psychological damage caused by the offence, when substantial compensation is, in the

opinion of the Court, recoverable by such person in a Civil Court] ; 7[(c) when any person is convicted of any offence which theft, criminal misappropriation,

criminal breach of trust or cheating, or of having dishonestly received or retained, or of

having voluntarily assisted in disposing of, stolen property knowing or having reason to

believe the same to be stolen, in compensating any bona fide purchaser, of such property

for the loss of the same if such property is restored to the possession of the person entitled

thereto.

1 Ins. by Ordinance 12 of 1972, s.2 and Sch. 2 Subs. by the Code of Criminal Procedure (Amdt.) Ordinance, 1980 (6 of 1980), s.3, for sub-section (1). 3 Subs. by the Code of Criminal Procedure (Amdt.) Ordinance, 198 (6 of 1980), s.3 for “if it were a fine imposed by the Court”. 4 Ins. ibid. 5 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 152, for the original clause (b). 6 Subs. by Ordinance 6 of 1980, s.4, for “or injury”. 7 Clause (c) ins. Act 18 of 1923, s. 152.

184

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made,

before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented,

before the decision of the appeals -

546: Payments to be taken into account in subsequent suit : At the time of awarding

compensation in any Subsequent civil suit relating to the same matter the Court shall take into

account any sum paid or recovered as compensation under Section 1[544-A or Section 545].

2[546-A.Order of payment of certain fees paid by complainant in non-cognizable cases :

Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts

the accused, may in addition to the penalty imposed upon him, order him to pay to the complainant-

-

(a) the fee (if any) paid on the petition of complaint or for the examination of the

complainant, and

(b) any fees paid by the complainant for serving processes on his witnesses or on the

accused; and may further order that, in default of payment, the accused shall suffer simple

imprisonment for a period not exceeding thirty days..

(2) An order under this section may also be made by an Appellate Court, or by the High Court,

when exercising its powers of revision.]

547. Moneys ordered to be paid recoverable as fines: Any money (other than a fine) payable by

virtue of any order made under this Code, 3[and the method of recovery of which is not otherwise

expressly provided for shall be recoverable as if it were a fine.

548. Copies of proceedings: If any person affected by a judgment or order passed by a Criminal

Court desires to have a copy of 4* * * any order or deposition or other part of the record he shall,

on applying for such copy, be furnished therewith:

Provided that he pays for the same unless the Court, for some special reason thinks fit to furnish it

free of cost.

549. Delivery to military authorities of persons liable to be fried by Court-martial :

(1) The 5[Federal Government] may make rules6

1 Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, surpa. 2 Section 546A ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 153. 3 In. ibid., s. 154. 4 The words “the Judges charge to the jury or of” omitted by Ordinance 12 of 1972, s.2 and Sch. 5 Subs. by F.A.O., 1975, Art 2 and Table, for “Central Government (w.e.f 28-7-1975), which was previously amended by A.O., 1937 for “G.G. in C”. 6 For the Criminal Procedure (Military Offendors) Rules, 1958, see Gaz of P., 1958, Pt. I, pp. 463-464.

185

consistent with this Code and the 1[Pakistan Army Act, 1952 (XXXIX of 1952 the Pakistan Air

Force Act, 1953 (VI of 1953) and the Pakistan Navy Ordinance, 1961, ] (XXXV of 1961) and any

similar law for the time being in force as to the cases in which persons, subject, to 2[military, 3[naval] or air force law, shall be treated by a Court to which this Code applies, or by Court-Martial

and when any person is brought before a Magistrate and charged with an offence for which he: is

liable, 4[to be tried either by a Court to which this Code applies or by a Court-martial], such

Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a

statement of the offence, of which he is accused, to the commanding officer of the regiment, corps,

ship or detachment, to which he belongs, or to the commanding, officer of the nearest 5[military,

naval or air-force station, as the case may be, for the purposes of being tried by Court-martial.

(2) Apprehension of such persons : Every Magistrate shall, on receiving a written application for

that purpose by the commanding officer of any body of 6[soldiers, sailors or airmen] stationed or

employed at any such place, use his utmost endeavours, to apprehend and secure any person

accused of such offence.

(3) Notwithstanding anything contained in this Code if the person arrested by the police is a person

subject to the Pakistan Army Act, 1952, ( XXXIX of 1952) and the offence for which he is accused

is triable by a Court-martial, the custody of such person and the investigation of the offence of

which he is'-accused may be taken over by the commando officer of such person under the said

Act.

550. Powers of police to seize property suspected to be stolen : Any police officer may seize

any property which may be alleged or suspected to have been stolen, or which may be found under

circumstances which create suspicion of the commission, of any offence, such police officer, if

subordinate to; the officer incharge of a police station, shall forthwith report the seizure to that

officer.

551. Powers of superior officers of police: Police officers superior in rank to an officer incharge

of a police station may exercise the same powers, throughout the local area to which they are

appointed, as-may-be exercised by such officer within the limits of his station.

552. Powers to compel restoration of abducted females : Upon complaint made to a 7* *

[Sessions Judge] on oath of the abduction or unlawful detention of a woman or of a female child

under the age of 8[sixteen] years, for any unlawful purpose, he may make an order for the

immediate restoration of such woman to her liberty or of such female child to her husband, parent

guardian or other person having the lawful charge of such child and may compel compliance with

such order, using such force as may be necessary.

1 Subs. by the Code of Criminal Procedure (Amdt.) Ordinance, 1969, (20 of 1969), s. 3 for certain words (w.e.f 29-7-1969). 2 Subs. by Act 10 of 1927, s.2 and Sch.I, for “military law”. 3 Ins. by the Amending Act, 1934 (35 of 1934), s.2 and Sch. 4 Subs. ibid., Sch. For “under the Army Act, section 141, or under the Air Force Act, section 41, to be tried by a Court-martial”. 5 Subs. by Act 10 of 1927, s.2 and Sch.I, for “military station”. 6 Sub.s by Act 35 of 1934, s.2 and Sch., for “troops”. 7 The words “Presidency Magistrate or” omitted by A.O., 1949, Sch. 8 Subs. by the Indian Criminal Law Amendement act, 1924 (18 of 1924), s.5, for “fourteen”.

186

553. [Rep. by the Federal Laws (Revision and Declaration) Act, 1951 (XXVI of 1951), S. 3 and II

Schedule].

554. Power of 1*High Court to make rules for inspection of records of subordinate Courts: 2[With the previous sanction of the Provincial Government, any High Court] 3* * * may, from time

to time, make rules for the inspection of the records of Subordinate Courts.

(2) Powers of 4*High Courts to make rules for other purposes: .Every High Court 5* * * may

from time to time, and with the previous sanction of the 6[Provincial Government],

(a) make rules for keeping ail books, entries and accounts to be kept in all Criminal Courts

subordinate to it, and for the preparation and transmission of any returns or statements to

be prepared and submitted by such Courts;

(b) frame forms for every proceeding in the said Courts for which it thinks that a form

should be pre-qualified.

(c) make rules for regulating its own practice and proceedings and the practice and

proceedings of all Criminal Courts subordinate to it and:

(d) make rules for regulating the execution of warrants issued under this Code for the levy

of fines :

Provided that the rules and forms made and framed under this section shall not be

inconsistent with this Code or any other law in force for the time being.

(3) All rules made under this section shall be published; in the 7[official Gazette].

555. Forms : Subject to the powers conferred by Section 8[554], and by 9[Articles 202 and 203 Of

the Constitution], the forms set forth in the Fifth Schedule, with such variation as The

circumstances of each case require, may be used for the, respective purposes therein mentioned,

and if used shall be sufficient.

1 The word “Chartered” omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Second Sch. 2 Subs. by A.O., 1937, for “with the Previousl sanction of the G.G. in C., the High Court Court at Fort William, and, with the previous of the

L.G., and other High Court”. 3 The words “within the meaning of the Government of India Act, 1935,” which had been subs. by A.O., 1949, Sch., for “established by Royal Charter” have been omitted by the Central laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch (with effect from the 14th

October, 1955). 4 The word “other” omitted by Ordinance 27 of 1981, s.3 and 2nd Sch. 5 The words “not being a High Court ot which sub-section (1) applies which had been subs. by A.O., 1949, Sch. For “not established by Royal

from the 14th October, 1955), 6 Subs. by A.O., 1937 for “L.G.” 7 Subs by A.O, 1937, for “local official Gazette”. 8 Subs. by the Amending Act, 1903 (1 of 1903), for “553”. 9 The original words and figures “section 15 of the India High Courts Act 1861” have successively been subs. by the Amending Act, 1916 (13 of 1916), s.2 and Sch., A.O., 1937, A.O., 1961, Art.2 and Sch. (with effect from the 23rd March, 1956), A.O., 1964, and F.A.O., 1975, Art.2 and

Sch., to read all above.

187

556. Case in which Judge or Magistrate is personally interested : No Judge or- Magistrate

shall, except with the permission of the Court to which an appeal lies from his Court, try 1* * *

any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall

hear an appeal from any judgment or order passed or made by himself.

Explanation : A Judge or Magistrate shall not be deemed a party, or personally interested, within

the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner

or otherwise concerned-therein in a public capacity, or by reason only that he has viewed the place

in which an offence is alleged to have been committed, or any other place in which any other

transaction material to the case is alleged to have occurred, and made an inquiry in connection

with the case.

Illustration

A, as Collector, upon consideration of information furnished to him directs the prosecution of S

for a breach of the Excise Laws. A is disqualified, from trying this case as a Magistrate.

557. Practising pleader not to sit as Magistrate in certain Courts : No pleader who practises in

the Court of any Magistrate in 2* * * a district, shall sit as a Magistrate in such Court or in any

Court within the jurisdiction to such Court.

558. Powers to decide language of Court : The 3[Provincial Government] may determine what,

for the purposes of this Code, shall be deemed to be the language of each Court within the

territories .administered by such Government, other than 4[the High Courts].

5[559. Provision for powers of Judges and Magistrates being exercised by their successors in-

office : (1) Subject to the other provisions of the Code, the powers and duties of a Judge or

Magistrate may be exercised or performed by his successor-in-office.

(2) When there is any doubt as to who is the successor-in-office of any Magistrate, 6* * * the

District Magistrate 7* * * shall determine by order in writing the Magistrate who shall, for the

purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor-

in-office of such Magistrate.

(3) When there is any doubt as to who is the successor-in-office of any Additional or Assistant

Sessions Judge the Sessions Judge, shall determine by order in writing the Judge who shall, for the

purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor-

in-office of such Additional or Assistant Sessions Judge.

1 The words “or commit for trail” omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, supra. 2 The words “Presidency-twon or” rep. by the Federallaws (Revision and Declaration) Act, 1951 (26 of 1951), s.3 and Sch.II. 3 Subs. by A.O., 1937, for “L.G.” 4 Subs. by A.O, 1961, Art. 2 and Sch. (with effect from the 23rd , 1956, for “the Courts which are High Courts for the Purposes of the Governemnt

of India Act, 1935” , which has been subs. by A.O., 1937, for “the High courts establishes by Royal Charer”. 5 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 155, for the Original s. 559. 6 The words “the Chief Presidency Magistate in a Presidency-twon, and” omitted by A.O., 1949, Sch. 7 The words “outside such towns” omitted, ibid.

188

560. Officers concerned in sales not to purchase or bid. for property : A public servant having

any .duty to perform in connection with the sale of any property under this Code shall not purchase

or bid for the property.

561. Special provisions with respect to offence of rape by a husband. [Rep. by Offence of Zina

(Enforcement of Hadood Ordinance, VIII of 1979}.

1[561-A. Saving of inherent power of High Court : Nothing in this Code shall be deemed to

limit or affect the inherent power of the High Court to make such orders as may be necessary to

give effect to "any order under this Code, or to prevent abuse of the process of any Court or

otherwise to secure the ends of justice

First Offenders

2,3[562. Powers of Court to release certain convicted Offenders on probation of god conduct

instead of sentencing to punishment. When any person not under twenty one years of age is

convicted of an offence punishable with imprisonment for not more than seven years, or when any

person under twenty one years of age or any woman is convicted of an offence not punishable with

death or 4[imprisonment] for life, and no previous conviction is proved against the offender, if it

appears to the Court before which he is convicted, regard being had to the age, character or

antecedents of the offender and to the circumstances in Which the offence was committed, that it

is expedient that the offender should be released on probation of good conduct, the Court may,

instead of sentencing him at once to any punishment, direct that he be released on his entering into

a bond, with or without sureties, to appear and receive sentence when called upon during such

period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace

and be good behaviour:[ Subs. by Ordi. 1981.]

Provided that, where any first offender is convicted by a Magistrate of the third class, or a

Magistrate of the second class not specially empowered by the 5[Provincial Government] in this

behalf and the Magistrate is of opinion that the powers conferred by this section should be

exercised he shall record his opinion to that effect, and submit the proceedings to a Magistrate of

the first class 6* * *forwarding the accused to, or taking bail for his appearance before, such

Magistrate, who shall dispose of the case in manner provided by section 380.

1,7[(1A) Conviction and release with admonition: Conviction and release with admonition. In

any case in which a person is convicted of theft, theft in a building, dishonest misappropriation,

cheating or any offence under the Pakistan Penal Code punishable with not more than two years

imprisonment and no previous conviction is proved against him, the Court before whom he is so

convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental

1 S. 561A ins. by the Code of Criminal Procedure (Amdt.) Act 1923 (18 of 1923), s. 156. 2 Ss. 380, 562, 563 and 564 have been rep. by the Probation of Offenders Ordinance, 1960 (45 of 1960), s. 16, only in its application to

(i) the Provinces of West Pakistan with effect fromt eh 1st July, 1961;

See Gaz. Of P., 1961 Ext., p.957, and 3 Subs. by Act 18 of 1923, s.157, for the original s. 562. 4 Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and 2nd Sch., for “tranporation”. 5 Subs. by A.O., 1937, for “L.G.”. 6 The words “or Sub-divisional Magistrate” omitted by Ordinance 27 of 1981, s.3 and 2nd Sch. 7 Sub-section (aA) ins. by the Code of Criminal Procedure (Second Amdt.) Act, 1923 (37 of 1923), s. 4

189

condition of the offender and to the trivial nature of the offence or any extenuating circumstances

under which offence was committed, instead of sentencing him to any punishment, release him

after due admonition.

(2) An order under this section may be made by any Appellate Court or by the High Court where

exercising its power of revision.

(3) When an order has been made under this section in respect of any offender, the Court may, on

appeal when there is a right of appeal to such Court, or when exercising its power of revision, set

aside such order and in lieu thereof pass sentence on such offender according to law:

Provided that the High Court shall not under this sub-section inflict a greater punishment than

might have been inflicted by the Court which the offender was convicted.

(4) The provisions of sections 122, 126-A and 406A shall, so far as may be, apply in the case of

sureties offered in pursuance of the provisions of this section.

1563. Provision in case of offender failing to observe conditions of his recognizance. (1) If the

Court which convicted the offender, or a Court which could have dealt with the offender in respect

of his original offence, is satisfied that the offender has failed to observe any of the conditions of

his recognizance it, may issue a warrant for his apprehension.

(2) An offender, when apprehended on any such warrant, shall be brought forthwith before the

Court issuing the warrant, and such Court may either remand him in custody until the case is heard

or admit to bail with a sufficient surety conditions on his appearing for sentences. Such Court may,

after hearing the case, pass sentence

564. Conditions as to abode of offender. (1) The Court before directing the release of an offender

under section 562, 2[sub section (1)], shall be satisfied that the offender or his surety (if any) has a

fixed place of abode or regular occupation in the place for which the Court acts or in which the

offender is likely to live during the period named for the observance of the conditions.

(2) Nothing in this section or in sections 562 and 563 shall effect the provisions of section 31 of

the Reformatory School Act, 1897.

Previously convicted offenders

3[565. Order for notifying address of previously convicted offender : (1) When any

person having been convicted-

1 Ss. 380, 562, 563 and 564 have been rep. by the Probation of Offenders Ordinance, 1960 (45 of 1960), s. 16, only in its application to

(i) the Provinces of West Pakistan with effect fromt eh 1st July, 1961;

See Gaz. Of P., 1961 Ext., p.957, and 2 Ins. by the Repealing and amending Act, 1924 (7 of 1924), s.2 and Sch.I. 3 Subs. by the Code of Criminal Procedure (Amdt.) act, 1923 ( 18 of 1923), s.158, for the Original s. 565.

190

(a) by a Court in 1[Pakistan] of an offence punishable under Sectton215, Section 489-A, Section

489-B, Section 489-C, or Section 489-H of the Pakistan Penal Code. Or of any offence punishable

under Chapter XII or Chapter XVU of that Code, with- imprisonment' of either description for a

term of three years or upwards, or

2* * * * *

is again convicted of any offence punishable under any of those sections or Chapters with

imprisonment for a term of three years or upwards by a High Court, Court of Sessions, 3* * District

Magistrate, Sub-Divisional Magistrate or Magistrate of the first class, such Court or Magistrate

may, if it or he thinks fit, at the time of passing sentence of 4* * imprisonment on such person,

also order that his residence and any change of or change of or absence from such residence after

release be notified as hereinafter provided for a term not exceeding five years from the date of the

expiration of such sentence.

(2) If such conviction is set aside on appeal or otherwise, such order shall be come void.

(3) The 5[Provincial Government] may make rules to carry out the provisions of this section

relating to the notification of residence or change of or absence from residence by released

convicts.

(4) An order under this section may also be made by an Appellate Court or by the High

Court when exercising its power of revision.

6* * * * *

7[(5) [Omitted by the Criminal taw Amendment Act, XXII of 1939, s. 3].

(6) Any person charged with a breach of any such rule may be tried by a Magistrate of competent

jurisdiction in the district in which the place last notified by him as his place of residence is

situated.

__________

SCHEDULE I Enactments Repealed ; .[Rep. by the Repealing and Amending Act, X of 1914 S.

3 and Schedule II.

__________

1 Subs. by the Central Laws (Statue Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect fromt eh 14th October, 1955), for “the

Provinces and the Capital of the Federation”. Which had been subs. by A.O, 1949, Arts. 3(2) and 4, for “British India. 2 Clause (b) omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Second Sch. Which has previously

been amended by various enactments. 3 The words “Presidency Magistrate” omitted by A.O, 1949, Sch. 4 The words “transportation or” omitted by the Law Refroms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p.40, supra. 5 Subs. by A.O., 1937, for “L.G.”. 6 Sub-section (5) omitted by the Criminal Law Amendement Act, 1939 (22 of 1939), s. 3. 7 The original sub-section (6) was re-numbered as sub-section (5), ibid.

191

SCHEDULE – II

TABULAR STATEMENT OF OFFENCES

EXPLANATORY NOTE.-The entries in the second and seventh columns of this schedule,

headed respectively "Offence" and "Punishment under the Pakistan Penal Code", are not intended

as definitions of the offences and punishments described in the several corresponding sections of

the Pakistan Penal Code, or even as abstracts of those sections, but merely as references to the

subject of the section, the number of which is given in the first column.

CHAPTER V.-ABETMENT

1

Sectio

n.

2

Offence.

3

Whether the

police may

arrest

without

warrant or

not.

4

Whether a

warrant or a

summons

shall

ordinarily

issue in the

first instance.

5

Whether

bailable or

not.

6

Whether

compound

able or not.

7

Punishment

under the

Pakistan Penal

Code.

8

By what Court

friable.

109 Abetment of any

offence, if the act

abetted is

committed in

consequence, and

where no express

provision is made

for its punishment

May arrest

without war-

rant if arrest

for the of-

fence abetted

may be

made with-

out warrant,

but not

otherwise.

According as

a warrant or

summons

may issue for

the offence

abetted.

According

ass the

offence

abetted is

bailable or

not.

According

as the

offence

abetted is

compound-

able or not.

The same

punishment as

for the offence

abetted.

The Court by

which the

offence

abetted is

friable.

110 Abetment of any

offence, if the

person abetted does

the act with a

different intention

from that of the

abettor.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

According as

a warrant or

summons

may issue for

the offence

abetted.

According as

the offence

abetted is

bailable or

not.

According

as the

offence

abetted is

compound-

able or not.

The same

punishment as

for the offence

abetted.

The Court by

which the

offence

abetted is

friable.

111 Abetment of any

offence, when one

act is abetted and a

different act is

done; subject to the

proviso.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

According as

a warrant or

summons

may issue for

the offence

abetted.

According as

the offence

abetted is

bailable or

not.

According

as the

offence

abetted is

compound-

able or not.

The same

punishment as

for the offence

intended to be

abetted.

The Court by

which the

offence

abetted is

friable.

192

113 Abetment of any

offence, when an

effect is caused by

the act abetted

different from that

intended by the

abettor.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

According as

a warrant or

summons

may issue for

the offence

abetted.

According as

the offence

abetted is

bailable or

not.

According

as the

offence

abetted is

compound-

able or not.

The same

punishment as

for the offence

committed.

The Court by

which the

offence

abetted is

friable.

114 Abetment of any

offence, if abettor

is present when

offence is

committed.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

According as

a warrant or

summons

may issue for

the offence

abetted.

According as

the offence

abetted is

bailable or

not.

According

as the

offence

abetted is

compound-

able or not.

Ditto The Court by

which the

offence

abetted is

friable.

115 Abetment of an

offence, punishable

with death or

transportation for

life, if the offence

be not committed in

consequence of the

abetment.

If an act which

causes harm be

done in conse-

quence of the

abetment.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

May arrest

without war-

rant if arrest

for the of-

fence abetted

may be

made

without war-

rant, but not

otherwise.

According as

a warrant or

summons

may issue for

the offence

abetted.

Not bailable.

According as

a warrant or

summons

may issue for

the offence

abetted.

According

as the

offence

abetted is

compound-

able or not.

According

as the

offence

abetted is

compound-

able or not.

Imprisonment

of either

description for

7 years and

fine.

Imprisonment

of either

description for

14 years and

fine.

The Court by

which the

offence

abetted is

friable.

The Court by

which the

offence

abetted is

friable.

116 Abetment of an

offence, punishable

with imprisonment,

if the offence be

not committed in

consequence o the

abetment.If the

abettor o the

person abetted be a

public servant

whose duty it is to

prevent the offence.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

Ditto

According as

a warrant or

summons

may issue for

the offence

abetted.

Ditto

According as

the offence

abetted is

bailable or

not.

Ditto

According

as the

offence

abetted is

compound-

able or not.

Ditto

Imprisonment

extending to a

quarter part of

the longest

term, and of

any

discription,

provided for

the offence, or

fine, or both.

Imprisonment

extending to

half of the

longest term,

The Court by

which the

offence

abetted is

friable.

Ditto

193

and of any

description,

provided for

the offence, or

fine, or both.

117 Abetting the

commission of an

offence by the

public, or by more

than ten persons.

Ditto According as

a warrant or

summons

may issue for

the offence

abetted.

According as

the offence

abetted is

bailable or

not.

According

as the

offence

abetted is

compound-

able or not.

Imprisonment

of either

description for

3 years, or

fine, or both.

The Court by

which the

offence

abetted is

friable.

118 Concealing a de-

sign to commit an

offence punishable

with death or trans-

portation for life, if

the offence be com-

mitted.

If the offence be

not committed.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

Ditto

According as

a warrant or

summons

may issue for

the offence

abetted.

Ditto

Not bailable.

(Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the

original

entry.)[Bailab

le]

According

as the

offence

abetted is

compound-

able or not.

Ditto

Imprisonment

of either

description for

7 years and

fine.

Imprisonment

of either

description for

3 years and

fine.

The Court by

which the

offence

abetted is

friable.

Ditto

119 A public servant

concealing a design

to commit an

offence which it is

his duty to prevent,

if the offence be

committed.

If the offence be

punishable with

death or trans-

portation for life.

If the offence be

not committed.

May arrest

without war-

rant if arrest

for the of-

1cnce

abetted may

be made

without war-

rant, but not

otherwise.

Ditto

May arrest

without war-

rant if arrest

for the of-

fence abetted

may be

made

without war-

rant, but not

otherwise.

According as

a warrant or

summons

may issue for

the offence

abetted.

Ditto

According as

a warrant or

sumissumons

may e for the

offence

abetted.

According as

the offence

abetted is

bailable or

not.

Ditto.

(Subs. by Act

18 of 1923, s.

159, for the

original

entry.)[Bailab

le]

According

as the

offence

abetted is

compound-

able or not.

Ditto

According

as the

offence

abetted is

compound-

able or not.

Imprisonment

extending to

half of the

longest term,

and of any

description,

provided for

the offence, or

fine, or both.

Imprisonment

of either

description for

10 years.

Imprisonment

extending to a

quarter part of

the longest

term, and of

any

description,

provided for

the offence, or

fine, or both.

The Court by

which the

offence

abetted is

friable.

Ditto

The Court by

which the

offence

abetted is

triable.

194

120 Concealing a design to

commit an offence pun-ishable with im-

prisonment, if the

offence be committed.

If the offence be not

committed.

May arrest

without warrant if arrest for the

of1cnce abetted

may be made without warrant,

but not

otherwise.

Ditto

According as a

warrant or summons may

issue for the

offence abetted.

Ditto

(Subs. by Act 18

of 1923, s. 159, for the original

entry.)[Accordin

g as the offence concealed is

bailable or not.]

(Subs. by Act 18

of 1923, s. 159,

for the original entry.)[Bailable]

According as

the offence abetted is

compoundable

or not.

Ditto

Imprisonment

extending, to a quarter part of the

longest term, and

of any description, provided for the

offence, or fine, or

both.

Imprisonment

extending to one-eighth part of

the longest term,

and of the description,

provided for the

offence, or fine, or

both.

The Court by

which the

offence

abetted is

friable.

Ditto

(Ins. by Act 8 of 1913, s. 6 and Sch.)[CHAPTER VA. CRIMINAL CONPIRACY]

120B Criminal conspi-

racy to commit an

offence punishable

with death, trans-

portation or

rigorous impri-

sonment for a term

of two years or up-

wards.

Any other criminal

conspiracy.

May

arrest

without

warrant

if arrest

for the

offence

which is

the

object

of the

con-

spiracy

may be

made

without

warrant,

but not

otherwi

se.

Shall

not ar-

rest

without

a

warrant.

According as

a warrant or

summons

may issue for

the offence

which is the

object of the

conspiracy.

Summons

According

as the

offence

which is

the object

of the

conspirac

y is

bailable

or not.

Bailable

Not com-

poundable.

Ditto

The same

punishment as

that provided

for the

abetment of the

offence which

is the object of

the conspiracy.

Imprisonment

of either

description for

six months or

fine, or both.

Court of Session when

the offence which is the

object of the conspiracy

is triable exclusively by

such Court: in the case

of all other offences

Court of Session, (The

words "Presidency

Magistrate" omitted by

A. O., 1949, Sch.)* * or

Magistrate of the first

class.

(The words "Presidency

Magistrate" and by

implication the word

"or" omitted, by A. O.,

1949, Sch.)* * *

Magistrate of the first

class.]

195

CHAPTER VI.-OFFENCES AGAINST THE STATE

121 Waging or attempting

to wage war, or

abetting the waging

of war, against (Subs.

by A. O., 1961, Art. 2

and Sch. (with effect

from the 23rd March,

1956), for "the

Queen".)[Pakistan.]

Shall not

arrest

without

warrant.

Warrant Not

bailable.

Not com-

poundable.

Death, or

transportation

for life, and

(Subs. for

"forfeiture of

property" by Act

18 of 1923, s.

159.)[fine].

Court of Session.

121A Conspiring to commit

certain offences

against the State.

Ditto Ditto Not

bailable.

Ditto Transportation

for life or any

shorter term, or

imprisonment of

either

description for

10 years (Ins.

ibid.)[and fine].

Court of Session.

122 Collecting arms, etc.,

with the intention of

waging war against

(Subs. by A. O.,

1961, Art. 2 and Sch.

(with effect from the

23rd March, 1956),

for "the

Queen".)[Pakistan.]

Ditto Ditto Not

bailable.

Ditto Transportation

for life, or

imprisonment of

either

description for

10 years and

(Subs. for

"forfeiture of

property" by Act

18 of 1923, s.

159.)[fine].

Court of Session.

123 Concealing with

intent to facilitate a

design to wage war.

Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Imprisonment of

either

description for

10 years, and

fine.

Court of Session.

(This

item

was

ins. by

the

Federa

l Laws

(Revis

ion

and

Declar

ation)

Act,

1951

(26 of

1951)

s. 4

and III

Sch.)[

123A

Condemnation of the

State and advocacy of

abolition of its

sovereignty.

Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Rigorous

imprisonment

for 10 years, and

fine.

Court of Session.

196

124 Assaulting (Subs. by

A. O., 1961, Art. 2,

for "Governor

General" (with effect

from the 23rd March,

1956).)[President],

Governor, etc., with

intent to compel or

restrain the exercise of any lawful power

.

Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Imprisonment of

either

description for 7

years, and fine.

Court of Session.

124A Sedition Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Transportation

for life or for

any term and

fine, or

imprisonment of

either

description for 3

years and fine,

or fine.

Court of Session, (The

words "Chief Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * " or

District Magistrate or

Magistrate of the first class

specially empowered by

the (Subs. by the A. O.,

1937, for "L.

G.".)[Provincial

Government] in that

behalf.

125 Waging war against

any Asiatic Power in

alliance or at peace

with 5[Pakistan], or

abetting the waging

of such war.

Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Transportation

for life and fine,

or imprisonment

of either descrip-

tion for 7 years

and fine, or fine.

Court of Session

126 Committing de-

predation on the

territories of any

Power in alliance or

at peace with (Subs.

by A. O., 1961, Art. 2

and Sch., for "the

Queen" (with effect

from the 23rd March,

1956).)[Pakistan].

Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Imprisonment of

either

description for 7

years and fine

Court of Session

127 Receiving property

taken by war or

depredation

mentioned in sections

125 and 126.

Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Imprisonment of

either

description for 7

years and fine

Court of Session

128 Public servant

voluntarily allowing

prisoner of State or

war in his custody to

escape.

Shall not

arrest

without

warrant.

Warrant Not

bailable

Not

compounda

ble.

Transportation

for life, or

imprisonment of

either

description for

10 years, and

fine.

Court of Session

129 Public servant

negligently suffering

prisoner of State or

war in his custody to

escape.

Shall not

arrest

without

warrant.

Warrant Bailable Not

compounda

ble.

Simple

imprisonment

for 3 years and

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

197

130 Aiding escape of,

rescuing or har-

bouring, such

prisoner, or offering

any resistance to the

recapture of such

prisoner.

Shall not

arrest

without

warrant.

Warrant Not

bailable.

Not com-

poundable.

Transportation

for life, or

imprisonment of

either

description for

10 years, and

fine.

Court of Session.

CHAPTER VII.-OFFENCES RELATING TO THE ARMY AND NAVY

131 Abetting mutiny, or

attempting to seduce an

officer, soldier, (Subs.

by the Repealing and

Amending Act, 1927

(10 of 1927), s. 2 and

Sch. I, for "or sailor".)

[sailor or airman] from

his allegiance or duty.

May

arrest

without

war-

rant.

Warrant Not

bailable

Not com-

poundable.

Transportation

for life, or

imprisonment of

either

description for

10 years, and

fine.

Court of Session.

132 Abetment of mutiny, if

mutiny is committed in

consequence thereof.

May

arrest

without

war-

rant.

Warrant Not

bailable

Not com-

poundable.

Death, or

transportation

for life, or

imprisonment of

either

description for

10 years, and

fine.

Court of Session.

133 Abetment of an assault

by an officer, soldier,

(Subs. by the Repealing

and Amending Act,

1927 (10 of 1927), s. 2

and Sch. I, for "or

sailor".) [Sailor or air-

man] on his superior

officer, when in the ex-

ecution of his office.

May

arrest

without

war-

rant.

Warrant Not

bailable

Not com-

poundable.

Imprisonment of

either

description for 3

years, and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * * or

Magistrate of first class.

134 Abetment of such

assault, if the assault is

committed.

May

arrest

without

war-

rant.

Warrant Not

bailable

Not com-

poundable.

Imprisonment of

either

description for 7

years, and fine.

Court of Session.

135 Abetment of the

desertion of an officer,

soldier, (Subs. by the

Repealing and

Amending Act, 1927

(10 of 1927), s. 2 and

Sch. I, for "or sailor".)

[sailor or airman].

May

arrest

without

war-

rant.

Warrant Bailable Not com-

poundable.

Imprisonment of

either

description for 2

years, or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted ibid.) * * *

Magistrate of the first or

second class.

136 Harbouring such an

officer, soldier (Subs.

by the Repealing and

Amending Act, 1927

(10 of 1927), s. 2 and

Sch. I, for "or sailor".)

[sailor or airman who

has deserted.

May

arrest

without

war-

rant.

Warrant Bailable Not com-

poundable.

Ditto (The words "Presidency

Magistrate" and by

implication the word "or"

omitted ibid.) * * *

Magistrate of the first or

second class.

198

137 Deserter concealed on

board merchant-vessel,

through negligence of

master or person in charge thereof.

Shall

not

arrest

with

out

warrant

.

Summons Bailable Not com-

poundable.

Fine of 500

rupees

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted ibid.) * * *

Magistrate of the first or

second class.

138 Abetment of act of

insubordination by an

officer, soldier, (Subs.

by the Repealing and

Amending Act, 1927

(10 of 1927), s. 2 and

Sch. I, for "or sailor".)

[sailor or airman] if the

offence be committed

in consequence.

May

arrest

without

war-

rant.

Summons Bailable Not com-

poundable.

Imprisonment of

either

description for b

months, or fine,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted ibid.) * * *

Magistrate of the first or

second class.

140 Wearing the dress or

carrying any token used

by a soldier, (Ins. by

the Repealing and

Amending Act, 1927

(10 of 19271, s. 2 and

Sch. I.) [sailor or

airman] with intent that

it may be believed that

he is such a soldier,

(Ins. by the Repealing

and Amending Act,

1927 (10 of 19271, s. 2

and Sch. I.) [sailor or

airman].

May

arrest

without

war-

rant.

Summons Bailable Not

compounda

ble.

Imprisonment of

either

description for 3

months

Any Magistrate.

CHAPTER VIII.—OFFENCE AGAINST THE PUBLIC TRANQUILLITY

143 Being member of

an unlawful as-

sembly.

May arrest

without war-

rant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for 6 months

Any Magistrate.

144 Joining an unlawful

assembly armed

with any deadly

weapon.

May arrest

without war-

rant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for 2 years

Any Magistrate.

145 Joining or con-

tinning in an

unlawful assembly,

knowing that it has

been commanded

to dispersre.

May arrest

without war-

rant.

Warrant Bailable Not

compoundable.

Imprisonment

of either

description

for 2 years

Any Magistrate.

147 Rioting Ditto Ditto Ditto According as the offence is

committed with

another

Ditto Ditto

199

compoundable

offence or not.

148 Rioting, armed with

a deadly weapon.

Ditto Ditto Ditto Ditto Impriosment

of either

desription for

3 years or

fine or both.

Magistrate of the first

class.

149 If an offence be

committed by any

member of an

unlawful assembly,

every other

member of such

assembly shall be

guilty of the

offence.

According as

arrest may be

made without

warrant for

the offence

or not.

According a

warrant or

summa may

issue for the

offence.

According

as the

offence is

bailable or

not.

Ditto Imprisonment

of either

description

for 3 years, or

fine, or both.

The Court by which the

offence is friable.

150 Hiring, engaging or

employing persons

to take part in an

unlawful assembly.

May arrest

without war-

rant.

According

the offer

committed

by the person

hire engaged

employed

According

as the

offence is

bailable or

not.

Ditto The same as

for the of-

fence.

The Court by which the

offence is friable.

151 Knowingly joining

or continuing in

any assembly of

five or more

persons after it has

been commanded

to disperse.

May arrest

without war-

rant.

Summons Bailable Ditto The same as

for a member

of such

assembly,

and for any

offence com-

mitted by any

member of

such

assembly.

Any Magistrate.

152 Assaulting or

obstructing public

servant when

suppressing riot,

etc.

May arrest

without war-

rant.

Warrant Bailable Ditto Imprisonment

of either

description

for 6 months,

or fine, or

both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * * or

Magistrate of the first

class.

153 Wantonly giving

Provocation with

intent to cause riot,

if rioting be committed

.

If not committed

May arrest

without warrant

May arrest

without

warrant

Warrant

Summons

Bailable

Bailable

Not

compoundable.

Not

compoundable.

Imprisonment

of either

description

for 1 year, or fine, or both.

Imprisonment

of either

description

for 6 months,

or both.

Any Magistrate.

Any Magistrate.

200

153A Promoting enmity

between classes.

Shall not

arrest without

warrant.

Warrant Not

bailable.

Not

compoundable.

Imprisonment

of either

description

for 2 years or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first class.

154 Owner or occupier

of land not giving

information of riot,

etc.,

Shall not

arrest without

warrant

Summons Bailable Not

compoundable.

Fine of 1,000 (The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

155 Person for whose

benefit or on whose

behalf a riot takes

place not using all

lawful means to

prevent it.

Shall not

arrest

without

warrant

Summons Bailable Not

compoundable.

Fine (The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O.

156 Agent of owner or

occupier for whose

benefit a riot is

committed not

using all lawful

means to prevent it.

Shall not

arrest without

warrant

Summons Bailable Not

compoundable.

Fine (The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O.

157 Harbouring persons

hired for an

unlawful assembly.

May

arrest withou

t warrant

Summons Bailable Not

compoundable.

Imprisonment

of either

Description

for 6 months,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O.

158 Being hired to take

part in an unlawful

assembly or riot.

May

arrest withou

t warrant

Summons Bailable Not

compoundable.

Imprisonment

of either

Description

for 6 months,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O.

(The

figures

"159"

rep. by

the

Repeal

ing

and

Amen

ding

Act,

1925

(37 of

1925),

s. 3.

and

Sch. II.)

*

Or to go armed. Warrant Summons Bailable Not

compoundable.

Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O.

201

160 Committing

affray

Shall not

arrest without

warrant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for one

month, or

fine of 300

rupees, or

both.

Any Magistrate.

CHAPTFR IX.-OFFENCES BY OR RELATING TO PUBLIC SERVANTS

161 Being or expecting to

be a public servant,

and taking a grati-

fication other than

legal remuneration in

respect of an official

act.-

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable

Imprisonment

of either

description

for 3 years or

fine of both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O.,1949, Sch.)* * or

Magistrate of the first

class.

162 Taking a gratification

in order by corrupt or

illegal means to

influence a public

servant.

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for 3

years,

or fine, or

both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* or

Magistrate of the first class

163 Taking a gratification

for the exercise of

personal influence

with a public servant.

Ditto Ditto Ditto Ditto Simple

imprisonment

for1 year, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class.

164 Abetment by public

servant of the

offences defined in

the last two preceding

clauses with reference to himself.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first class

165 Public servant

obtaining any

valuable thing,

without consideration

from a person

concerned in any pro-

ceeding or business

transacted by such

public servant.

Ditto Ditto Ditto Ditto (Subs. by the

Criminal Law

Amendment

Act, 1953 (37

of 1953), s. 3

(i), for

"Simple

imprisonment

for 2 years, or

fine, or

both".)

(Subs. ibid., for "* * *

Magistrate of the first or

second class". The

asterisks denote the

omission of Presidency

Magistrate" and by

implication the word "or"

by A. O., 1949, Sch.)

(Art.

165A, ins. by

Act 37

of 1953,

s. 3

Abetment of offences

under sections 161

and 165.

Ditto Ditto Ditto Ditto (Subs. ibid., for "* * *

Magistrate of the first or

second class". The

asterisks denote the

omission of Presidency

Magistrate" and by

202

(ii).) [1

65A implication the word "or"

by A. O., 1949, Sch.)

166 Public servant

Disobeying

a direction of

the law with intent to

cause injury to any

person.

Ditto Ditto Ditto Ditto Simple

imprisonment

for1 year, or

fine, or both.

(Subs. ibid., for "* * *

Magistrate of the first or

second class". The

asterisks denote the

omission of Presidency

Magistrate" and by

implication the word "or"

by A. O., 1949, Sch.)

167 Public servant

framing an incorrect

document with intent

to cause injury.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 3 years

or fine, or

both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* or

Magistrate of the first

class.

168 Public servant

unlawfully engaging

in trade.

Ditto Ditto Ditto Ditto Simple

imprisonment

for1 year, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class.

169 Public servant

unlawfully buying or

bidding for property.

Ditto Ditto Ditto Ditto Simple

imprisonment

for and

confiscation

of property, if

purchased.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class.

170 Personating public

servant.

May arrest

without

warrant.

Warrant Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

Any Magistrate.

171 Wearing garb or

carrying token used

by public servant with

fraudulent intent.

Ditto Summons Ditto Ditto Imprisonment

of either

description for 3

months, or

fine of 600

rupees, or

both.

Ditto

171E Bribery Shall not

arrest with-

out

warrant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for one year,

or fine, or

both or if

treating only,

fine only.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949

Sch.)* * * Magistrate of

the first class.

203

(This

item

has

been

amend

ed in

its

applic

ation

to the

N:

W.F.P

. by

the

Crimi

nal

Proced

ure

(Electi

on

Offenc

es) (N:

W.F.P

.

Arndt.

) Act,

1938

(N: W.

F. P.

Act 8

of

1938))

171E

Undue influence and

personation at an

election.

Ditto Ditto Ditto Imprisonment

of either

description

for one year,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949

Sch.)* * * Magistrate of

the first class.

171F False statement in

connection with an

election.

Ditto Ditto Ditto Ditto Fine (The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949

Sch.)* * * Magistrate of

the first class.

171H Illegal payments in

connection with

elections.

Ditto Ditto Ditto Ditto Fine of 500

rupees

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949

Sch.)* * * Magistrate of

the first class.

171I Failure to keep

election accounts.

Ditto Ditto Ditto Ditto Ditto (The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949

Sch.)* * * Magistrate of

the first class.

204

CHAPTER X.-CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS

172 Absconding to avoid service of

summons or

other proceeding

from a public servant.

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable.-

Simple

imprisonment

for 1 month,

or fine of

1500 rupees,

or both.

Any Magistrate.

If summons or notice

require attendance

in person, etc., in a

Court of Justice.

Ditto Ditto Ditto Ditto Simple

imprisonment

for 6 months,

or fine of

3,000 rupees,

or both.

Any Magistrate.

173 Preventing the service

or the affixing of any

summons or notice,

or the removal of it

when it has been

affixed, or preventing

a proclamation.

Ditto Ditto Ditto Ditto Simple

imprisonment

for1 month,

or fine of

1500 rupees,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949

Sch.)* * * Magistrate of

the first or second class.

If summons, etc.,

require attendance in

person,etc., in a

Courtof Justice.

Ditto Ditto Ditto Ditto Simple

imprisonment

for6 months,

or fine of

1,000 rupees,

or both.

174 Not obeying a legal

order to attend at a

certain place in

person or by agent, or

departing therefrom

without authority.

Ditto Ditto Ditto Ditto Simple

imprisonment

for 1 month,

or fine of

1500 rupees,

or both.

Any Magistrate.

If the order re-

quire personal

attendance, etc.,

in a Court of

Justice.

Ditto Ditto Ditto Ditto Simple

imprisonment

for 6 months,

or fine of

3,000 rupees,

or both.

Any Magistrate.

205

175 Intentionallyomitting

to produce a

document to a public

servant by a person

legally ound to

pro-ceduce or

deliver such

document.

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable.

Simple

imprisonment

for 1 month,

or fine of

1500 rupees,

or both.

The Court in which the

offence is committed,

ubject to the provisions f

Chapter XXXV; or,ifnot

committed in a ourt, a (The

words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrae of the

first or second class.

If the document is

required to be

produced in or

delivered to a Court

of Justice.

Ditto Ditto Ditto Ditto Simple

imprisonment

for6 months,

or fine of

3,000 rupees,

or both.

The Court in which the

offence is committed,

subject to the provisions of

Chapter XXXV; or, if not

committed in a Court, a

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

176 Intentionally omitting

to give notice or

information to a

public servant by a

person legally bound

to give such notice or

information.

Ditto Ditto Ditto Ditto Simple

imprisonment

for 1 month,

or fine of

1500 rupees,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

If the notice or

information required

respects the omission of an offence, etc.

Ditto Ditto Ditto Ditto Simple

imprisonment

for6 months,

or fine of

3,000 rupees,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

[If the notice or

information

is required by

an order

passed under

subsection (1) of

section 565 of

thisCode.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 6 months,

or fine of

3,000rupees,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

177 Knowingly furnishing

false in formation to a

public servant.

Ditto Ditto Ditto Ditto Ditto Ditto

If the information

required respects

the commission

of an offence, etc.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, of

fine, or both.

Ditto

206

178 Refusing oath when

duly required to

take oath by a

publicservant.

Ditto Ditto Ditto Ditto Simple

imprisonment

for 6months,

or fine of

3,000 rupees,

or both.

The Court in which the

offence is committed,

subject to the provisions of

Chapter XXXV; or, if not

committed in a Court, a

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.) Magistrate of the

first of second class.

179 Being legally bound

to state truth, and

refusing to answer

questions.

Ditto Ditto Ditto Ditto Ditto The Court in which the

offence is committed,

subject to the provisions of

Chapter XXXV; or, if not

committed in a Court, a

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)Magistrate of the first

or second class.

180 Refusing to sign A

statement made to a

public

servant when l

egally required to do

so.

Shall not

arrest

without

warrant

Summons Bailable Not

compoundable

Simple

imprisonment

for 3months,

or fine of

1500rupees,

or both.

The Court in which the

offence is committed,

subject to the provisions of

Chapter XXXV; or, if not

committed in a Court, a

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)Magistrate of the first

or second class.

181 Knowingly stating to

a public servant on

oath as true that

which is false.

Ditto Warrant Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine,

Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)or Magistrate of the

first class

182 Giving false

information to

a public servant in

order to cause him

to use his lawful

power to the injury or

annoyance of any

person.

Ditto Summons Ditto Ditto Imprisonmen

t of either

description

for 6 months,

or fine of

1,000rupees,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)Magistrate of the first

or second class.

183 Resistance to the

taking of property by

the lawful authority

of a public servant.

Ditto Ditto Ditto Ditto Ditto Ditto

184 Obstructing sale of

property offered for

sale by authority of

a public

servant.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 1 month,

or fine of

1500 rupees,

or both.

Ditto

207

185 Bidding, by a person

under a legal

incapacity to

purchase it, for

property at a lawfully

authorized sale, or

bidding without

intending to perform

the obligations

incurred thereby.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 1month,

or fine of

300rupees, or

both.

Ditto

186 Obstructing public

servant in discharge

of his public

functions.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3months,

or fine of

1500rupees,

or both.

Ditto

187 Omission to assist

public servant

when bound by law

to give such assist-

ance.

Ditto Ditto Ditto Ditto Simple

imprisonment

for 1 month,

or fine of

600rupees, or

both.

Ditto

Wilfully neglecting to

aid a public servant

who demands aid in

the execution of

process, the

prevention of of

fences, etc.

Ditto Ditto Ditto Ditto Simple

imprisonment

for 6months,

or fine of

1500rupees,

or both.

Ditto

188 Disobedience to an

order law-fully

promulgated by a

public servant, if such

disobedience causes

obstruction,

annoyance or injury

to persons lawfully

employed.

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable.

Simple

imprisonment

for 1 month,

or fine of 600

rupees, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

If such disobedience

causes danger to

human life, health

or safety, etc.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 6 months,

or fine of

3,000 rupees,

or both.

Ditto

189 Threatening a public

servant with injury

to him, or one in

whom he is

interested, to induce

him to do or forbear

to do any official act.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

Ditto

190 Threatening any

person to induce him

to refrain from

Ditto Ditto Ditto Ditto Imprisonment

of either

description

Ditto

208

making a legal for

protection form

injury.

for I year, or

fine, or both.

CHAPTER XI.-FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE

193 Giving or fabricating

false evidence in a

judicial proceeding.

Shall not

arrest

without

warrant.

Warrant Bailable Not

compoundable.-

Imprisonment

of either

description

for 7 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first class.

Giving or fabricating

false evidence in

any other case.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Ditto

194 Giving or fabricating

false evidence

with intent to

causeany person to be

convicted of a capital

offence

Ditto Ditto Not

bailable.

Ditto Transportatio

n for life, or

rigorous

imprisonment

for 10 years,

and fine.

Court of Session.

If innocent per-

son be thereby

convicted and

executed.

Ditto Ditto Ditto Ditto Death, or as

above

Ditto

195 Giving or fabricating

false evidence with

intent to

procureconviction of

an offence punis able

with transportation

for life or with im-

prisonment for7 years

or upwards.

Ditto Ditto (Subs. by

the

Amending

Act, 1903

(1 of

1903), s. 3

and Sch.

II, Part II,

for

"Bailable".

) [Not

bailable.]

Ditto The same as

for the

offence.

Ditto

196 Using in a judicial

proceeding evidence

known to be false

or fabricated.

Shall not

arrest

without

warrant.

Warrant According

as The

offence. Of

giving

such evid-

ence is

bailable or

not.

Not

compoundable -

The same as

for giving or

fabricating

false

evidence.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

197 Knowingly issuing or

signing a false

certificate relating to

any fact of which

such certificate is by

law admissible in

evidence.

Ditto Ditto Bailable Ditto The same as

for giving

false

evidence

Ditto

198 Using as a true

certificate one known

to be false in a mate-

rial point.

Ditto Ditto Ditto Ditto Ditto Ditto

199 False statement made

in any declaration

Ditto Ditto Ditto Ditto Ditto Ditto

209

which is by law

receivable as

evidence.

200 Using as true any

such declaration known to be false.

Ditto Ditto Ditto Ditto Ditto Ditto

201 Causing

disappearance of

evidence of an

offence committed, or

giving false inforation

touching itto screen

the offender, if a

capital offence

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 7 years,

and fine.

Court of Session.

If punishable with

transprtation for life

or impris

onmentfor 10 years.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* *,or

Magistrate of the first

class.

If punishable with

less than 10 years

imprisonment.

Ditto Ditto Ditto Ditto Imprisonment

for a quarter

of the longest

term, and of

the

description

provided for

the offence or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class, or Court by which

the offence is triable.

202 Intentional omission

to give information of

an offence by a

person legallybound

to inform.

Ditto Summons . Bailable Ditto Imprisonment

of either

description

for 6 months,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

203 Giving false

information

respecting an offence

committed.

Ditto Warrant Ditto Ditto Imprisonment

of either

description

for 2 years or

fine, or both.

Ditto

204 Secreting or

destroying any

document to prevent

its production as

evidence.

Shall not

arrest

without

warrant.

Warrant Bailable Not

compoundable -

Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first class.

205 False personation for

the purpose of any act

or proceeding in a

suit or criminal

prosecution, or for

becoming bail or

security.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first class,

210

206 Fraudulent removal

or concealment,

etc.,of property to

prevent its seizure as

a forfeiture, or in

satisfaction of a fine

under sentence or in

execution of a decree.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

207 Claiming property

without right, or

practicing deception

touching any right to

it, to prevent its being

taken as a forfeiture,

or in satisfaction of a

fine under sentence,

or in execution of a decree.

Ditto Ditto Ditto Ditto Ditto Ditto

208 Fraudulently

suffering a decree to

pass for a sum not

due, or suffering

decree to be executed

after it has been

satisfied.

Ditto Ditto Ditto Ditto Ditto Ditto

209 False claim in a Court

of Justice.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years,

and fine.

D

i

t

t

o

210 Fraudulently

obtaining a decree for

a sum not due or

causing a decree to be

executed after it has

been satisfied.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

D

i

t

t

o

211 False charge of

offence made with

intent to injure.

Ditto Ditto Ditto Ditto Ditto D

i

t

t

o

If offence charged be

punishable with

imprisonment for 7

years or upwards.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* *or Magistrate of

the first class.

If offence chared be

capital, or punishable

with transportation

for life.

Shall not

arrest

without

warrant.

Warrant Bailable Not

compoundable.-

Imprisonment

of either

description

for 7 years,

and fine.

Court of Session.

212 Harbouring an

offender, if the

offence be capital.

May arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

211

for 5 years,

and fine.

O., 1949, Sch.)* * or

Magistrate of the first

class.

If punishable with

transportation for life,

or with imprisonment

for 10 years.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Ditto

If punishable with

imprisonment for 1

year and not for 10 years.

Ditto Ditto Ditto Ditto Imprisonment

for a quarter

of the longest

term, and of

the

description

provided

for the

offence, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class, or Court by which

the offence is triable.

213 Taking gift, etc, to

screen an off-ender

from punishment, if

the offence be capital.

(Subs. by

the Code

of Criminal

Procedure

(Amdt.)

Act, 1923

(18 of

1923), s.

159, for the

original

entry.)

[May arrest

without

warrant

Ditto Ditto Ditto Imprisonment

of either

description

for 7 years

and fine.

Court of Session.

If punishable with

transportation for life

or with imprisonment

for 10 years.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of he first class.

If with imprisonment

for less than 10 years.

Ditto Ditto Ditto Ditto Imprisonment

for a quarter

of the longest

term, and of

the

description:

provided for

the offence,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first class, or Court

by which the offence is

triable.

212

214 Offering gift or

restoration of

property in

consideration of

screening offender, if

the offence be capital.

(Subs. by

the Code

of Criminal

Procedure

(Amdt.)

Act, 1923

(18 of

1923), s.

159, for the

original

entry.)

[Shall not

arrest

without

warrant.]

Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Court of Session.

If punishable with

transportation for life,

or with imprisonment

for 10 years.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

If with imprisonment

for less than 10 years.

Ditto Ditto Ditto Ditto Imprisonment

for a quarter

of the longest

term, and of

the

description,

provided for

the offence,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class, or Court by which

the offence is triable.

215 Taking gift to help to

recover moveable

property of which a

person has been

deprived by an

offence, without

causing apprehension

of of fender.

(Subs. by

the Code

of Criminal

Procedure

(Arndt.)

Act, 1923

(18 of

19231, s.

159, for the

original

entry.)

[May arrest

without

warrant

Warrant Bailable Not

compoundable.

Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first class.

216 Harbouring an

offender who has

escaped from

custody, or whose

apprehension has

been ordered, if the

offence be capital.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first class.

If punishable with

transportation for life,

or with imprisonment

for 10 years.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

213

with or

without fine.

If with imprisonment

for 1 year, And not

for 10 years.

Ditto Ditto Ditto Ditto Imprisonment

for a quarter

of the longest

term, and of

the

description,

provided for

the offence,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate

of the first class, or Court

by which the offence is

triable.

216A Harbouring robbers

or dacoits

Ditto Ditto Ditto Ditto Rigorous

imprisonment

for 7 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first class.

217 Public servant

Disobeying a

direction of law with

intent to save person

from punishment, or

property from

forfeiture.

Shall not

arrest

without

warrant.

Summons Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

218 Public servant

framing an incorrect

record or writing with

intent to save person

from punishment, or

property from

forfeiture.

Ditto Warrant Ditto Ditto Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session.

219 Public servant in a

judicial proceeding

corruptly making

andpronouncing an order, report,

verdict or decision which he

knows to be

contrary to law.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 7 years,

or fine, or

both.

Ditto

220 Commitment for trial

or confinement by a

person having au-

thority, who knows

that he is acting

contrary to law.

Shall not

arrest

without

warrant.

Warrant Bailable Not

compoundable.

Imprisonment

of either

description

for 7 years, or

fine, or both.

Court of Session.

221 Intentional omission

to apprehend on the

part of a public ser-

vant bound by law to

apprehend an

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

Ditto

214

offender, if the off-

ence be capital.

with or

without fine.

If punishable with

transportation for life,

or imprisonment for

10 years.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

with or

without

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* or

Magistrate of the first

class.

If with imprisonment

for less than 10 years.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years,

with or

without fine.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

222 International

omission to

apprehend on the part

of a public servant

bound by law to

apprehend person

under sentence of a

Court of Justice if

under sentence of

death.

Ditto Ditto Not

bailable

Ditto Transportatio

n for life, or

imprisonment

of either

description

for 14 years,

with or

without fine.

Court of Session.

If under sentence of

transportation (The

words "or penal

servitude for life,"

omitted by the

Criminal Law

(Extinction of

Discriminatory

Privileges) Act, 1949

(2 of 1950), Sch.)* *

* or transportation,

imprisonment (The

words "or penal

servitude" omitted,

ibid.)* * for 10 years

or upwards.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

with or

without fine.

Ditto

If under sentence Of

imprisonment for less

than 10 years or

lawfully committed to

custody.

Ditto Ditto Bailable Ditto Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

223 Escape from

confinement

negligently suffered by a public servant.

Ditto Summons Ditto Ditto Simple

imprisonment

for2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

215

224 Resistance or

obstruction by a

person to his lawful

apprehension.

May arrest

without

war-Warra

nt

Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

Ditto

225 Resistance or

obstruction to the

lawful apprehension

of another person, or

rescuing him from

lawful custody.

May arrest

without

warrant.

Warrant Bailable Not

compoundable

Imprisonment

of either

description

for 2 years, or

fine, or

both.

(The words “Presidency

Magistrate” and by

implication the word “or”

omitted by A.O. 1949,

Sch.)* * * Magistrate of

the first or second class.

If charged with an

offence punishable

with transportation

for life, or im-

prisonment for 10

years.

Ditto Ditto Not

bailable.

Ditto Imprisonment

of either

description

for 3 years

and fine.

Court of Session, (The

words “Presidency

Magistrate” omitted, ibid.)

* * or Magistrate of the

first class.

If charged with a

capital offence.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Court of Session.

If the person is

sentenced to

transportation for life,

or to transportation,

(The word “penal

servitude,” omitted by

the Criminal Law

(Extinction of

Discriminatory

Privileges) Act, 1949

(2 of 1950), Sch.)* *

* or imprisonment for

10 years or upwards.

Ditto Ditto Ditto Ditto Ditto Ditto

If, under sentence of

death.

Ditto Ditto Ditto Ditto Transportatio

n for life, or

imprisonment

of either

description

for 10 years

and fine

Ditto

225A Omission to app-

rehend, or sufferance

of escape, on part of

public servant' in

cases not otherwise

provided for-

Ditto Ditto Ditto Ditto Ditto

(a) in case of

intentional omission or sufferance;

Shall not

arrest

without

warrant

Ditto Bailable Ditto Imprisonment

of either

description

for 3 years, or

both class.

Court of Session, (The

words “Presidency

Magistrate” omitted,

ibid.)* * or Magistrate of

the first or fine,

(b) in case of

negligent Omission or

sufferance.

Ditto Summons Ditto Ditto Simple

imprisonment

for2 years, or

fine, or both.

(The words “Presidency

Magistrate” and by

implication the word “or”

omitted by A.O. 1949,

216

Sch.)* * * Magistrate of

the first or second class

225 B Resistance or

Obstruction

to lawful

apprehension, or es-

cape or rescue in

cases not otherwise

provided for.

May arrest

without

war-

Warrant Ditto Ditto Imprisonment

of either

description

for 6 months,

or fine, or

both

Ditto

226 Unlawful return from

a transportation.

Ditto Ditto Not

bailable.

Ditto Transportatio

n for life, and

fine, and

rigorous

imprisonment

for 3 years

before

transportation

.

Court of Session.

227 Violation of condition

of remission of

punishment.

Shall not

arrest

without

warrant.

Summons Ditto Ditto Punishment

of original

sentence, or

if part of the

punishment

has been

undergone

the residue.

The Court by which the

original offence was

triable.

228 Intentional insult or

interruption to a

public servant sitting

in any stage of a

judicial proceeding.

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable.

-

Simple

imprisonment

for 6 months,

or fine of

3,000 rupees,

or both.

The Court in which the

offence is committed,

subject to the provisions of

Chapter XXXV.

229 Personation of a juror

or assessor.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.) * * * Magistrate of

the first class.

CHAPTER XII.-OFFENCES RELATING TO COIN AND GOVERNMENT STAMPS

231 Counterfeiting, or

performing any part

of the process of

counterfeiting, coin.

May arrest

without

warrant.-

Warrant Not

bailable.

Not

compoundable.

Imprisonment

of either

description

for 7 years,

and fine.

Court of Session,

232 Counterfeiting, or

performing any part

of the process of

counterfeiting (Subs.

by A. O., 1961, Art 2

and Sch., for "the

Queen's coin" (with

effect from the 23rd

March, 1956).)

[Pakistan coin].

Ditto Ditto Ditto Ditto Transportatio

n for life, or

imprisonment

of either

description

for 10 years,

and fine

Ditto

217

233 Making buying or

selling instrument for

the purpose of coun-

terfeiting coin.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949 Sch.)* * or

Magistrate of the first class

234 Making, buying or

selling instrument for

the purpose of coun-

terfeiting (Subs. by A.

O., 1961, Art 2 and

Sch., for "the Queen's

coin" (with effect

from the 23rd March,

1956).) [Pakistan

coin].

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Court of Session.

235 Possession of

Instrument or

material for the

purpose of using the

same for counterfeit-

ing coin.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949 Sch.)* * * or

Magistrate of the first

class.

If (Subs. by A. O.,

1961, Art. 2 and Sch.,

for "Queen's coin"

(with effect from the

23rd March, 1956).)

[Pakistan coin].

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 10 years,

and fine.

Court of Session.

236 Abetting in (Subs. by

the Central Laws

(Statute Reform)

Ordinance 1960 (21

of 1960), s. 3 and 2nd

Sch. (with effect from

the 14th October,

1955), for "the

Provinces and the

Capital of the

Federation" which

had been subs. by A.

O., 1949, Arts. 3(2)

and 4, for "British

India".) [Pakistan] the

counterfeiting out of

(Subs. by the Central

Laws (Statute

Reform) Ordinance

1960 (21 of 1960), s.

3 and 2nd Sch. (with

effect from the 14th

October, 1955), for

Ditto Ditto Ditto Ditto The

punishment

provided for

abetting the

counterfeiting

of such coin

with in (Subs.

by the

Central Laws

(Statute

Reform)

Ordinance

1960 (21 of

1960), s. 3

and 2nd Sch.

(with effect

from the 14th

October,

1955), for

"the

Provinces

and the

Capital of the

Ditto

218

"the Provinces and

the Capital of the

Federation" which

had been subs. by A.

O., 1949, Arts. 3(2)

and 4, for "British

India".) [Pakistan] of

coin.

Federation"

which had

been subs. by

A. O., 1949,

Arts. 3(2) and

4, for "British

India".)

[Pakistan].

237 Import or export of

counterfeit coin,

knowing the same to

be counterfeit.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949 Sch.)* * * or

Magistrate of the first

class.

238 Import or export of

counterfeits Of (Subs.

by A. O., 1961, Art. 2

and Sch for "the

Queen's coin" (with

effect from the 23rd

March, 1956))

[Pakistan Coin],

knowing the same to

be counterfeit.

May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundable.

Transportatio

n for life, or

imprisonment

of either

description

for 10 years,

and fine.

Court of Session.

239 Having any

counterfeit coin

known to be such

when it came into

possession, and

delivering, etc., the

same to any person.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 5 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

240 The same with

respect to (Subs. by

A. O., 1961, Art. 2

and Sch for "the

Queen's coin" (with

effect from the 23rd

March, 1956))

[Pakistan coin].

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 10 years,

and fine.

Ditto

241 Knowingly delivering

to another any

counterfeit coin as

genuine which, when

first possessed, the

deliverer did not

know to be

counterfeit.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine of ten

times the

value of the

coin

counterfeited,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

242 Possession of

counterfeit coin by a

person who knew it to

be counterfeit when

he became possessed

there of.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

243 Possession of (Subs.

by A. O., 1961, Art. 2

and Sch. for "Queen's

coin" (with effect

Ditto Ditto Ditto Ditto Imprisonment

of either

description

219

from the 23rd March,

1956).) [Pakistan

coin] by a person who

knew it to be

counterfeit when he

became possessed

thereof.

for 7 years,

and fine.

244 Person employed in a

Mint causing coin to

be of a different

weight or

composition from that

fixed by law.

Ditto Ditto Ditto Ditto Ditto Court of Session.

245 Unlawfully taking

from a Mint any

coining instrument.

Ditto Ditto Ditto Ditto Ditto Ditto

246 Fraudulently

diminishing the

weight or altering the

composition of any

coin.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and

fine.

Court of Session (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.) * * or

Magistrate of the first

class.

247 Fraudulently

di- weight menihhiog

the ing the com- or

alter- Position of

(Subs. by A. O.,

1961, Art. 2 and Sch.,

for "the Queen's coin"

(with effect from the

23rd March, 1956))

[Pakistan coin].

May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundable -

Imprisonment

of either

description

for 7 Years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

248 Altering appearance

of any coin with

intent that it

shall Pass as a coin

of a different des-cription.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years

and fine.

Ditto

249 Altering appearance

of (Subs. by A. O.,

1961, Art. 2 and Sch.,

for "the Queen's coin"

(with effect from the

23rd March, 1956))

[Pakistan coin]

with intent that it

shall pass as a coin of

a different

description.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 7 years

and fine.

Ditto

250 Delivery to another of

coin Possessed with

other of coin the

knowledge that it is

altered.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 5 years,

and fine.

Ditto

251 Delivery of (Subs. by

A. O., 1961, Art. 2

Ditto Ditto Ditto Ditto Imprisonment

of either

Ditto

220

and Sch., for

"Queen's coin" (with

effect from the 23rd

March, 1956).)

[Pakistan coin]

possessed with the

knowledge that it is

altered.

description

for 10 years,

and fine.

252 Possession of altered

coin by aperson who

knew it to bealtered

when hebecame

Possessed thereof

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Ditto

253 Possession of (Subs.

by A. O., 1961, Art. 2

and Sch., for

"Queen's coin" (with

effect from the 23rd

March, 1956).)

[Pakistan coin by a

person who knew it to

bealtered when

hebecame possessed

thereof.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 5 years,

and fine.

Ditto

254 Delivery to another of

coin as genuine

which, or fine of ten

times the when first

possessed, the deli-

verer did not know to

be altered.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years,

value of the

coin.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

255 Counterfeiting a

Government stamp.

Ditto Ditto Bailable Ditto Transportatio

n for life or

imprisonment of either

description for 10 years,

and fine.

Court of Session.

256 Having possession of

an instrument or

material for the

purpose of

coupterfeiting a Gov-

ernment stamp.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Ditto

257 Making, buying or

selling instrument for

the purpose of

counterfeiting a

Government stamp.

May arrest

without

warrant

Warrant Bailable Not

compoundable.

Imprisonment

of either

description

for 7 years,

and fine

Court of Session.

258 Sale of counterfeit

Government stamp.

Ditto Ditto Ditto Ditto Ditto Ditto

221

259 Having posses tern of

counterfeit

Government stamp.

Ditto Ditto Ditto Ditto Ditto Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

260 Using as genuine a

Government stamp

known to be

counterfeit.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,or

fine, or both.

Ditto

261 Effacing any writing

from a substance

bearing a

Government stamp,

or removing from a

document a stamp

used for it with intent

to cause loss to

Government.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

or fine, or

both.

Ditto

262 Using a Govern- meat

stamp known to have

been before used.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years,

the or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of first or

second class.

263 Erasure of mark

denoting that stamp

has been used.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years or

fine, or

both.

Court of Session (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.) * * or Magistrate of the first

class.

263A Fictitious stamps Ditto Ditto Ditto Ditto Fine of 600

rupees

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class.

CHAPTER XIII.-OFFENCES RELATING TO WEIGHTS AND MEASURES

264 Fraudulent use of

false instrument for

weighing

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable -

Imprisonment

of either

description

for 1 year,

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of or the first or

second class.

265 Fraudulent use of

false weight or

measure.

Ditto Ditto Ditto Ditto Ditto Ditto

266 Being in possession

of false weights or

measures for frau-

dulent use.

Ditto Ditto Ditto Ditto Ditto Ditto

267 Making or selling false

weights or measures for fraudulent use.

Ditto Ditto Ditto Ditto Ditto Ditto

222

CHAPTER XIV.-OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY, CONVENIENCE, DECENCY AND MORALS

269 Negligently doing

any act known to be

likely to spread

infection of any

disease dangerous to

life.

May arrest

without

warrant

Summons Bailable Not

compoundable

Imprisonment

of either

description

for 6 months,

or fine, or

both.

The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.* * * Magistrate of the

first or second class.

270 Malignantly doing any

act known to be likely to spread infection of any

disease dangerous to

life.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

Ditto

271 Knowingly

disobeying any

quarantine rule.

Shall not

arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

for 6 months,

or fine, or

both.

Ditto

272 Adulterating food or

drink intended for

sale, so as to make

the same noxious.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 6 months,

or fine or

3,000 rupees,

or both.

Ditto

273 Selling any food

drink as food rd i

drink, knowing the

same to be noxious.

Ditto Ditto Ditto Ditto Ditto Ditto

274 Adulterating any drug

or medical

preparation in tended

for sale so as to lessen

its efficacy, or to

change its operation,

or to make it noxious.

Ditto Ditto Ditto Ditto Ditto Ditto

275 Offering for sale or

issuing from a

dispensary any drug

or medical

preparation known to

have been adulterat-

ed.

Ditto Ditto Ditto Ditto Ditto Ditto

276 Knowingly selling or

issuing from a dispen-

sary any drug or

medical preparation

as a different drug or

medical preparation.

Ditto Ditto Ditto Ditto Ditto Ditto

277 Defiling the water of

a public spring or

reservoir.

May arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

for 3 months,

or fine of

1500 rupees,

or both.

Any Magistrate.

223

278 Making atmosphere noxious to health

.

Shall not

arrest

without

warrant.

-

Ditto Ditto Ditto Fine of 1500

rupees

Ditto

279 Driving or riding on a

public way so rashly

or negligently as to

endanger human life,

etc.

May arrest

without

warrant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for 6 months,

or fine of

3,000 rupees,

or both.

Any Magistrate.

280 Navigating any vessel

so rashly or

negligently as to

endanger human life,

etc.

Ditto Ditto Ditto Ditto Ditto (The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * Magistrate of the

first or second class.

281 Exhibition of a false

light, mark or buoy.

Ditto Warrant Ditto Ditto Imprisonment

of either

description

for 7 years, or

fine, or both.

Court of Session.

282 Conveying for hire

any person by water,

in a vessel in such a

state, or so loaded, as

to endanger his life.

Ditto Summons Ditto Ditto "

Imprisonment

of either

description f

or 6 months,

or fine of

3,000 rupees,

or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

283 Causing danger

obstruction or injury

in any public way or

line of navigation.

Ditto Ditto Ditto Ditto Fine of 600

rupees.

Ditto

284 Dealing with any

poisonous substance

so as to endanger

human life, etc.

Shall not

arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

for 6 months,

or fine of

3,000 rupees,

or both.

Ditto

285 Dealing with fire or

any combustible

matter so as to

endanger human life,

etc.

May arrest

without

warrant.

Ditto Ditto Ditto Ditto Any Magistrate.

286 So dealing with any

explosive substance.

Ditto Ditto Ditto Ditto Ditto Ditto

224

287 So dealing with any

machinery.

Shall not

arrest

without

warrant

Ditto Ditto Ditto Ditto (The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

288 A person omitting to

guard against pro-

bable danger to

human life by the fall

of any building over

which he has a right

entitling him to pull it

down or repair it.

Ditto Ditto Ditto Ditto Ditto Ditto

289 A person omit- ting to

take order with any

animal in his possession,

so as to guard against danger to hurt man life,

or of grievous hurt, from

such animal.

May arrest

without

warrant

Summons Bailable Not

compoundable

Imprisonment

of either

description

for 6 months,

or fine of

3,000 rupees,

or both.

Any Magistrate.

290 Committing a public

nuisance.

Shall not

arrest

without

warrant.

Ditto Ditto Ditto Fine of 600

rupees

Ditto

291 Continuance of

Nuisance

after injunction

to discontinue.

May arrest Ditto Ditto Ditto Simple

imprisonment

for 6 months,

or fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class

292 Sale, etc., of obscene

books, etc.

Ditto Warrant Ditto Ditto Imprisonment

of either

description

for 3 months,

or fine, or

both.

(Subs. by the Obscene

Publications Act, 1925 (8

of 1925), s. 3, for the

original entry.) [(The

words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first class.]

293 (Subs. by the

Obscene Publications

Act, 1925 (8 of

1925), s. 3, for the

original entry.) [Sale,

etc., of obscene

objects to young

persons.]

Ditto Ditto Ditto Ditto (Subs. by the

Obscene

Publications

Act, 1925 (8

of 1925), s. 3,

for the

original

entry.)

[Imprisonme

nt of either

description

for 6

months, or

fine, or both.]

Ditto

294 Obscene songs Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 months,

(Subs. by the Code of

Criminal Procedure

(Amdt.) Act, 1923 (18 of

1923), s. 159, for the

225

or fine, or

both.

original entry.) [Any

Magistrate.]

294A Keeping a lottery

office.

Shall not

arest

without

warrant.

Summons Ditto Ditto Imprisonment

of either

description

for 6 months,

or fine, or

both.

Ditto

Publishing proposals

relating to lotteries.

Ditto Ditto Ditto Ditto Fine of 3,000

rupees

Ditto

CHAPTER XV.-OFFENCES RELATING TO RELIGION

295 Destroying,

dam- aging or

defiling a place of

worship or sacred

object with in tent to

insult the religion of any class of persons.

May arrest

without

warrant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

(This

item

was

ins. by

the

Crimi

nal

Law

Amen

dment

Act,

1927

(25 of

1927),

s. 3.)

[295A

Maliciously insulting

the religion or the

religious beliefs of

any class.

Shall not

arrest

without

warran.

Warrant Not

bailable.

Ditto Court of Session (The

words "Presidency

Magistrate" and by

implication the preceding

word or omitted by A. O.,

1949, Sch)* * *.]

296 Causing a disturbance

to an assembly

engaged in religious

worship.

(Subs. by

Act 25 of

1927, s. 3,

for the

original

entry.)

[May arrest

without

war-

(Subs. by Act

25 of 1927, s.

3, for the

original

entry.)

[Summons]

(Subs. by

Act 25 of

1927, s. 3,

for the

original

entry.)

[Bailable]

(Subs. by Act

25 of 1927, s. 3,

for the original

entry.) [Not

compoundable.]

Imprisonment

of either

description

for one year,

or fine, or

both.

(Subs. by Act 25 of 1927,

s. 3, for the original entry.)

[(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.]

297

Trespassing in place

of worship or

sepulture, disturbing

(Subs. by

the

Criminal

(Subs. by the

Criminal

Law

(Subs. by

the

Criminal

(Subs. by the

Criminal Law

Amendment

Imprisonment

of either

description

(The words "Presidency

Magistrate" and by

implication the word "or"

226

funeral with intention

to wound the feelings

or to insult the reli-

gion of any person, or

offering indignity to a

human corpse.

Law

Amendme

nt Act,

1927 (25

of 1927), s.

3, for the

original

entry.)

[May arrest

without

warrant.]

Amendment

Act, 1927

(25 of 1927),

s. 3, for the

original

entry.)

[Summons]

Law

Amendme

nt Act,

1927 (25

of 1927), s.

3, for the

original

entry.)

[Bailable]

Act, 1927 (25

of 1927), s. 3,

for the original

entry.) [Not

compoundable

for one year,

or fine, or

both.

omitted by A.O., 1949,

Sch.)* * * Magistrate of

the first or second class.

298 Uttering any word or

making any sound in

the hearing, or

making any gesture,

or placing any object

in the sight, of any

person, with intention

to wound his religious

feeling.

Shall not

arrest

without

warrant.

Ditto Compoundable. Ditto Ditto

CHAPTER XVI.-OFFENCES AFFECTING THE HUMAN BODY Of offences affecting, Life

302

303

Qatl-i-amd

(a) Qatl under ikrah-i-tam

(b) causing of ikrah-i-

tam for commission of qatl

(c) Qatl under Ikrah-i-

naqis

May arrest

without warrant

Ditto

Ditto

Warrant

Ditto

Ditto

Not bail-

Ditto

Ditto

compoundable.

Ditto

Ditto

Death, or

imprisonment

for life, or

imprisonment

upto twenty-

five years

Impriosnment

of either

description

for twenty

five years but

not less than ten years

Punishment

provided for

kind of qatl

committed.

Punishment

provided for

kind of qatl committed.

Imprisoment

of either

description

for ten years.

Court of Session.

Ditto

Ditto

227

(d) causing of ikrah-i-

naqis for commission of qatl

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

308 Qatl-i-amd not liable

to qisas

May arrest

without

warrant.

warrant Not-

biabale

Compoundable Diyat and

imprisonment

of either

description

for twenty

five years.

Court of Session

310.A Giving a female in

marriage or otherwise

in badl-i-salh

Do Do Do Not-

compoundable

Rightous

impriosnment

upto ten years

but shall not

be less than

hree years.

Cpurt of session

311 Qatl-i-amd when

waived compounded

Ditto Ditto Ditto Compoundable Death or

Imprisonment

for life or

imprion,ment

of either

description

upto fourteen

years, but

shall not be

less than ten

years, if the

offence has

been

committed in

the name or

on the pretext

of karo kari,

siyah Fari or

similar other

customs or

practices.

Ditto

312 Qatl-iamd after

compounding of

qisas, etc.

Ditto Ditto Ditto Ditto Qaisas or

diyat.

Ditto

316 Qatl Shibh-i-amd Ditto Ditto Ditto Ditto Diyat and

impriosnment

of either

description

Ditto

228

for fourteen

years.

319 Qatl-i-khata Ditto Ditto Bailable Ditto Diyat and

impriosnment

of either

description

for five years

Ditto

320 Qatl-i-khatta by rash

or neglignet driving

May arrest

without

warrant.

Warrant Bailable Compoundable Diyat and

impriosnment

of either

description

for ten years

Ditto

322 Qatl-bis-sabab Ditto Ditto Not-

bailable

Ditto Diyat Ditto

324 Attempt to qatl-i-amd Ditto Ditto Ditto Ditto Impriosnmnet

of either

description

for ten years,

but shall not

be less than

five years, if

the offence

has been

committed in

the name or

on the pretext

of karo kari,

siyah kari,or

similar other

customs or

practices and

time, qisas or

arsh in case

of hurt and

imprisoneme

nt upto seven

years

Ditto

325 Attempt to commit

suicide

Ditto Ditto Bailable Not-

compoundable

Simple

imprisonment

for 1 year, or

fine, or both

Magistrate of the first or

second class.

327 Being a thug May arrest

without

warrant

Warrant Not-

bailable

Not-

compoundable

Imprisonment

for life and

fine.

Court of session

328 Exposure of a child

under 12years of age

by parent or person

having care of it with

intention of wholly

abonding it.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for seven

year, or fine,

or both.

Court of session or

Magistrate of the first

class.

329 Concealment of birth

by secrest disposal of

dead body.

Ditto Ditto Bailable . Ditto Imprisonment

of either

description

for two year,

or fine, or

both

Magistratew of the first

class

229

334 Itlaf-i-udw Ditto Ditto Not-

Bailable

Compoundable Qaisas or

arsh and

Imprisonment

of either

description

for 10 years

Court of Session.

337A (i) shajjah-i-khafifah

(ii) shajjah-i-mudihah

(iii) shajjah-i-hashimah

(iv) shajjah-i-

muntaqqilah

(v) shajjah-i-ammah

(vi) Shajjah-i-

damighah

Shall not

arrest

without warrant

May arrest

without

warrant

Ditto

May arrest

without warrant

Ditto

Summons

Warrant

Ditto

Warrant

Ditto

Bailable

Not bailable

Ditto

Not-bailable

Ditto

Compoundable

Ditto

Ditto

Compondable

Ditto

Damon and

Imprisonment

of either

description for 2 years.

Qaisas or

arsh and

Imprisonment

of either

description

for5 years

Arsh and

impriosnment

of either

description for ten years

Arsh and

impriosnment

of either

description for ten years.

Arsh and

impriosnment

of either

description

for fourteen

years

Arsh and

impriosnment

of either

description

for fourteen

years

Magistrate of the first class

Court of session or

Magistrate of first class.

Ditto

Court of session or

Magistrate of first class

Ditto

Ditto

230

Ditto

Ditto

Ditto

Ditto

337D Jaifah Ditto Ditto Ditto Ditto Arsh and

impriosnment

of either

description

for ten years

and

punishment

provided for

itlaf-i-udw or

itlaf-i-

salahiyyat-i-

udw, if caused

Ditto

337F (i)Damiyah

(ii)Badi`ah

(iii) Mutalahumah

Shall not

arrest

without warrant

May arrest

without

warrant

Ditto

Summons

Warrant

Ditto

Bailable

Not bailable

Ditto

Ditto

Compoundable

Ditto

Ditto

Ditto

Daman and

imprisonment

of either

description for 3 years

Daman and

imprisonment

of either

description for 3 years

Daman and

imprisonment

of either

description for 3 years

Daman and

imprisonment

of either

Magistrate of the first class.

Ditto

ditto

231

(iv)Mudihah

(v)Hashimath

(vi)Munaqqilah

Ditto

May arrest

without

warrant

Ditto

Ditto

Warrant

Ditto

Not

bailable

Ditto

Compoundable

Ditto

description for 5years

Daman and

imprisonment

of either

description for 5years

Daman and

imprisonment

of either

description

for 5years

Court of session or

Magistrate of the first class.

Court of session or

Magistrate of the first lass

337G Hurt by rash or

neglignet driving

Ditto Ditto Bailable Ditto Arsh or

daman and

imprisonment

of either

description

for 5 years.

Ditto

337H (1)Hurt by rash or negligent act

(2)A rash or neglignet

act to endanger

human life or

personal safety of

others

Ditto

Shall not

arrest

without warrant

Ditto

Summons

Ditto

Ditto

Ditto

Ditto

Arsh or

daman and

imprisonment

of either

description for3 years,

Imriosnment

of either

description

for three

months or

with fine or

with both

Magistrate of the first class

Magistrate of the first class

337 I Hurt by mistake

(khata)

Shall arrest

without

warrant

Summons Bailable Compoundable Arsh or

daman for the

kind of hurt

caused.

Magistrate of the first class

337J Hurt by oision May arrest

without

warrant

Warrant Not

bailable

Compoundable Arsh or

daman,

provided for

the kind of

hurt caused

and

imprisonment

of either

description

for 10years.

Court of Session

337 K Hurt for exorting

confession etc.

May arrest

without

warrant

Warrant Not -

Bailable

Compoundable. Qaisas, arsh

or daman

provided for

the kind of

hurt caused

Court of session

232

and

imprisonment

of either

description

for 10 year

337L (a)Hurts other than

specified in sections here to before.

(b)Other hurts not

covered here to

before

Ditto

Shall not

arrest

without

warrant

Ditto

Summons

Ditto

Bailable

Ditto

Compoundable

Daman and

Imprisonment

of either

description for 7 years

Daman and

Imprisonment

of either

description

for 2years or

with both

Court of Session or

Magistrate of first class

Magistrate of the first class

337M Hurt not bailable to

qisas

Ditto Ditto Ditto Ditto Arsh to zir

and

punishment

provided for

the kind of

hurt caused

Ditto

337N Hurt where qisas

cannot be enforced

May arrest

without

warrant

Warrant Not

bailable

Ditto Arsh ta zir

and

punishment

provided for

the kind of

hurt

caused.but ta

zir shall not

be less than

one-third or

the maximum

impriosnment

provided for

the offence

where the

offender is a

previous

convict,

habitual or

hardened ,

desparate or

dangerous

criminal or if

the offence

has been

committed by

him in the

name or on

the pretext of

karo kari,

siyah kari or

similar other

Court of Session, or

Magistrate of first class

233

customs or

practices.

338A (a) Isqat-i-haml with consent

(b) Isqat-i-haml

without consent.

May arrest

without warrant

May arrest

without

warrant

Warrant

Warrant

Not bailable

Not

bailable

Compoundable

Compoundable

Imprisonment

of either

description

for 3 years

and

punishment

provided for

the kind of

hurt or death, if caused

Imprisonment

of either

description

for 10years

and

punishment

provided for

the kind of

hurt or death,

if caused

Court of Session, Magistrate of the first class

Court of Session,

Magistrate of the first class

338C Isqat-i-janin May aresst

without

warrant

Warrant Not

bailable

Compoundable Diyar ta zir

and

imprisonment

of either

description

for seven

years and

punishmenr

provided for

the kind of

hurt or death,

if caused.

Court of Session or

Magistrate of the first class

343 Wrongfully confining

for three or more

days.

Ditto Ditto Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923). s. 159.

for the original

entry.)

[Compoundable

- When

permission is

given by the

Court before

which the

prosecution is

pending.]

Imprisonment

of either

description

for 2 years, or

fine, or both.

Ditto

344 Wrongfully confining

for 10 or more days.

Ditto Ditto Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923). s. 159.

Imprisonment

of either

description

for 3 years,

and

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first or

second class.

234

for the original

entry.) [Not

compoundable.]

345 Keeping any person

in wrongful

confinement,

knowing that a writ

has been issued for

his liberation.

Shall not

arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, in

addition to

imprisonment

under any

other section.

Ditto

346 Wrongful

confinement in

secret.

May arrest

without

warrant.

Ditto Ditto (Subs. by the

Code of Criminal Procedure

(Amdt.) Act,

1923 (18 of 1923). s. 159. for

the original

entry.) [Compoundable

when permission

is given by the Court before

which the

prosecution is pending.]

Ditto Ditto

347 Wrongful

confinement for the

purpose of extorting

property, or

constraining to an

illegal act, etc.

May arrest

without

warant.

Summons Bailable (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.) [Not

compoundable.]

-

Imprisonment

of either

description

for 3 years,

and

fine,

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first or

second class,

348 Wrongful

confinement for the

purpose of extorting

confession or

information, or of

compelling restora-

tion of property, etc.

Ditto Ditto Ditto Ditto Ditto Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

Of Criminal Force and Assault

352 Assault or use of

criminal force

otherwise than on

grave provocation.

Shall not

arrest

without

warrant.

Summons Bailable Compoundable Imprisonment

of either

description

for 3 months,

or fine of

1500 rupees

or both.

Any Magistrate.

353 Assault or use of

criminal force to deter

a public servant from

discharge of his duty.

May arrest

without

warrant.

Ditto Ditto Not

compoundable.

Imprisonment

of either

description

for 2 years or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate or the first or

second class

354 Assault or use of

criminal force to a

Ditto Ditto Ditto Ditto Ditto Ditto

235

woman with intent to

outrage her modesty.

355 Assault or criminal

force with intent to

dishonour a person,

otherwise than on

grave and sudden pro-

vocation.

Shall not

arrest

without

warrant.

Summons Ditto Compoundable. Ditto Ditto

356 Assault or criminal

force in attempt to

commit theft of

property worn or

carried by a person.

May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundable.

Ditto Any Magistrate.

357 Assault or use of

criminal force in

attempt wrongfully to

confine a person.

Ditto Ditto Bailable (Subs. by the Code of Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159, for

the original entry.)

[Compoundable

when permission is given by the

Court before

which the prosecution is

pending.]

Imprisonment

of either

description

for 1 year, or

fine of 3,000

rupees, or

both.

Ditto

358 Assault or use of

criminal force on

grave and sudden

Provocation.

Shall not

arrest

without

warrant.

Summons Bailable Compoundable Simple

imprisonment

for month, or

fine of 600

rupees, or

both.

Any Magistrate.

Of Kidnapping, Abduction, Slavery and Forced Labour

363 Kidnapping May arrest

without

warrant.

Warrant (Subs. by

the Code

of

Criminal

Procedure

(Amdt.)

Act, 1923

(18 of

1923), s.

159, for

the original

entry.)

[Bailable.]

Not

compoundable.

Imprisonment

of either

description

for 7 years,

and fine

Court of Session (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

364 Kidnapping or

Abducting in order to

murder.

Ditto Ditto (Subs. by

the Code

of

Criminal

Procedure

(Amdt.)

Act, 1923

(18 of

1923), s.

159, for

the original

entry.)

[Not

bailable.]

Ditto Transportatio

n for life, or

rigorous

imprisonment

for 10 years,

and fine.

Court of Session.

236

365 Kidnapping or

abducting with intent

secretly and

wrongfully to confine

a person.

Ditto Ditto Ditto Ditto Death or

Imprisonment

of either

description

for 7 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

366 Kidnapping or

abducting a woman to

campel her marriage

or to cause her

defilement, etc.,

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 10 years,

and fine.

Court of Session.

(Ins.

by the

Indian

Penal

Code

(Amdt

.) Act,

1923

(20 of

1923),

s. 4.)

[366A

Procuration of minor

girl.

Ditto Ditto Ditto Ditto Ditto Court of Session.

366B Importation of girl

from foreign country.

Ditto Ditto Ditto Ditto Ditto Ditto

367 Kidnapping or

abducting in order to

subject a person to

grievous hurt,

slavery, etc.

Ditto Ditto Ditto Ditto Ditto Ditto

368 Concealing or

keeping in

confinement a

kidnapped person.

Ditto Ditto Ditto Ditto Punishment

for

kidnapping or

abduction.

(Subs. by the Code of

Criminal Procedure

(Amdt.) Act, 1923 (18 of

1923), s. 159, for the

original entry.) [Court of

Session, (The words

"Presidency Magistrate"

omitted by A. O., 1949,

Sch.)* or Magistrate of the

first class.]

369 Kidnapping or

Abducting child with

intent to take property

from the person of

such child.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Ditto

370 Buying or disposing

of any person as a

slave.

Shall not

arrest

without

warrant.

Ditto Bailable Ditto Ditto Court of Session.

371 Habitual dealing in

slaves.

May arrest

without

Warrant.

Ditto Not

bailable

Ditto Transportatio

n for life or

imprisonment

of either

description

for 10 years,

and fine.

Ditto

237

372 Selling or letting to

hire a minor for

purposes of

prostitution, etc.

May arrest

without

warrant.

Warrant Not

bailable

Not

compoundable.

Imprisonment

of either

description

for 10 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O. 1949 Sch.)* * or

Magistrate of the first

class,

373 Buying or obtaining

possession of a minor

for the same pur-

poses.

Ditto Ditto Ditto Ditto Ditto Ditto

374 Unlawful compulsory

labour.

(Subs. by

the Code

of Criminal

Procedure

(Amdt.)

Act, 1923

(18 of

1923), s.

159, for the

original

entry.)

[Shall not

arrest

without –

warrant.]

Ditto Bailable Compoundable. Imprisonment

of either

description

for 1 year, or

fine, or both.

Any Magistrate.

(Subs. by the Indian Penal Code (Amdt.) Act, 1925 (29 of 1925)' s. 5, for the original entries.) [Of Rape

376 Rape.

If the sexual

intercourse was by a

man with his own

wife not being under

12 years of age.

Shall not

arrest

without

warrant.

Summons Bailable Not

compoundable.

Imprisonment

of either

description

for 2 years,

Court of Session, (The

words "Chief Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * * or

District Magistrate. or fine,

or both.

If the sexual

intercourse was by a

man with his own

wife being under 12

years of age.

Ditto Ditto Ditto Ditto Transportatio

n for life, or

imprisonment

of either

description

for 10 years,

and fine.

Court of Session.

In any other case May arrest

without

warrant.

Warrant Not

bailable

Ditto Ditto Ditto

Of Unnatural Offences

377 Unnatural Of lences. May arrest

without

warrant.

Warrant Not

bailable

Not

compoundable.-

Transportatio

n for life, or

imprisonment of

either

description for 10

years, and

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O. 1949 Sch.)* * or

Magistrate of the first

class.

CHAPTFR XVII.-OFFENCES AGAINST PROPERTY Of Theft

238

379 Theft May arrest

without

warrant

Warrant Not

bailable

Not

compoundabl

e.

Imprisonment

of either

description for

3 years, or

fine, or both.

Any Magistrate.

380 Theft in a

build- without

warranting, tent or

vessel.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 7 years

And fine.

Ditto

381

381-A

Theft by clerk or

servant of property in

possession of master or employer.

Theft of a car or other

motor vehicle

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Ditto

Impriosment of

either

description for

7years and fine

Court of Session, (The

words "Presidency

Magistrate" omitted by

A. O. 1949 Sch.)* * or

second Magistrate he

first or second class.

Court Session or

Magistrate of the first

class

382 Theft, preparation

having been made for

causing death, or hurt,

or restraint, or fear of

death, or of hurt or of

restraint, in order to the

committing of such

theft, or to retiring after

committing it, or to

retaining property taken

by it.

May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundabl

e.

Rigorous

imprisonment

for 10 years,

and fine

Court of Session, (The

words "Presidency

Magistrate" omitted by

A. O., 1949, Sch.)* *

or Magistrate of the

first class.

Of Extortion

(This item has

been amended in

its application to

the Province of

Sind by the Code

of Criminal

Procedure (Sind

Amdt.) Act, 1950

(Sind Act 23 of

1950).) [384

Extortion Shall not

arrest

without

warrant-

Warrant Bailable (The words

"Presidency

Magistrate"

omitted by A.

O., 1949,

Sch.)Not

compoundable.-

Imprisonment

of either

description

for 3 years, or

fine, or

both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first or

second class.

(This item has

been amended in

its application to

the Province of

Sind by the Code

of Criminal

Procedure (Sind

Amdt.) Act, 1950

Putting or

attempting

to put in

fear of

injury, in

order to

commit

extortion.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

Ditto

239

(Sind Act 23 of

1950).) [385

(This item has

been amended in

its application to

the Province of

Sind by the Code

of Criminal

Procedure (Sind

Amdt.) Act, 1950

(Sind Act 23 of

1950).) [386

Extortion

by putting

a person

(in fear of

death or

grievous

hurt.

Ditto Ditto Not

bailable.

Ditto Imprisonment

of either

description

for 10 years,

and fine.

Court of Session.

(This item has

been amended in

its application to

the Province of

Sind by the Code

of Criminal

Procedure (Sind

Amdt.) Act, 1950

(Sind Act 23 of

1950).) [387

Putting or

at- temptin

g to put a

person in

fear of

death or

grievous

hurt in

order to

commit

extortion.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Ditto

240

388 Extortion by

threat of accusation

of an

offence punishable

with death,

transportation for life or

imprisonme

nt for 10 yeas.

Ditto Ditto Bailable. Ditto Imprisonment

of either

description

for 10 years

and fine.

Ditto

If the

offence

threatened

be an

unnatural

offence.

Ditto Ditto Ditto Ditto Transportatio

n for

life.

Ditto

389 Putting a

person in

fear of

accusation

of offence

punishable

with death,

transportat

ion for

life, or

with

imprisonm

ent for 10

years, in

order to

commit

extortion.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 10 years,

and fine.

Ditto

If the

offence be

an

unnatural

offence.

Ditto Ditto Ditto Ditto Transportatio

n for life.

Ditto

Of Robbery and Dacoity

392 Robbery May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundable.

-

Rigorous

imprisonment

for 10 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* *or

Magistrate of the first class

If

committed

on the

highway

between

sunset and

sunrise.

Ditto Ditto Ditto Ditto Rigorous

imprisonment

for 14 years,

and fine.

Ditto

393 Attempt to

commit

robbery.

Ditto Ditto Ditto Ditto Rigorous

imprisonment

for 7 years,

and fine.

Ditto

241

394 Person

voluntarily

causing

hurt in

committin

g or at

tempting

to commit

robbery, or

any other

person

jointly

concern

ed in such

robbery.

Ditto Ditto Ditto Ditto Transportatio

n for life, or

rigorous

imprisonment

for 10 years,

and fine.

Ditto

395 Datcoity Ditto Ditto Ditto Ditto Ditto Court of Session.

396 Murder in

dacoity.

Ditto Ditto Ditto Ditto Death,

transportation

for life, or

rigorous

imprisonment

for 10 years,

and fine.

Ditto

397 Robbery

or dacoity,

with

attempt to

cause

death or

grievous

hurt.

Ditto Ditto Ditto Ditto Rigorous

imprisonment

for not less

than 7 years.

Ditto

398 Attempt to

commit

robbery or

dacoity

when

armed

with

deadly

weapon.

Ditto Ditto Ditto Ditto Ditto Ditto

399 Making

preparatio

n to

commit

dacoity.

Ditto Ditto Ditto Ditto Rigorous

imprisonment

for 10 years,

and fine.

Ditto

400 Belonging

to a gang

of persons

associated

for the

purpose of

habitually

com-

mitting

dacoity.

Ditto Ditto Ditto Ditto Transportatio

n for life, or

rigorous

imprisonment

for 10 years,

and fine.

Ditto

242

401 Belonging

to a

wandering

gang of

persons

associated

for the

purpose of

habitually

committin

g thefts.

Ditto Ditto Ditto Ditto Rigorous

imprisonment

for 7 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.) * * or

Magistrate of the first

class.

402 Being one

of five or

more

persons

assembled

for the

purpose of

committin

g dacoity.

Ditto Ditto Ditto Ditto Ditto Court of Session.

Of Criminal Misappropriation of Property

403 Dishonest

misapprop

riation of

moveable

property,

or

converting

it to one's

own

use.

Shall not

arrest

warrant.-

Warrant Bailable (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (I8 of

1923), s. 159,

for the original

entry.)

[Compoundable

when

permission is

given by the

Court before

which the

prosecution is

pendding.]

Imprisonment

of either

description

for 2 years, or

fine, or both.

Any Magistrate.

404 Dishonest

misapprop

riation of

property,

knowing

that it was

in

possession

of a

deceased

person at

his death,

and that it

has not

since been

in the

possession

of any

person

legally en-

titled to it.

Ditto Ditto Ditto Not

compoundable.

Imprisonment

of either

description

for 3 years,

and

fine.

Court of Session, (The

words "Presidency

Magistrate omitted by

A.O., 949, Sch.)* * or

Magistrate of the first or

second class

243

(The figures

"405" rep. by Act

18 of 1923, s.

159.)*

If by clerk

or person

employed

by

deceased.

Ditto Ditto Ditto Ditto (The words

"Presidency

Magistrate

omitted by

A.O., 949,

Sch.)

[Imprisonme

nt of either

description

for 7 years,

and fine.]

Ditto

Of Criminal Breach of Trust

406 Criminal breach or trust. May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundable -

Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session, (The

words "Presidency

Magistrate omitted by

A.O., 949, Sch.)* * or

Magistrate of the first or

second class.

407 Criminal breach of trust

by a carrier, wharfinger,

etc.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate omitted by

A.O., 949, Sch.)* * or

Magistrate of the first

class.

408 Criminal breach of trust

by a clerk or servant.

Ditto Ditto Ditto Ditto Ditto Court of Session. (The

words "Presidency

Magistrate omitted by

A.O., 949, Sch.)* * or

Magistrate of the first or

second class.

409 Criminal breach of trust

by public servant or by

banker, merchant or

agent, etc.

Ditto Ditto Ditto Ditto Transportatio

n for life or

imprisonment

of either

description

for 10 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate omitted by

A.O., 949, Sch.)* * or

Magistrate of the first

class.

Of the Receiving of Stolen Property

411 Dishonestly

receiving stolen

property, knowing it to

be stolen.

May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundable

Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session, (The

words "Presidency

Magistrate omitted by

A.O., 949, Sch.)* * or

Magistrate of the first or

second class.

412 Dishonestly

receiving stolen

property, knowing that

it was obtained

by dacoity.

May arrest

without

warrant

Warrant Not

bailable

Not

compoundable

Transportatio

n for life, or

rigorous

imprisonment

for 10 years,

and fine.

Court of Session

413 Habitually dealing in

stolen

Ditto Ditto Ditto Ditto Transportatio

n for life, or

imprisonment

of either

description

for 10 years,

and fine.

(The words "Presidency

Magistrate omitted by

A.O., 949, Sch.)

414 Assisting in

concealment or disposal

of stolen property,

knowing it to be stolen.

Ditto Ditto Ditto Ditto Imprisonment

description

for 3 years or

fine or both.

Court of Session, (The words

“Presidency Magistrate”

omitted by A.O., 1949, Sch.)* * or Magistrate of the first or

second class.

244

Of Cheating

417 Cheating Shall not

arrest

without

warrant.

-

Warrant Bailable (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

when given by

the court before

which the

prosecution is

pending.]

Imprisonment

of either

description

for 1 year, or

permission is

fine, or

both.

(The words “Presidency

Magistrate” and by

implication the word “or”

omitted by A.O., 1949,

Sch.)* * * Magistrate of

the first or second class.

418 Cheating. a person

whose interest the

offender was bound,

either by law or by legal

contract, to

protect.

Ditto Ditto Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

. when

permission is

given by the

Court before

which the

prosecution is

pending.]

Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session, (The

words “Presidency

Magistrate” omitted by

A.O., 1949, Sch.)* or

Magistrate of the first or

second class.

419 Cheating by

personation.

May arrest

without

warrant.-

Ditto Not-

bailable

(Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

when

permission is

given by the

Court before

which the

prosecution is

pending.]

Ditto Ditto

420 Cheating and

thereby dishonest

ly inducing delivery of

property, or the making,

alteration or destruction

of a valuable security.

Ditto Ditto Bailable (Subs. by the Code

of Criminal

Procedure (Amdt.)

Act, 1923 (18 of

1923), s. 159, for

the original entry.)

[Compoundable

when permission is

given by - before

which the

prosecution is

pending.

Imprisonment

of either

description

for 7 years,

and fine.

Court of Session, (The

words “Presidency

Magistrate” omitted by

A.O., 1949, Sch.)* * or

Magistrate of the first

class.

245

Of Fraudulent Deeds and Disposition of Property

421 Fraudulent removal or

concealment of

property, etc., to prevent

distribution among

creditors.

Shall not

arrest

without

warrant.

Warrant Bailable Not

Compoundable.

-

Imprisonment

of either

description

for 2 years, or

fine or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

422 Fraudulently preventing

from being made

available for his

creditors a debt or

demand due to the

offender.

Ditto Ditto Ditto Ditto Ditto Ditto

423 Fraudulent execution of

deed of transfer con-

taining a false statement

of consideration.

Ditto Ditto Ditto Ditto Ditto Ditto

424 Fraudulent removal or

concealment petty, of

him sell; or and other

person, or assisting in

the doing thereof, or

dishonestly releasing

demand or claim to

which he is entitled.

Ditto Ditto Ditto Ditto Ditto Ditto

Of Mischief

426 Mischief Shall not

arrest

without

warrant.

Summons Bailable Compoundable.

When the only

loss or damage

caused is loss

or damage to a

private person.

Imprisonment

of either

description

for 3 months,

or fine, or

both.

Any Magistrate.

427 Mischief, and thereby

causing damage to the

amount of 50 rupees or

upwards.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

428 Mischief by killing,

poisoning, maiming or

rendering use less any

animal of the value of

10 rupees or upwards.-

May arrest

without

warrant.

Ditto Ditto Not

compoundable.

Ditto Ditto

429 Mischief by killing,

poisoning, maiming or

rendering useless any

elephant, camel, horse,

etc., whatever may be

its value or any other

animal of the value of

50 rupees or upwards,

May arrest

without

warrant.

Warrant Bailable Not

compoundable.

Imprisonment

of either

description

for 5 years, or

fine, or both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first or

second class.

430 Mischief by causing

diminution of supple of

water for agricultural

purpose,, etc.

Ditto Ditto Ditto (Subs. by the Code

of Criminal

Procedure (Amdt.)

Act, 1923 (18 of

1923), s. 159, for

the original entry.)

[Compoundable

when ermission is

given by the Court

before which the

Ditto Ditto

246

prosecution is pend-

ing.]

431 Mischief by injury to

public road, bridge,

navigable river, or

navigable channel, and

considering it im-

passable or less safe for

travelling or conveying

property.

Ditto Ditto Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.) [Not

compoundable.]

Ditto Ditto

432 Mischief by causing

inundation or

obstruction to public

drain age, attended with

damage.

Ditto Ditto Ditto Ditto Ditto Ditto

433 Mischief by destroying

or moving or rendering

less useful a lighthouse

or sea-mark, or by

exhibiting false lights.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 7 years,

or fine, or

both.

Court of Session.

434 Mischief by destroying

or moving, etc, a land-

mark fixed by public

authority.

Shall not

arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

for 1 year, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class

435 Mischief by fire or

explosive substance

with intent to cause

damage to amount of

100 rupees or upwards,

or, in case of agricul-

tural produce, 10 rupees

or upwards.

May arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

436 Mischief by fire Or

explosive

substance with intent to

destroy,

a house, etc.

May arrest

without

warrant.

warrant Not

bailable

Not

compoundable.

Transportatio

n for life, or

imprisonment

of either

description

for 10 years,

and fine

Court of Session.

437 Mischief with intent to

destroy or make unsafe

a decked vessel or a

vessel of 20 tons

burden.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 10 years,

and fine.

Ditto

438 The mischief described

in the last section when

committed by fire or

any explosive substance.

Ditto Ditto Ditto Ditto Transportatio

n for life

or imp

risonment of either

Ditto

247

description for 10 years,

and fine.

439 Running vessel ashore

with intent to commit

theft, etc.

Ditto Ditto Ditto Ditto Imprisonment of either

description for 10 years,

and fine.

Ditto

440 Mischief committed

after preparation made

for causing death, or

hurt, etc.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 5 years,

and

fine.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the class.

Of Criminal Trespass

447 Criminal trespass May arrest

without

warrant.

Summons Bailable Compoundable. Imprisonment

of either

description

for 3 months,

or fine of

1500 rupees,

or both.

Any Magistrate.

448 House-trespass. Ditto Warrant Ditto Ditto Imprisonment of either

description

for one year

or fine of

3,000 rupees,

or both.

Ditto

449 House-trespass in order

to the commission of an

offence punishable with

death.

Ditto Ditto Not

bailable.

Not

compoundable.

Transportatio

n for life, or

rigorous

imprisonment

for 10 years,

and fine.

Court of Session.

450 House-trespass in order

to the commission of an

offence punishable with

transportation for life.

Ditto Ditto Ditto Ditto Imprisonment

of either

description for 10 years,

and fine.

Ditto

451 House-trespass in order

to the commission of

offence punishable with

imprisonment.

Ditto Ditto Bailable (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

Imprisonment

of either

description

for 2 years,

permission

and fine.

Any Magistrate.

248

when given

by the Court

before whichthe

prosecution is

pending.]

If the offence is theft. May arrest

without

warrant.

Warrant Not

bailable.

(Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.) [Not

compoundable.]

Imprisonment

of either

description

for 7 years

and fine.

Court of Session, (The

words `Presidency

Magistrate omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first or

second class.

452 House trespass,

having made

preparation for causing

hurt, assault, etc.

Ditto Ditto Ditto Ditto Ditto Ditto

453 Lurking house trespass

or house-breaking.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years,

and fine.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

454 Lurking house- trespass

or house-breaking in

order to the commission

of an offence punishable

with imprisonment.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years.

and fine.

Court of Session, (The

words `Presidency

Magistrate omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first or

second class.

If the offence is theft. Ditto Ditto Ditto Ditto Imprisonment

of either

description for 10 years,

and fine.

Ditto

455 Lurking house-trespass

or house-breaking after

preparation made for

causing hurt, assault,

etc.,

Ditto Ditto Ditto Ditto Court of Session (The

words `Presidency

Magistrate omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

456 Lurking house-trespass

house-breaking by

night.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years,

and fine.

Court of Session, (The

words `Presidency

Magistrate omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first or

second class

457 Lurking house-trespass

or house breaking by

night in order to the

commission of an

offence punishable with

imprisonment.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 5 years,

and fine.

Ditto

If the offence is theft. Ditto Ditto Ditto Ditto Imprisonment

of either

description

Ditto

249

for 14 years,

and fine

250

458 Lurking house-trespass

or house-breaking by

night, after preparation

for causing hurt, etc.

Ditto Ditto Ditto Ditto Ditto Court of Session, (The

words `Presidency

Magistrate omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

459 Hurt caused whilst

committing trespass

lurking house- or

house-breaking.

Ditto Ditto Ditto Ditto Impriosment

for life or

imprisonment

of either

description

for ten years,

and fine and

shall

haveliable to

the kind of

qatl

committed by

him or hurt

caused or

attempted to

cause.

Court of Session

460 Death or grievous hurt

caused by one of several

persons jointly concern-

ed m house breaking by

night, etc.

May arrest

without

warrant.

Warrant Not

bailable

Not

compoundable

Impriosment

for life,

imprisonment

of either

description

for 10 years,

and fine and

shall

haveliable to

the kind of

qatl

committed by

him or hurt

caused or

attempted to

cause..

or Court of Session.

461 Dishonestly Breaking

open or unfastening any

closed receptacle con-

taining or supposed to

contain property.

Ditto Ditto Bailable Ditto Imprisonment

of either

description

for 2 years, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first or second class.

462 Being entrusted with

any closed receptacle

containing or supposed

to contain any property,

and fraudulently

opening the same.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 3 years, or

fine, or

both.

Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first or second class.

CHAPTER XVIII.-OFFENCES RELATING TO DOCUMENTS AND TO TRADE OR PROPERTY MARKS

465 Forgery Shall not

arrest

without

warrant.

Warrant Bailable Not

compoundable -

Imprisonment

of either

description

for 2 years, or

fine, or both.

Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first class.

466 Forgery of a record of a

Court of Justice or of a

Register of Births, etc.

kept by a public servant.

Ditto Ditto Not

bailable

Ditto Imprisonment of either

description for

7 years, and fine.

Court of Session.

251

467 Forgery of a valuable

security, will, or

authority to make or

transfer any valuable

security, or to receive

any money, etc.

Ditto Ditto Ditto Ditto Transportatio

n for life, or

imprisonment

of either

description for 10 years,

and fine.

Ditto

When the valuable

security is a promissory

note of the (Subs. by A.

O., 1937, for "G. of I".)

[Central Government].

May arrest

without

warrant.

Ditto Ditto Ditto Ditto Ditto

468 Forgery for the Purpose

of cheating.

Shall not

arrest

without

warrant.

Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and

fine.

Court of Session (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first class.

469 Forgery for the purpose

of harming the

reputation of any

person, or knowing that

it is likely to be used for

that purpose.

Ditto Ditto Bailable Ditto Imprisonment

of either

description

for 3 years,

and fine.

Ditto

471 Using as genuine a

forged document which

is known to be forged.

Shall not

arrest

without

warrant -

Warrant Bailable Not

compoundable.

Punishment

for forgery of

such

document.

Same Court as that by

which the forgery is

triable.

When the forged

document is a

promissory note of the

(Subs. by A.O., 1937,

for “G. of I.”) [Central

Government.

May arrest

without

warrant.

Ditto Ditto Ditto Ditto Court of Session.

472 Making or

counterfeiting a seal,

plate, etc., with intent to

commit a forgery

punishable un der

section 467 of the

Pakistan Penal Code, or

possessing with like

intent any such seal,

plate etc., knowing the

same to be counterfeit.

Shall not

arrest

without

warrant.-

Ditto Not-biable Ditto Transportatio

n for life, or

imprisonment

of either

description

for 7 years,

and fine.

Ditto

473 Making or

counterfeiting a seal,

plate etc., with intent to

commit a forgery

punishable otherwise

than under section 467

of the Pakistan Penal

Code, or possessing

with like intent any such

seal, plate, etc., knowing

the same to be

counterfeit.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years

and fine.

Ditto

252

474 Having possession of a

document, knowing it to

be forged, with intent to

use it as genuine; if the

document is one of the

description mentioned

in section 466 of the

Pakistan Penal Code.

Ditto Ditto Ditto Ditto Ditto Ditto

If the document is one

of the description

mentioned in section

467 of the Pakistan

Penal Code.

Ditto Ditto Ditto Ditto Transportatio

n for life, or

imprisonment

of either

description

for 7 years,

and fine.

Ditto

475 Counterfeiting a device

or mark used for

authenticating

documents described in

section 467 of the Pakistan

Penal Code, or

possessing counterfeit

marked material.

Shall not

arrest

without

warrant.

Warrant Bailable Not

compoundable.-

Transportatio

n for life, or

imprisonment

of either

description

for 7 years,

and fine.

Court of Session.

476 Counterfeiting a device

or mark used for

authenticating docu-

ments other than those

described in section 467

of the Pakistan Penal

Code, or possessing

counterfeit marked ma-

terial.

Ditto Ditto Not

bailable

Ditto Imprisonment

of either

description

for 7 years,

and

fine.

Ditto

477 Fraudulently destroying

or defacing or

attempting to destroy or

deface, or secreting, a

will etc.

Ditto Ditto Ditto Ditto Transportatio

n for life, or

imprisonment

of either

description

for 7 years,

and fine.

Ditto

477

A

Falsification of

accounts.

Ditto Ditto (Subs. by

the Code

of

Criminal

Procedure

(Amdt.)

Act, 1923

(18 of

1923), s.

159, for

the original

entry.)

[Bailable]

Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the

original

entry.)

[Imprisonme

nt of either

description

for 7 years, or

fine, or

both.]

(Subs. by the Code of

Criminal Procedure

(Amdt.) Act, 1923 (18 of

1923), s. 159, for the

original entry.) [Court of

Session, (The words

"Presidency Magistrate"

omitted by A. O., 1949,

Sch.)* * or Magistrate of

the first class.]

253

Of Trade and Property Marks

482 Using a false trade or

property mark with

intent to deceive or

injure any the Court

person.

Shall not

arrest

without

warrant.

Warrant Bailable (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

when

permission is

given by before

which the

prosecution is

pend-

ing.]

Imprisonment

of either

description

for 1 year, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

483 Counterfeiting a trade or

property mark used by

another, with intent to

cause damage or in jury.

Ditto Ditto Ditto Imprisonment

of either

description for

2 years, or fine,

or both.

Ditto Ditto

484 Counterfeiting a

property mark used by a

public servant, or any

mark used by him to

denote the manufacture,

quality, etc., of any pro-

perty.

Ditto Summons Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.) [Not

compoundable.]

Imprisonment

of either

description

for 3 years,

and fine.

Court of Session (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

485 Fraudulently making or

having possession of

any die, plate or other

instrument for

counterfeiting any

public or private

property or trade-mark.

Shall not

arrest

without

warrant.

Summons Bailable Not

Compoundable.

Imprisonment

of either

description

for 3 years, or

fine, or both.

Court of Session, (The

words “Presidency

Magistrate” omitted by

A.O., 1949, Sch.)* * or

Magistrate of the first

class.

486 Knowingly selling

goods marked with a

counterfeit property or

trade-mark.

Ditto Ditto Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

with permission

of the Court

before which

the prosecution

is pending.]

Imprisonment

of either

description

for 1 year or

fine, or both.

(The words “Presidency

Magistrate” and the by

implication the word “or”

omitted by A.O., 1949,

Sch.)* * * Magistrate of

the first or second class.

254

487 Fraudulently making a

false mark upon any

package or receptacle

containing goods, with

intent to cause it to be

believed that it contains

goods which it does not

contain, etc.

Ditto Ditto Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.) [Not

compoundable.]

-

Imprisonment

of either

description

for 3 years, or

fine, or

both.

Court of Session, (The

words “Presidency

Magistrate” omitted by

A.O., 1949, Sch.)* * or

Magistrate of he first or

second class.

488 Making use of any such

false mark.

Ditto Ditto Ditto Not

compoundable.

Ditto Ditto

489 Removing, destroying

or defacing any

property-mark with

intent to cause injury.

Ditto Ditto Ditto Ditto imprisonment

of either

description

for 1 year, or

fine, or both.

(The words “Presidency

Magistrate” and the by

implication the word “or”

omitted by A.O., 1949,

Sch.)* * * Magistrate of

the first or second class.

(This portion was ins. by the Currency Notes Forgery Act, 1899 (12 of 1899), s.3.) [Of Currency-Notes and Bank-Notes

489

A

Counterfeiting

currency-notes or

bank-notes.

May arrest

without

warrant.-

Warrant Not

bailable.

Not

compoundable.

-

Transportatio

n for life or

imprisonment

of either

description

for 10 years,

and fine.

Court of Session

489

B

Using as genuine forged

or counterfeit

currency-notes or bank

notes.

Ditto Ditto Ditto Ditto Ditto Ditto

489

C

Possession of forged or

counterfeit

currency-notes or bank

notes.

Ditto Ditto Bailable

Ditto Imprisonment

of either

description

for 7 years, or

fine, or both.

Ditto

489D

489-E

489

-F

Making or possensing

instruments or materials

for forging or

counterfeiting currency notes or bank-notes.

Making or using

documents resembling currency notes-bank.

Dishonestly issuing a

cheque for repayment of

loan e.t.c

May arrest

without warrant

Ditto

Ditto

Warrant

Ditto

Ditto

Not bailable.

Ditto

Ditto

Not compoundable.

Ditto

Compoundable

imprisoment

for life or

imprisonment

of either

description

for 10 years and fine.

Imprisoment

of either

description

for 1 year or

fine or both

Imprisoment

of either

description

for 1 year or fine or both

Court of Session.]

Magistrate of first class

Magistrate of first class

255

CHAPTER XIX.-CRIMINAL BREACH OF CONTRACTS OF SERVICE

(Entries relating

to sections 490

and 492 rep. by

the Federal Laws

(Revisions and

Declaration) Act,

1951 (26 of

1951), s. 3 and II

Sch.)*

* * * * * * *

491 Being

bound to

attend on

or supply

the wants

of a person

who is

helpless

from

youth,

unsound-

ness of

mind or

disease,

and

voluntarily

omitting to

do so.

Shall not

arrest

without

warrant.

Summons Bailable Compoundable. Imprisonment

of either

description

for 3 months,

or fine of 200

rupees, or

both.

(The words “Presidency

Magistrate” and by

implication the word “or”

omitted by A.O., 1949,

Sch.)* * * Magistrate of

the first or second class.

(Entries relating

to sections 490

and 492 rep. by

the Federal Laws

(Revisions and

Declaration) Act,

1951 (26 of

1951), s. 3 and II

Sch.)*

* * * * * * *

CHAPTER XX.-OFFENCES RELATING TO MARRIAGE

493 A man by deceit

causing a woman not

lawfully married to

him to believe that

she is law fully

married to him and to

cohabit with him in

that belief.

Shall not

arrest

without

warrant

Warrant Not

bailable

Not

compoundable.

Imprisonment

of either

description

for 10 years,

and fine.

Court of Session.

494 Marrying again

during the lifetime of

a husband or wife.

Ditto Ditto Bailable

(Sub. by the Code

of Criminal

Procedure

(Amdt.) Act,

1923 (18 of 1923), s. 159, for

the original

entry.) [Compoundable

with permission

of the Court ;before which the

prosecutionis

pending.]

Imprisonment

of either

description

for 7 years,

and fine.

(Sub. by the Code of

Criminal Procedure

(Amdt.) Act, 1923 (18 of

1923), s. 159, for the

original entry.) [Court of

Session, (The words

"Presidency Magistrate"

omitted by A. O., 1949,

Sch.)* * or Magistrate of

the first class.]

256

495 Same offence with

concealment of the

former marriage from

the person with whom

subsequent marriage

is contracted.

Ditto Ditto (Sub. by

the Code

of

Criminal

Procedure

(Amdt.)

Act, 1923

(18 of

1923), s.

159, for

the original

entry.)

[Bailable]

(Sub. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.) [Not

compoundable.]

Imprisonment

of either

description

for 10 years,

and fine.

(Sub. by the Code of

Criminal Procedure

(Amdt.) Act, 1923 (18 of

1923), s. 159, for the

original entry.) [Court of

Session.]

496 A person with

fraudulent intention

going through the

ceremony of being

married knowing that

he is not there by law

fully married.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 7 years,

and fine.

Ditto

497 Adultery Shall not

arrest

without

- warrant.

Warrant Bailable Compoundable.

-

Imprisonment

of either

description

for 5

years,

or fine, or

both.

Court of Session (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

498 Enticing or taking

away or detaining

with a criminal intent

a married woman.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, or

fine, or both

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

CHAPTER XXI.-DEFAMATION

500 Defamation Shall not

arrest

without

warrant.

Warrant Bailable Compoundable.

-

Simple

imprisonment

for 2 years, or

fine, or both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.)* * or

Magistrate of the first

class.

501 Printing or engraving

matter knowing it to

be defamatory.

Ditto Ditto Ditto Ditto Ditto Ditto

502 Sale of printed or engraved substance

containing defamatory

matter, knowing it to contain such matter.

Ditto Ditto Ditto Ditto Ditto Ditto

CHAPTER XXII.-CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE

504 Insult intended to

provoke a breach of

the peace.

Shall not

arrest

without

warrant.

-

Warrant Bailable Compoundable. Imprisonment

of either

description

for 2 years, or

fine, or both.

Any Magistrate.

505 False statement,

rumour, etc.

circulated with intent

to cause mutiny or

offence against the

public peace.

Ditto Ditto Not

bailable.

Not

compoundable.

Ditto (The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first

class.

257

258

506 Criminal

intimidation.

Ditto Ditto Bailable Compoundable. Ditto (Subs. by the Amending

Act, 1903 (1 of 1903), Sch.

II, Part II, for "Ditto".)

[(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.]

If threat be to cause

death or grievous

hurt, etc.

Ditto Ditto Ditto Not

compoundable.

Imprisonment

of either

description

for 7 years, or

fine, or

both.

Court of Session, (The

words "Presidency

Magistrate" omitted by A.

O., 1949, Sch.) * * or

Magistrate of he first class.

507 Criminal intimidation

by anonymous

communication or

having taken

precaution to conceal

whence the threat co-

mes.

Ditto Ditto Ditto Ditto Imprisonment

of either

description

for 2 years, in

addition to

the

punishment

under above

section.

Ditto

508 Act caused by

inducing a person to

believe that he will be

rendered an object of

Divine displeasure.

Ditto Ditto Ditto (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

.]

Imprisonment

of either

description

for 1 year, or

fine, or

both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted, ibid.)* * *

Magistrate of the first or

second class.

509 Uttering any word or

making any gesture

intended to insult the

modesty of a woman, etc.

Shall not

arrest

without

warrant.

Warrant Bailable (Subs. by the

Code of

Criminal

Procedure

(Amdt.) Act,

1923 (18 of

1923), s. 159,

for the original

entry.)

[Compoundable

. when

permission is

given by the

Court before

which the

prosecution is

pending.]

Simple

imprisonment

for1 year, or

fine, or both.

(The words "Presidency

Magistrate" and by

implication the word "or"

omitted by A. O., 1949,

Sch.)* * * Magistrate of

the first class.

510 Appearing in a Public

place etc., in a state of

intoxication, and

causing annoyance to

any person.

Ditto Ditto Ditto (Subs. by the

Code of Criminal

Procedure (Amdt.) Act,

1923 (18 of

1923), s. 159, for the original

entry.) [Not

compoundable.]-

Simple

imprisonment

for 24 hours,

or fine of 10

rupees, or

both.

Any Magistrate.

259

CHAPTER XXIII-ATTEMPTS TO COMMIT OFFENCES

511 Attempting to commit

offences punishable

with transportation or

imprisonment, and in

such attempt doing

any

act Towards

the commission of the

offence.

According

as the

offence is one in

respect of

which the

police may

arrest

without

warrant or

not.

According as

the offence is one in

Respect of

which a

summons or warrant shall

ordinarily

is- sue.

According

as the

offence

contemplat

ed by the

offender is bail-

able or not.

Compoundable

when the offence

attempted is

compound-

able. -

Transportatio

n or

imprisonment

not exceeding

half of the

longest term,

and of any

description

provided for

the

offence,- or

fine, or both.

The Court by which the

offence attempted is

triable.

OFFENCES AGAINST OTHER LAWS

If punishable with

death, transportation

or imprisonment for 7

years or upwards.

May arrest

without

warrant.

Warrant Not

bailable.

Not

compoundable.

Ditto Court of Session.

If punishable with

imprisonment

for 3 ears and

upwards, but less than

7.

Ditto Ditto Except in

cases

under the

Arms Act,

1878,

section 19,

which shall

be

bailable.

Ditto Ditto Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first class.

If punishable with

imprisonment for 1

year and upwards, but

less than 3 years.

Shall not

arrest

without

warrant.

Summons Bailable Ditto Ditto Court of Session, (The

words "Presidency

Magistrate" omitted,

ibid.)* * or Magistrate of

the first or second class.

If punishable with

imprisonment for less

than 1 year, or with

fine only.

Ditto Ditto Ditto Ditto Ditto Any Magistrate.

______________________

SCHEDULE III

(See Section 36)

Ordinary Powers of Provincial Magistrates

1. Ordinary Powers of a Magistrate of the Third Class

(1) Power to arrest or direct the arrest of, and to commit to custody, a person committing

an offence in his presence, Section64.

(2) Power to arrest, or direct the arrest in his presence of, an offender Section 65.

(3) Power to endorse a warrant, or to order the removal of an accused person arrested

under a warrant, Sections 83,84 and 86.

260

(4) Power to issue proclamation in cases judicially before him, Section 87.

(5) Power to attach and sell property 1[and to dispose of claims to attached property] in

cases judicially before him, Section 88.

(6) Power to restore attached property, Section 89.

(7) Power to require search to be made for letters and telegrams, Section 95.

(8) Power to issue search-warrant, Section 96.

(9) Power to endorse a search-warrant and order delivery of thing found, Section 99. 2* * * * *

(13) Repealed

(14) Power to authorise detention not being detention in the custody of the police of a

person during a police-investigation, Section 167.

(14-A) Power to postpone issue of process and inquire into case himself, Section 202.

(15) Power to detain an offender found in Court, Section 351. 3* * * * *

(16) Repealed.

(17) Power to apply to Session Judge to issue commission for examination of witness,

Section 506 (2).

(18) Power to recover forfeited bond for appearance before Magistrate's Court, Section

514 and to require fresh security, Section 514-A.]

(l8-a) Power to make order as to custody and disposal of property pending inquiry or trial, Section

516-A.

(19) Power to make order as to disposal of property, Section 517.

(20) Power to sells 4* property of a suspected character, Section 525.

(21) Power to require affidavit in support of application, Section 539-A.

(22) Power to make local inspection Section 539-B.

II. Ordinary Powers of a Magistrate of the Second Class

(1) The ordinary powers of a Magistrate of the Third Class.

(2) Power to order the police to investigate an offence in cases in which the Magistrate

has jurisdiction to try or 5[send for trial to the Court of Session or the High Court], Section 155. 6[(3) power to postpone, issue of process and to inquire into a case or direct investigation,

Section 202. 7* * * * *

III. Ordinary Power of a Magistrate of the First Class

(1) The ordinary powers of a Magistrate of the Second Class.

(1 -a) Power to direct warrant to land holders, etc., Section 78.

(1-ab) Power to issue search warrant otherwise than in course of an inquiry, Section 98.

1 Ins. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923). 2 Item 13 rep. ibid., s. 160. 3 Item 16 rep. by the Repealing and Amending Act, 1925, (37 of 1925), s.3 and Sch. II. 4 The word “perishable” rep. by Act 18 of 1923, s. 160. 5 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for “commit for trail”. For enforcement of this amendement in the

Provinces, see, para 2 of footnote 3, on p.40, supra. 6 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 160, for the Original item. 7 Item (4) rep., ibid.

261

(2) Power to issue search warrant otherwise than in course of inquiry, Section 98.

(3) Power to issue search warrant for discovery of persons wrongfully confined, Section 100.

(3-a) Power to require security for keeping peace, Section 107.

(3-ab) Power to require security for good behaviour from persons disseminating seditious matter,

Section 108.

(3-ac) Power to require security for good behaviour, Section 109.

(3-ad) Power to require security for good behaviour from habitual offenders, Section 110.

(3-ae) Power to discharge sureties Section 126.

(3-f) Power to acquire security, for un-expired period of bond, Section 126 A.

(4) Power to require security to keep the peace, section 107.

(5) Power to require security for good behaviour, Section 109.

(6) Power to discharge sureties, Section 1[126-A].

(6-a) Power to make orders as to local nuisances, Section 133.

(6-ab) Power to make order to prohibit repetition or continuance of public nuisance,

Section 143.

(6-ac) Power to make orders, etc., in possession cases, Sections 145,146 and 147.

(7) [Omitted by Law Reforms Ordinance, 1972] 2[(7-a). Power to record statements and confessions during a police investigation, Section

164.

(7-aa) Power to authorise detention of a person in the custody of the police during a police

investigation Section 167.

(7-b) Power to hold inquests, Section 174.]

(8) Power to commit for trial, Section 206.

i3[(8-a) Power to hold inquests, Section 174.

(18-ab) Power to take cognisance of offences, Section 190.

(9) Power to stop proceedings when no complainant, Section 249 3* * * * *

(10) Omitted.

(12) Power to recover penalty on forfeited bond, Section 514. (12-a) Power to require fresh security, Section 514-A.

(12-ab) Power to dispose property where no claimant, Section 524.

12-ab Ins. by Ordinance, XXXVII of 2001, dt. 13-8-2001

(12-b) [Omitted by Ordinance XXXVII of 2001, dt. 13-8-2001.}

(13) Power to make order as to first offenders, Section 562.

(14) Power to order released convicts to notify residence Section 565.

IV. Omitted by Ordinance, XXXVII of 2001, dt. 13-8-2001.

1 Subs. ibid., for “126” 2 Ins., ibid. 3 Cls. (9a) and (10) omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch.

262

V. Omitted by Ordinance, XXXVII of 2001, dt. 13-8-2001.

SCHEDULE IV

(See Sections 37 and 38)

ADDITIONAL POWERS WITH WHICH PROVINCIAL MAGISTRATES MAY BE

INVESTED.

PART I

POWERS WITH WHICH A MAGISTRATE OF THE FIRST CLASS MAY BE INVESTED. BY

THE PROVINCIAL GOVERNMENT.

1. Power to try cases under section 124A of the Pakistan Penal Code

2. (2) to (6) Omitted by Ordinance XXXVII

of 2001, dt. 13-8-2001.

7. Power to try summarily, section 260

8. Power to pass sentence on proceedings recorded bt a Magistrate of the second or third class,

section 149

POWERS WITH WHICH A MAGISTRATE OF THE SECOND CLASS MAY BE INVESTED. BY

THE PROVINCIAL GOVERNMENT

(1) Power to record statements and confessioins during a police investigation, section 164

(2) Power to authorize detention of a person in the custody of the police during a police

investigation, section 167.

(3) power to take cognizance of offences upon police report, section 190.

(4) power to take cogniznce of offences without complaint, section 190.

263

POWERS WITH WHICH A MAGISTRATE OF THE THIRD CLASS MAY BE INVESTED. BY

THE PROVINCIAL GOVERNMENT

(1) Power to take cognizance of offences upon compliant, section 190

(2) Power to take cognizance of offences upon police report, section 190.

PART – II [Omitted by Ordinance XXXVII of 2001, dt. 13-8-2001].

_________________

SCHEDULE - V

(See Section 555)

FORMS

1-Summons to an Accused Person

(See Section 68)

To

of

WHEREAS your attendance is necessary to answer to a charge of (state shortly the

offence charged), you are hereby required to appear in person (or by pleader, as the case may be)

before the (Magistrate).

of on the day of Herein fail not.

Dated this day of , , 18.

(Seal) (Signature)

___________________________

II. Warrant of Arrest

(See Section 75)

To (name and designation of the person or persons who is or are to execute, the warrant).

WHEREAS of stands charged with the offence of (state the offence),

you are hereby directed to arrest the said , and to produce him before me. Herein fail

not.

Dated this day of ,18

(Seal) (Signature)

(See Section 76)

This warrant may be endorsed as follows:-

If the said …………. shall give bait himself in the sum of ……. with one surety in the sum

of ……. (or two sureties each in the sum of …… ) to attend before me on the ….. day of

and to continue so to attend until otherwise directed by me, he may be released.

Dated this day of , 18.

264

(Signature)

III. Bond and bail-bond after arrest under a warrant

(See Section 86)

I, (name), of being brought before the Magistrate of my appearance to answer to the charge of

……. , do hereby bind myself to attend in the Court of ….. on the day of …. next, to answer to

the said charge, and to continue so to attend until otherwise directed by the Court and, in case of my

making default herein, I bind myself to forfeit, to Government the sum of rupees.

Dated this day of ,18

(Signature}

I do hereby declare myself surety for the above named of that he shall attend before

in the Court of …… off the ….. day of …… next, to answer to the charge on which he has

been arrested, and shall continue so to attend until otherwise directed by the Court; and,

in case of his making default therein, I bind myself to forfeit to Government.

Dated this day of ,18

(Signature)

___________________

IV. Proclamation requiring the appearance of a person accused

(See Section 87)

WHEREAS complaint has been made before me that (name, description and address) has committed (or

is suspected to have committed) the offence of ……, punishable under section …….of the Pakistan Penal

Code, and it has been returned to a warrant of arrest thereupon issued that the said (name) cannot be found,

and whereas it has been shown to my satisfaction that the said (name) has absconded (or is concealing

himself to avoid the service of the said warrant);

Proclamation is hereby made that the said …… of ….. is required to appear at (place) before this Court

(or before me) to answer the said complaint on the day of .

Dated this day of ,18

(Seal) (Signature)

___________________

V. Proclamation Requiring the Attendance of Witness

(See Section 87)

WHEREAS complaint has been made before me that (name, description and address), has committee (or

is suspected to have committed) the offence of (mention the offence concisely) and a warrant has been

265

issued to compel the attendance of (name, description and address of witness), before this Court to be

examines touching the matter of the said complaint; and whereas it has been returned to the said

warrant that the said [name of witness) cannot be served, and it has been shown to my satisfaction

that he has

absconded (or is concealing himself to avoid the service of the said warrant);

Proclamation is hereby made that the said (name) is required to appear at (place) before the Court

on the day of next at o'clock

to be examined touching , the offence complained of.

Dated this day of ,18

(Seal) (Signature) __________________________

VI. Order of Attachment to compel the attendance of a Witness.

(See Section 88)

To the Police-officer in charge of the Police station:

WHEREAS a warrant has been duly issued to compel the attendance of (name, description and

address) to testify concerning a complaint pending before this Court, and ft has been returned to

the said warrant that it cannot be served; and whereas it has been shown to my satisfaction that he

has absconded (or is concealing himself to avoid the service of the said warrant); and thereupon a 1[proclamation has been or is being duly issued and published requiring the said ………. to appear

and give evidence at the time and place mentioned therein. 2* * * ;

This is to authorize and require you to attach by seizure the movable properly belonging to the said

……. to the value of rupees ……… which you may find within the District of ….. and to hold the

said property under attachment pending the further order of this Court, and to return this warrant

with an endorsement certifying the manner of its execution. Dated

this day of ' 18 .

(Seal.) (Signature)

____________________

Order of attachment to compel the appearance of a person accused

(See Section 88)

To (name and designation of the person or persons who is or are to execute the warranty)

WHEREAS complaint has been made before me that (name, description and address) has

committed (or is suspected to have committed) the offence of ……. Punishable under section of

the Pakistan Penal Code, and it has been returned to, a warrant of arrest thereupon issued that the

said (name) cannot be found; and whereas it has been shown to my satisfaction that the said (name)

1 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 162, for “Proclamantion was duly issued”. 2 The words “and he failed to appear” rep., ibid.

266

has absconded (or is concealing himself to avoid the service of the said warrant), and thereupon a

Proclamation has been or is being

duly issued and published requiring the said ………. to appear to answer the said charge within

…….. days; and whereas the said ……. is possessed of the following property other than land

paying revenue to, Government in the village (or town) of …….. , in the District of ……... viz.,

……., and an order has been made for the attachment thereof;

You are hereby required to attach the said property by seizure, and to hold the same under attachment

pending the further order of this Court, and to return this warrant with an endorsement certifying the manner

of its execution.

Dated this day of ' 18 .

(Seal.) (Signature)

Order authorizing an attachment by the District Officer (Revenue) as Collector

(See Section 88)

To the District Officer (Revenue) of

WHEREAS complaint has been made before me that (name, description and address) has committed (or is

suspected to have committed) the offence of ……. , punishable under section …….. of the Pakistan Penal

Code, and it has been returned to a warrant of arrest thereupon issued that the said (name) cannot be found;

and whereas it has been shown to my satisfaction that the said (name) has absconded (or is concealing

himself to avoid the service of the said warrant) and thereupon a 1[Proclamation has been or is being duly

issued and published requiring the said to appear to answer the said charge within days, 2* * *; and

whereas the said is possessed of certain land paying revenue to Government in the village (or town) of in

the District of ……….

You are hereby authorized and requested to cause the said land to be attached, and to be held under

attachment pending the further order of this Court, and to certify without delay what you may have done in

pursuance of this order.

Dated this day of ' 18 .

(Seal.) (Signature)

_____________________

VII. Warrant in the first instance to bring up a witness

(See Section 90)

To (name and designation of the Police-Officer or other person or persons who is or are to execute, the

warrant)

1 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 162, for “Proclamation was duly issued”. 2 The words “but he has not appear” rep., ibid.

267

WHEREAS complaint has been made before me that of has (or is suspected to have) committed the offence

of (mention the offence concisely), and it appears likely that (name and description of witness) can give

evidence concerning the said complaint; and where as I have good and sufficient reason to believe that he

will not attend as a witness on the hearing of the said complaint unless compelled to do so;

This is to authorise and require you to arrest the said (name) and on the day of to bring him before his Court,

to be examined touching the offence complained of. Given under my hand and the seal of this Court, the

day of . , 18.

(Seal.) (Signature)

_____________________

VIII. Warrant to search after information of a particular offence

(See Section 96)

To (name and designation of the Police-Officer or other person or persons who is or are to execute

the warrant)

WHEREAS information has been laid (or complaint has been made) before me of the commission

(or suspected commission) of the offence of (mention the offence concisely), and it has been made

to appear to me that the production of (specify the thing clearly) is essential to the inquiry now

being made (or about to be made) into the said offence or suspected offence;

This is to authorize and require you to search for the said (the thing specified) in the (describe the

house or place or part thereof to which the search is to be confined) and, if found to produce the

same forthwith before this Court; returning this warrant, with an endorsement certifying what you

have done under it, immediately upon its execution. Given under my hand and the seal of .the

Court, this

Dated this day of ' 18 .

(Seal.) (Signature)

IX. - Warrant to search suspected Place of Deposit

(See Section 98)

To (name and designation of a Police-Officer above the rank of a Constable)

WHEREAS information has been laid before me, and on due inquiry thereupon had I have been

led to believe that the (describe the house or other place) is, used as a place for the deposit (or

sale) of stolen property (or if for either of the other purposes expressed in the section, state the

purpose in the words of the section);-

This is to authorize and require you to enter the said house (or other place) with such assistance as

shall be required, and to use if necessary, reasonable force for that purpose, and to search every

268

part of the said house (or other place or if the search is to be confined to a part, specify the part

clearly) and to seize and take possession of any property (or documents, or stamps, or seals, or

coins 1[or obscene objects,] as the case may be) Add (when the case requires it) and also of any

instruments and materials which you may reasonably believe to be kept for the manufacture of

forged documents, or counterfeit stamps, or false seals, or counterfeit coin (as the case may be),

and forthwith to bring before this Court such of the said things as may be taken possession of

returning this warrant, with an endorsement certifying what you have done under it, immediately

upon its execution.

Given under my hand and the seal of the Court, this

Dated this day of ' 18 .

(Seal.) (Signature)

________________

X. Bond to keep the peace

(See Section 107)

WHEREAS I (name) inhabitant of (place), have been called upon to enter into a bound to keep the

peace for the term of 2[or until the completion of the inquiry in the matter of now pending in the

Court of I hereby bind myself not to commit a breach of the peace, or do any act that may probably

occasion a breach of the peace, during the said term or until the completion of the said inquiry,

and in case of my making default therein, I hereby bind myself to forfeit to 3[Government], 4* *

* the sum of rupees ……………..

Dated this day of ' 18 .

(Seal.) (Signature)

___________________

XI - Bond for Good Behaviour

(See Sections 108, 109 and 110)

WHEREAS I (name) inhabitant of (place), have been called upon to enter into a bond to be of

good behaviour to 5[Government and to all the citizens of Pakistan] for the term of (state the

period) 6[or until the completion of the inquiry in the matter of ……. now pending in the Court of

….] I hereby bind myself to be of good behaviour to 7[Government and to all the citizens of

1 Ins. by the Obscene Publications Act, 1925 (8 of 1925), s.2 2 Ins. by the Code of Criinal Procedure (Amdt.) Act, 1923 (18 of 1923). 3 Subs. by A.O., 1961, Art. 2 and Sch., for “Her Majesty the Queen” (With effect from the 23rd March, 1956). 4 The words “Empress of India” omitted by A.O., 1949, Sch. 5 Subs. by A.O., 1961, art. 2 and Sch., for “Her Majesty the Queen”, * * *, and to all Her subject” (with effect from the 23rd M arch, 1956). The

asterisks represent the omission of the words “Empress of India” by A.O., 1949, Sch. 6 Ins. by Act 18 of 1923, s. 162. 7 Subs. by A.O., 1961, Art. 2 and Sch., for “Her Majesty and to all Her Subject” (With effect from the 23rd March, 1956).

269

Pakistan during the said term or until the completion of the said inquiry;]and in case of my making

default therein, I bind myself to forfeit to 1[Government] the sum of rupees ………….

Dated this day of ' 18 .

(Seal.) (Signature)

(Where bond with sureties is to be executed, add " We do not hereby declare ourselves sureties for

the above named that he will be of good behaviour to Government and to all the citizens of Pakistan

during the said term or until the completion of the said inquiry; and in the case of his making

default therein, we bind ourselves, jointly and severally, to forfeit to Government the sum of rupees

Dated this day of ' 18 .

(Seal.) (Signature)

XII.-Summons on information of probable Breach of the Peace

(See Section 114)

To

of

WHEREAS it has been made to appear to me by credible information that {state the substance of the

information}, and that you are likely to commit a breach of the peace (or by which act a breach of the peace

will probably be occasioned), you are hereby requiredto attend in person (or by a duly authorized agent) at

the office of the Magistrate of on the day of ,19 at ten o'clock in the forenoon, to show cause why you

should not be required to enter into a bond for rupees when sureties are required, add and also to give

sureties by the bond of one (or two, as the case may be) surety (or sureties) in the sum of rupees (each if

more than one) that you will keep the peace for the term of

Given under my hand and the seal of the Court this

Dated this day of ' 18 .

(Seal.) (Signature)

XlII—Warrant of Commitment on Failure to find Security to keep the Peace

(See Section 123)

To the Superintendent (or Keeper) of the Jail at ………………….

WHEREAS (name and address) appeared before me in person (or by his authorized agent) on the day of in

obedience to a summons calling upon him to show cause why he should not enter into a bond for rupees

with one surety or a bond with two sureties each in rupees , that he, the said (name), would keep the peace

for the period of months; and whereas an order was then made requiring the said (name) to enter into and

find such security (state the security ordered when it differs from that mentioned in the summons), and he

has failed to comply with the said order;

1 Subs. ibid., for “Her Majesty” (with effect from the 23rd March, 1956).

270

This is to authorize and require you, the said Superintendent (or Keeper), to receive the said (name), into

your custody, together with this warrant, and him safely to keep in the said Jail for the said period of (term

of imprisonment) unless he shall in the meantime 1[be lawfully ordered to be released and to return this

warrant with an endorsement certifying the manner of its execution. Given under my hand and the Court,

this day

of ' 18 .

(Seal.) (Signature)

______________

XIV - Warrant of commitment of Failure to find Security for Good Behaviour

(See Section 123)

To the Superintendent (or Keeper) of the Jail at ……………..

Whereas it has been made to appear to me that (name and description) has been and is lurking within the

district of having no ostensible means of subsistence (or, and that he is unable to give any satisfactory

account of himself); -

or

Whereas evidence of the general character of (name and description) has been adduced before me and

recorded, from which it appears that he is an habitual robber (or, housebreaker, etc., as the case may be);

And Whereas an order has been recorded stating the same and requiring the said (name) to furnish

security for his good behaviour for the term of (state the period) by entering into a bond with one surety

(or two or more sureties, as the case may be), himself for rupees ……….., and the said surety (or each of

the said sureties) for rupees ….. , and the said (name) has failed to comply with the said order and for

such default has been adjudged imprisonment for (state the term) unless the said security be sooner

furnished;

This is to authorize and require you, the said Superintendent (or Keeper) to receive the said (name) into

your custody, together with this warrant, and him safely to keep in the said Jail for the said period of

(term of imprisonment) unless he shall in the meantime 2[be lawfully ordered to be released and to return

this warrant with an endorsement certifying the manner of its execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

____________________

XV—Warrant to discharge a Person imprisoned on Failure to give security

(See Sections 123 and 124)

To the Superintendent (or Keeper) of the Jail at (or, other officer in whose custody the person is).

1 Subs. by the Amending Act, 1903 (1 of 1903), Sch. II, Part II, for “comply with the said order by himself and his surety (or sureties), entering

into the said bodn, in which case the same shall be received and the said (ame) released”. 2 Subs. by the Amending Act, 1903 (1 of 1903), Sch. II, Part II, for “comply with the said order by himself and his surety (or sureties), entering

into the said bond, in which case the same shall be received and the said (name) released”.

271

WHEREAS (name and description of prisoner) was committed to your custody under warrant of the

Court, dated the day …. of ….. and has since duly given security under section ….. of the Code of

Criminal Procedure;

or

and there have appeared to me sufficient grounds for the opinion that he can be released without hazard to

the community;

This is to authorize and require you forthwith to discharge the said (name) from your custody unless he is

liable to be detained for some other cause.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

__________________

XVI.—Order for the Removal of Nuisances

(See Section 133)

To (name, description and address).

WHEREAS it has been made to appear to me that you have caused an obstruction for nuisance) to persons

using the public roadway (or other public place) which, etc., (describe the road or public place), by,

etc. (state what it is that causes the obstruction or nuisance), and that such obstruction (or nuisance still

exists);

or

Whereas it has been made to appear to me that you are carrying on as owner, or manager, the trade or

occupation of (state the particular trade or occupation and the place where it is carried on), and that the

same is injurious to the public health (or comfort) by reason (state briefly in what manner the injurious

effects are caused), and should be suppressed or removed to a different place;

Whereas it has been made to appear to me that you are the owner (or are in possession of or have the control

over) a certain tank (or well or excavation) adjacent to the public way, (describe the thoroughfare); and that

the safety of the public is endangered by reason of the said tank (or well or excavation) being without a

fence (or insecurely fenced);

or

Whereas, etc., etc. (as the case may be),

I do hereby direct and require you within (state the time allowed) to (state what is required to be done to

abate the nuisance) or to appear at in the Court of ……. on the day of next, and to show cause why this

order should not be enforced.

or

I do hereby direct and require you within (state the time allowed) to cease carrying on the said trade or

occupation at the said place, and not again to carry on the same, or to remove the say trade from the place

where it is now carried on, or to appear, etc.;

or

I do hereby direct and require you within (state the time allowed) to put up a sufficient fence (state the

kind of fence and the part to be fenced); or to appear etc.;

or

272

I do hereby direct and require you, etc., etc, (as the case may be).

Given under my hand and the seal of the Court this day

of ' 18 .

(Seal.) (Signature)

______________________

XVII.—-Magistrate's Order constituting a Jury

(See Section 138)

WHEREAS on the day of ,19 an order was issued to (name) requiring him (state the effect of the order),

and whereas the (name) has applied to me, by a petition, bearing date the day of for an order appointing a

Jury to try whether the said recited order is reasonable and proper I do hereby appoint (the names, etc., of

the five or more Jurors) to be the Jury to try and decide the said question, and do require the said Jury to

report their decision within days from the date of this order at my office.

Given under my hand and the seal of the Court, this day

of ‘ 18 .

(Seal.) (Signature)

XVIII.—Magistrate's Notice and Peremptory Order after the Finding by a Jury.

(See Section 140)

To (name, description and address):

I hereby give you notice that the Jury duly appointed on the petition presented by you on the day

of have found that the order issued on the day of requiring you (state substantially the requisition

in the order) is reasonable and proper. Such order has been made absolute, and I hereby direct and

require you to obey the said order within (state the time allowed), on peril of the penalty provided

by the Pakistan Penal Code for disobedience thereto.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

_________________________

XIX.— Injunction to provide against Imminent Danger pending Inquiry by Jury.

(See Section 142)

To (name, description and address).

273

Whereas the inquiry by a Jury appointed to try whether my order issued on the day of , 18 , is

reasonable and proper is still pending, and it has been made to appear to me that the nuisance

mentioned in the said order is attended with so imminent serious danger to the public as to render

necessary immediate measures to prevent such danger, I do hereby, under the provisions of Section

142 of the Code of Criminal Procedure, direct and enjoin you forthwith to (state plainly what is

required to be done as a temporary safeguard), pending the result of the local inquiry by the Jury.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

XX.— Magistrate's Order Prohibiting the Repetition, etc. of a nuisance

(See Section 143)

To (name, description and address).

Whereas it has been made to appear to me that, etc. (state the proper recital, guided by Form No.

XVI or Form No- XXI, (as the case may be). I do hereby strictly order and adjoin you not to repeat

the said nuisance by again placing or causing or permitting to be placed, etc. (as the case may be).

Given under my hand and the seal of the Court, this day

of ‘ 18 .

(Seal.) (Signature)

XXI.—Magistrate's Order to prevent Obstruction, Riot, etc.

(See Section 144)

To (name, description and address).

Whereas it has been made to appear to me that you are in possession (or have the management) of (describe

clearly the property), and that, in digging a drain on the said land, you are about to throw or place a portion

of the earth and stones dug up upon the adjoining public road, so as to occasion risk of obstruction to

persons using the road;

or

Whereas, it has been made to appear to me that you and a number of other persons (mention the class of

persons) are about to meet and proceed in a religious procession along with public street, etc. (as the case

may be), and that such procession in likely to lead to a riot or an affray;

or

Whereas, etc., etc. (as the case may be);

I do hereby order you not to place or permit to be placed any of the earth or stones dug from land on any

part of the said road;

or

I do hereby prohibit the procession passing along the said street, and strictly warn and enjoin you not to

take any part in such procession (or as the case recited may require).

Given under my hand and the seal of the Court, this day

274

of ' 18 .

(Seal.) (Signature)

_______________

XXII.-Magistrate's Order declaring Party entitled to retain Possession of Land, etc.,

in Dispute

(See Section 145)

It appearing to me on the grounds duly recorded, that a dispute, likely to induce a breach of peace, existed

between (describe the parties by name and residence or residence only if the dispute be between bodies of

villagers) concerning certain (state concisely the subject of dispute), situate within the local limits of my

jurisdiction, all the said parties were called upon to give in a written statement of their respective claims as

to the fact of actual possession of the said (the subject of dispute), and being satisfied by due inquiry had

thereupon, without reference to the merits of the claim of either of the said parties to legal right of

possession, that the claim of actual possession by the said (name or names or description) is true;

I do decide and declare that he is (or they are) is possession of the said (the subject of dispute) and entitled

to retain such possession until ousted by due course of law, and do strictly forbid any disturbance of his (or

their) possession in the meantime.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

XXlll.— Warrant of Attachment in the Case of a Dispute as to the Possession of

Land, etc.

(See Section 146)

To the Police-officer in charge of the Police-station at [or, To the Collector]

Whereas it has been made to, appeal to me that a dispute likely to induce a breach of the peace

existed between (describe the parties concerned by name and residence, or residence only if the

dispute be between bodies of villagers) concerning certain (state concisely the subject of dispute)

state within the limits of my Jurisdiction; and the said parties were thereupon duly called upon to

state in writing their respective claims as to the fact of actual possession of the said (the subject of

dispute), and whereas, upon due inquiry into the said claims, I have decided that neither of the said

parties was in possession of the said (the subject of dispute) [or I am unable to satisfy myself as to

which of the said parties was in possession as aforesaid];

This is to authorise and require you to attach the said (the subject of dispute) by taking and keeping

possession thereof, and to hold the same under attachment until the decree or order of a competent

Court determining the rights of the parties, or the claim to possession, shall have been obtained,

and to return this warrant with an endorsement certifying the manner of its execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

275

276

XXIV - Magistrate's Order Prohibiting the doing of anything on Land or Water

(See Section 147)

A dispute having arisen concerning the right of use of (state concisely the subject of dispute) situate

within the limits of my jurisdiction, the possession of which land (or water) is claimed exclusively

by (describe the person or persons), and it appearing to me, on due inquiry into the same, that the

said land (or water) has been open to the enjoyment of such use by the public (or if by an individual

or a class of persons, describe him or them) and (if the use can be enjoyed throughout the year)

that the said use has been enjoyed within three months of the institution of the said inquiry (or if

the use is enjoyable only at particular seasons, say "during the last of the seasons at which the same

is capable of being enjoyed");

I do order that the said (the claimant or claimants of possession), or any one in their interest, shall

not take (of retain) possession of the said land (or water) to the exclusion of the enjoyment of the

right of use aforesaid, until he (or they) shall obtain the decree or order of a competent Court

adjudging him (or them) to be entitled to exclusive possession.

Given under my hand and sea! of the Court, this day

of ' 18 .

(Seal.) (Signature)

____________________

XXV. Bond and Bail-bond on a Preliminary Inquiry before a Police Officer

(See Section 169)

I (name), of , being charged with offence of and after inquiry required to appear before the

Magistrate of

or

and after inquiry called upon to enter into my own recognizance to appear when required, do

hereby bind myself to appear at ,in the Court of , on the day, of next (or on such day as I may

hereafter be required to attend) to answer further to the said charge, and in case of my making

default herein, I bind myself to forfeit to 1[Government], 2* * * the sum of rupees …………..

Dated this day of ' 18 .

(Signature)

_____________

XXVI. Bond to prosecute or give Evidence

(See Section 170)

I (name), of (place), do hereby bind myself to attend at , in the Court of , at O'clock on the day of

next and then and there to prosecute (or to prosecute and give evidence) (or to give evidence) in

1 Subs. by A.O., 1961, Art 2 and Sch., for “Her Majesty the Queen” (with effect from the 23rd March, 1956). 2 The words “Empress of India” omitted by A.O, 1949, Sch.

277

the matter of a charge of against one A,B and in case of making default herein, I bind myself to

forfeit to Government, the sum of rupees……………..

Dated this day of ,18 .

(Signature)

1* * * * * *

XXVIII --- CHARGES

(See Sections 221, 222, 223)

(i) Charges with one head

(a) I, (name and office of Magistrate, etc.) hereby charge you (name of accused person) as

follows:--

(b) that you, on or about the day of at waged war against 2[Pakistan] , 3* * *and thereby

committed an offence punishable under Section 121 of the Pakistan Penal Code, and within

the cognizance of the Court of Session 4[when the accused is to be tried by the High Court

in the exercise of its original Criminal jurisdiction), (for Court of Session substitute High

Court).

(c) And I hereby direct that you be tried by the said Court on the said charge.

[Signature and seal of the Magistrate]

[To be substituted for (b)]:--

(2) That you, on or about the day of

at , with the intention of inducing 5[the6[President] of Pakistan to refrain from exercising a lawful

power as such [President], assaulted him, and thereby committed an offence punishable under

Section 124 of the Pakistan Penal Code. and within the cognizance of the Court of Session [or

High Court], On Section 124.

(3) That you, being a public servant in the Department,

directly accepted from (state the name), for another party [state the name] a gratification other

than legal remuneration, as a motive forbearing to do an official act, and thereby committed an

offence punishable under Section 161 of the Pakistan Penal Code, and within the cognizance of

the Court of Session [or High Court]. On Section 161.

1 Form XXVII omitted by the Law Reforms Ordinance, 1972 (12 of 1972) s.2 and Sch. For enforcement of this amendement in the Provinces, see, para 2 of footnote 3 on p. 40, supra. 2 Subs. by A.O., 1961, Art.2 and Sch., for “Her Majesty the Queen” (with effect from the 23rd March, 1956). 3 The words “Empress of India” omitted by A.O., 1949, Sch. 4 Subs. ibid., for “when the charge is framed by a Presidency Magistrate”. 5 Subs. ibid., for “the Hon’ble A.B., Member of the Council of the Governor General of India, to refrain from exercising a lawful powers ans such

Member, assaulted such Member”. 6 Subs. ibid., for “the Hon’ble A.B., Member of the Council of the Governer General of India, to refrain from exercising a lawful power as such

Member, assaulted such Member”.

278

(4) that you, on or about the day of at , did (or omitted to do, as the case may be) , such conduct

being contrary to the provisions of Act section , and known by you to be prejudicial to and thereby

committed an offence punishable under Section 166 of the Pakistan Penal Code and within the

cognizance or the Court of Session [or High Court]. On Section 166.

(5) That you on or about the day of at in the course of the trial of before, stated in evidence that

which statement you either knew or believed to be false, or did not believe to be true, and thereby

committed an offence punishable under Section 193 of the Pakistan Penal Code, and within the

cognizance of the Court of Session [or High Court]. On Section 193.

(6) That you, on or about the day of at , committed culpable homicide not amounting, to murder,

causing the death of and thereby committed an offence punishable under Section 304 of the

Pakistan Penal Code, and within the cognizance of the Court of Session [or High Court].

On Section 304. (7) That you, on or about the day of at abetted the commission of suicide by A,B, a person in a

state of intoxication, and thereby committed an offence punishable under Section 306 of the

Pakistan. Penal Code, and within the cognizance of the Court of Session [or High Court].

On Section 306 (8) That you on or about the , day of , at voluntarily caused grievous hurt to , and thereby committed

an offence punishable under Section 325 of the Pakistan Penal Code, and within the cognizance of

the Court of Session (or High Court],

On Section 325.

(9) That you, on or about the day of at robbed [state the name], and thereby committed an offence

punishable under Section 392 of the Pakistan Penal Code, and; within the cognizance of the Court

of Session [or High Court]. On Section 392.

(10) That you, on or about the day of at , committed dacoity, an offence punishable under Section

395 of the Pakistan Penal Code, and within the cognizance of the Court of Session (or High Court).

On section 395. :

(a) I, [name and office of Magistrate, etc.] hereby charge you [name of accused person] as

follows:- .

(b) First.----That you on or about the day of at , knowing a coin to be counterfeit delivered the

same to another person, by name A.B., as genuine, and thereby committed an offence punishable

under Section 241 of the Pakistan Penal Code, and within the, cognizance of the Court of Session

[or High Court]. On Section 241.

Secondly--- That you on or about the day of

at , knowing a coin to be counterfeit, attempted to induce another person, by name A.B., to receive

it as genuine, and thereby committed an offence punishable under Section 341 of the Pakistan

Penal Code, and within the cognizance of the Court of Session (or High Court].

(c) And I hereby direct that you be tried by the said Court on the said charge.

[Signature and seal of the Magistrate]

[ To be substituted for (b) ]: -

279

[2) First. That you on or about the day of at , committed murder by causing the death of , and

thereby committed an offence punishable under Section 302 of the Pakistan Penal Code and within

the cognizance of the Court of Session [or High Court]. On Section 302 and 304

Secondly —That you on or about the day of

at , by causing the death of committed culpable homicide not amounting the murder, and thereby

committed an offence punishable under Section 304 of the Pakistan Penal Code, and within the

cognizance of the Court of Session [or High Court].

(3)First ----That you, on or about the day of at committed theft, and thereby committed an offence

punishable under Section 379 of the Pakistan Penal Code and within the cognizance of the Court

of Session [or High Court]. On Section 379 & 382.

Secondly —That you, on or about the day of , at , committed theft having made preparation for

causing death to a person in order to the committing of such theft, and thereby committed an

offence punishable under Section 382 of the Pakistan, Penal Code and within the cognizance of

the Court of Session [or High Court ].

Thirdly — That you, on or about the day of , at , committed theft having made preparation for

causing restraint to a person in order to the effecting of your escape after the committing of such

theft, and thereby committed an offence punishable under Section 382 of the Pakistan Penal Code,

and within the cognizance of the Court of Session [or High Court.].

Fourthly.—That you, on or about the day of , at , committed theft, having made preparation for

causing fear of hurt to a person in order to the retaining of property taken by such theft and thereby

committed an offence punishable under Section 382 of the Pakistan Penal Code, and within the

cognizance of the Court of Session [or High Court].

(4) That you, on or about the day of , at , in the course of the inquiry into before stated in evidence

that" " and that you, on at about the , day of , at in the course of the trial, of , before stated in the

evidence that " ", one of which statements you either knew or believed to be false, or did not

believe to be true, and thereby committed an offence punishable under Section

193 of the Pakistan Penal Code, and within the cognizance of the Court of Session [or High Court].

Alternative Charge. On Section 193.

__________________

(III) Charges for Theft after previous Conviction

I, [name and office of Magistrate, etc.] hereby charge you (name of accused person) as follows:

That you, on or about the day of at , committed theft, and thereby committed an offence punishable

under Section 379 of the Pakistan Penal Code and within the cognizance of the Court of Magistrate,

Session [or High Court] as the case may be.

And you, the said (name or accused, stand further charged that you, before the committing of the

said offence, that is to say on the day of , had been, convicted by the (state Court by which

conviction was had) at of an offence punishable under Chapter XVII of the Pakistan Penal Code,

280

with imprisonment for a term of three years, that is to say, the offence of house breaking by night

(describe the offence in the words used in the section under which the accused was convicted),

which conviction is still in force and effect, and that you are thereby liable to enhanced punishment

under Section 75 of the Pakistan Penal Code.

And I hereby direct that you be tried, etc.

_______________

XXIX.-Warrant Commitment on a Sentence of Imprisonment or fine if passed by a

Magistrate

(See Sections 254 * *1)

To the Superintendent [or Keeper) of the Jail at …………………..

Whereas on the day of , 19 (name of prisoner) the (1st, 2nd, 3rd, as the case may be) prisoner in

case No. of the Calendar for 19, was convicted before me (name official designation) of the offence

of (mention the offence or offences, concisely) under section (or sections) of the Pakistan. Penal

Code (or of Act) was sentenced to (state the punishment fully and distinctly).

This is to authorize and require you, the said Superintendent (or Keeper), to receive the said

prisoner's name) into your custody in the said Jail, together with this warrant, and there carry the

aforesaid sentence into execution according to law.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

_____________________

XXX. WARRANT OF IMPRISONMENT ON FAILURE TO RECOVER AMENDS

BY 2[ATTACHMENT AND SALE]

(See Section -250)

To the Superintendent (or Keeper) of the Jail at ………….

Whereas (name and description) has brought against (name and description of the accused person)

the complaint that (mention it concisely) and the same has been dismissed as 3[false and frivolous]

(or vexatious), and the order of dismissal awards payment by the said (name of complainant) of

the sum of rupees as amends, and whereas the said sum has not been paid 4* * * and an order has been made for his simple imprisonment in Jail for the period of days,

unless the aforesaid sum be sooner paid;

1 The word and figure “and 258” omitted by the Federal Law (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch. 2 Subs. by the Code of Criminal Procedure (Amdt.) Act, 1923 (18 of 1923), s. 162, for “Distress” 3 Ins. ibid. 4 The words “and cannot be recovered by distress of the moveable property of the said (name of complainanat)” rep., ibid.

281

This is to authorize, and require you, the said Superintendent (or Keeper), to receive the said

(name) into your custody, together with the warrant, and him safely to keep in the said Jail for the

said period of (term of imprisonment), subject to the provisions of Section 69 of the Pakistan Penal

Code, unless the said sum be sooner paid, and on the receipt thereof, forthwith to set him at liberty,

returning this warrant with an endorsement Certifying the manner of its execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

XXXI—Summons of Witness

(See Sections 69 and 252)

To of

Whereas complaint has been made before me that of has

(or is suspected to have) committed the offence of (state the offence concisely with time and

place) and it appears to me that you are likely to owe material evidence for the prosecution;

You are hereby summoned to appear before this Court on the day of next at ten O'clock in the forenoon, to testify

what you know concerning the matter of the said complaint, and not to depart thence without leave of the Court; and

you are hereby warned that, if you shall without just excuse neglect or refuse to appear on the said date a warrant will

be issued to compel your attendance.

Given under my hand and the seal of the Court this day

of ' 18 .

(Seal.) (Signature)

___________ 1* * * * * * *

XXXII — Precept to District Magistrate to summon Jurors and Assessors Omitted By LRO 1972, item 213

XXXIII.—Summons to Assessor or Juror Omitted By LRO 1972, item 213

_______________

XXXIV.—Warrant of Commitment under Sentence of Death (See Section 374)

To the Superintendent (or Keeper) of the Jail at ……………….

Whereas at the Session held before me on the day of 19 (name of prisoner), the (1st, 2nd, 3rd as the case may be),

prisoner in case No. of the Calendar at the said Session, was duly convicted of the offence of culpable homicide

1 Forms XXXII and XXXIII omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, supra.

282

amounting to murder under section of the Pakistan Penal Code, and sentenced to suffer death, subject to the

confirmation of the said sentence by the Court of

This is to, authorise and require you the said Superintendent (or Keeper), to receive the said (prisoner’s name) into

your custody in the said Jail, together with this warrant, and him there safely to keep until you shall receive the further

warrant or order of this Court, carrying into effect the order of the said Court.

Given under my hand and the seal of the Court, this, day

of ' 18 .

(Seal.) (Signature

XXXV.— Warrant of Execution on a Sentence of Death

(See Section 381)

To the Superintendent (or Keeper) of the Jail at ……………..

Whereas (name of prisoner, the 1st, 2nd. 3rd, as the case may be) prisoner in case No. ……………of the Calendar at

the Session held before me on the day of ,19, has been by a warrant of this Court, dated the day has been by a warrant

of this Court. dated the day of , committed to your custody under sentence of death; and

Whereas the order of the Court of confirming the said sentence has been received by this Court;

This is to authorise and require you, the said Superintendent (or Keeper), to carry the said sentence into execution by

causing the said to be hanged by the neck until he be dead, at (time and place of execution), and to return this warrant

to the Court with an endorsement certifying that the sentence has been executed.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

XXXVI.—Warrant after a Commutation of a Sentence

(See Sections 381 and 382)

To the Superintendent (or Keeper) of the Jail at …………………………

Whereas at a Session held on the day of , 19 , (name of prisoner), the (1st, 2nd, 3rd, as the case

may be) prisoner in case No. of the Calendar at the said Session, was convicted of the offence of

punishable under section of the Pakistan Penal Code, and sentenced to and was thereupon

committed to your custody and whereas by the order of the Court of (a duplicate of which is

hereunto annexed) the punishment adjudged by the said sentence has been commuted to the

punishment of transportation for life (or as the case may be);

This is to authorize and require you, the said Superintendent (or Keeper), safely to keep the said

prisoner's name) in your custody in the said Jail, as by law is required, until he shall be delivered

over by you to the proper authority and custody for the purpose of his undergoing the punishment

of transportation under the said order.

or

If the mitigated sentence is one of imprisonment, say, after the words, "custody in the said Jail",

"and there to carry into execution the punishment of imprisonment under the said order according

to law".

283

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

XXXVll.—WARRANT TO LEVY A FINE BY 1[ATTACHMENT] AND SALE

(See Section 386 2[(i) (a)])

To (name and designation of the Police-officer or other person or persons who is or are to

execute the warrant).

WHEREAS (name and description of the offender) was on the day of 19 ,convicted before me of

the offence of (mention the offence concisely)and sentenced to pay a fine of rupees and whereas

the said (name), although required to pay the said fine, has not paid the same or any part thereof;

This is to authorize and require to 3[attach any] movable property belonging to the said (name)

which may be found within the district of ; and, if within (state the number of days or hours

allowed) next after 4[such attachment] the said sum shall not be paid (or forthwith), to sell the

movable 5[property attached], or so much thereof as shall be sufficient to satisfy the said fine,

returning this Warrant, with an endorsement certifying what you have done under it, immediately

upon its execution.

Given under my hand and the seal of Court, this day

of ' 18 .

(Seal.) (Signature)

6[XXXVll-A.-BOND FOR APPEARANCE OF OFFENDER RELEASED

PENDING REALISATION OF FINE

(See Section 388)

WHEREAS (name), inhabitant of (place), have been sentenced to pay a fine of rupees ……and in

default of payment thereof to undergo imprisonment for ; and whereas the Court has been pleased

to order my release 7* * *on condition of my executing a bond for my appearance 8[on the

following date (or dates) namely:--

I hereby bind myself to appear before the Court of at O'clock 9[on the following date (or

dates) namely:, and in Case of making default herein, I bind myself to forfeit to 10[Government], 11* * *the sum of rupees.

Dated this day of , 18 .

1 Subs. by the Code of Criminal Procedrue (Amendement) Act, 1923 (18 of 1923), s. 162, for “Distress”. 2 Ins. ibid. 3 Subs. ibid., for “make distress by seizure of any”. 4 Subs. ibid., for “such distress”. 5 Subs. ibid., for “Property distrained”. 6 Form XXXVIIA ins. by the Code of Criminal Procedure (Amdendement) Act, 1923 (18 of 1923). 7 The words “until the days of “ rep. by s. 5 of the Code of Criminal Procedure (Second Amendement) Act, 1923 (37 of 1923). 8 Subs. ibid., for “on that day”. 9 Subs. ibid., for “on the said day of next”. 10 Subs. by A.O., 1961, Art. 2 and Sch., for “His Majesty the King” (with effect from the 23rd March, 1956). 11 The words “Emperor of India” omitted by A.O., 1949, Sch.

284

(Signature)

Where a bond with sureties is to be executed, add--

We do hereby declare ourselves sureties for the above named that he will appear before the Court

of on the following date (or dates), namely and, in case of his making default therein, we bind

ourselves jointly and severally to forfeit to Government the sum of rupees

(Signature)

__________________

XXXVIII.—Warrant of Commitment in certain cases of Contempt when a Fine is

imposed

(See Section 480)

To the Superintendent (or Keeper) of the Jail at: ……………………..

WHEREAS a Court held before me on this day (name and description of the offender) in the

presence (or view) of the Court committed wilful contempt;

And Whereas for such contempt the said (name of offender) has been adjudged by the Court to

pay a fine of rupees on in default to suffer simple imprisonment for the space of (state the number

of months or days);

This is to authorize and require you, the Superintendent (or Keeper) of the said Jail, to receive this

said (name of offender into your custody), together with this warrant and him safely to keep in the

said Jail for the said period of (term of imprisonment), unless the said fine be sooner paid; and, on

the receipt thereof, forthwith to set him at liberty, returning this warrant with an endorsement

certifying the manner of its execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

__________________

XXXIX.—Magistrate's or Judge's Warrant of Commitment of witness refusing to

answer

(See Section 485)

To (name of description of officer of Court)

WHEREAS (name and description), being summoned (or brought before this Court) as a witness and this

day required to give evidence on an inquiry into an alleged offence refused to answer a certain question (or

certain questions) put to him touching, this said alleged offence, and duly recorded, without alleging any

just excuse for such refusal, and for his contempt has been adjudged detention in custody for (term of

detention adjudged).

285

This is to authorize and require you, to take the said (name) into custody, and him safely to keep in your

custody for the space of days, unless in the meantime he shall consent to be examined and to answer the

questions asked of him, and on the last of the said days, or forthwith on such consent being known, to bring

him before this Court to be dealt with according to law, returning this warrant with an endorsement

certifying the manner of its

execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

1* * * * * *

2* * * * * *

XLII.—Bond and Bail bond on a Preliminary Inquiry before a Magistrate (Omitted by LRO., 1972

item 273).

__________________

XLIII.—Warrant to discharge a Person Imprisoned on Failure to give Security

(See Section 500)

To the Superintendent (or Keeper) of the Jail at …………… (or other officer in whose custody the person

is)

WHEREAS (name and description of prisoner) was committed to your custody under warrant of this Court,

dated the day of and has since with his surety (or sureties) duly executed a bond under Section 499 of the

Code of Criminal Procedure;

This is to authorize and require you forthwith to discharge the said (name) from your custody,

unless he is liable to be detained for some other matter.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

_____________

XLIV.—Warrant of Attachment to enforce a Bond

(See Section 514)

To the Police-officer Incharge of the Police-station at …………….

1 Forms XL and XLI omitted by the Federal laws (Revision and Declaration) Ordinance, 1981 (27 of 1981) . s.3 and Second Sch. 2 Form XLII omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

For enforcement of this amendement in the Provinces, see para 2 of footnote 3 on p. 40, supra.

286

WHEREAS (name description and address of person) has failed to appear on (mention the

occasion) pursuant to his recognizance, and has by such default forfeited to 1[Government] 2*

* * the sum of rupees (the penalty in the bond); and whereas the said (name of person) has on

due notice to him, failed to pay the said sum or show any sufficient cause why payment should not

be enforced against him;

This is to authorize and require you to attach any movable property of the said (name) that you

may find within the district of , by seizure and detention; and, if the said amount be not paid within

three days, to sell the property so attached or so much of it as may be sufficient to realise the

amount aforesaid, and to make return or what you have done under this warrant immediately upon

its execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

__________________

XLV.-NOTICE TO SURETY ON BREACH OF A BOND

(See Section 514)

To of

Whereas on the day of , 19 , you became surety for (name) of (place) that he should appear before

this Court on the day of and bound yourself in default thereof to forfeit the sum of rupees to

Government and whereas the said (name) has failed to appear before this Court and by reason of

such default you have forfeited the aforesaid sum of rupees.

You are hereby required to pay the said penalty or show cause, within days from this

date, why payment of the said sum should not be enforced against you.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

________________

XLVI.—Notice to Surety of Forfeiture of Bond of Good Behaviour

(See Section 514)

To

WHEREAS on the day of ,19, you became surety by a bond or (name) of (place) that he would be

of good behaviour for the period of and bound yourself in default thereof to forfeit the sum of

rupees to Government] and whereas the said (name) has been convicted of the offence of (mention

the offence concisely) committed since you became such surety, whereby your security bond has

become forfeited;

1 Subs. by A.O., 1961, Art. 2 and Sch., for “Her Majesty the Queen” (with effect from the 23rd March, 1956). 2 The words “Empresso f India” omitted by A.O., 1949, Sch.

287

Your are hereby required to pay the said penalty of rupees or to show cause within days why it

should not be paid.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

___________________

XLVII.—Warrant of attachment against a Surety

(See Section 314)

To of

WHEREAS (name description and address) has bound himself as surety for the appearance of

(mention the condition of the bond), and the said (name) has made default, and thereby forfeited

to 1[Government] 2* * * the sum of rupees , (the penalty in the bond),

This is to authorize and require you to attach any movable property of the said (name) which you

may find within the district of , by seizure and detention; and, if the said amount be not paid within

three days, to sell the property so attached, or so much of it as may be sufficient to realize the

amount aforesaid, and make return of what you have done under this warrant immediately upon

its execution.

Given under my hand and the seal of the Court, this day

of ‘ 18 .

(Seal.) (Signature)

XLVIIl,—-Warrant of Commitment of the Surety of an Accused Person admitted to

Bail

(See Section 514)

To the Superintendent (or Keeper) of the Civil Jail at ……………..

WHEREAS (name and description of surety) has bound himself as a surety for the appearance of

(state the condition of the bond) and the said (name) has therein made default whereby the penalty

mentioned in the said bond has been forfeited to 3[Government], 4* * * and whereas the said

(name, of surety) has, on due notice to him. failed to pay the said sum or show any sufficient cause

why payment should not be enforced against him, and the same cannot be recovered by attachment

and sale of movable property of his, and an order has been made for the imprisonment in the Civil

Jail for (specify the period};

1 Subs. by A.O., 1961, Art 2 and Sch., for “Her Majesty the Queen” (With effect from the 23rd March, 1956), 2 The words “Empress of India” omitted by A.O., 1949, Sch. 3 Subs. by A.O., 1961, Art. 2 and Sch., for “Her Majesty the Queen” (with effect from the 23rd March, 1956). 4 The words “Empress of India” omitted by A.O., 1949 Sch.

288

This is to authorize and require you the said Superintendent (or Keeper), to receive said (name)

into your custody with this warrant and him safely to keep in the said Jail for the said (term of

imprisonment), and to return this warrant with an endorsement certifying the manner of its

execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

______________

XLIX--Notice to THE PRINCIPAL OF FORFEITURE OF A BOND TO KEEP THE PEACE

(See Section 514)

To (name, description and address)

WHEREAS on the day of , 19 , you entered into a bond not to commit, etc. (as in the bond), and

proof of the forfeiture of the same has been given before me and duly recorded;

You are hereby called upon to pay the said penalty of rupees or to show cause before me within

days why payment of the same should hot be enforced against you.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

__________________

L.-WARRANT TO ATTACH THE PROPERTY OF THE PRINCIPAL ON

BREACH OF A BOND TO KEEP THE

Peace

(See Section 514)

To (name and designation of Police-officer), at the Police-station of ……….

Whereas (name and description) did, on the day of 19 , enter into a bond for the sum of rupees

binding himself not to commit a breach of the peace, etc. (as in the bond), and proof of the

forfeiture of the said bond has been given before me and duly recorded; and where as notice has

been given to the said (name) calling upon him to show cause why the said sum should not be

paid, and he has failed to do so or to pay the said sum;

This is to authorise and require you to attach by, seizure movable property belonging to the said

(name) to the value of rupees which you may find, within the district of and if the said sum be not

paid within to sell the property so attached or so much of it as may be sufficient to realise the same;

and to make return of what you have done under this warrant immediately upon its execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

_____________________

289

LI-WARRANT OF IMPRISONMENT ON BREACH OF A BOND TO KEEP THE PEACE .

(See Section 514)

To the Superintendent (or Keeper) of the Civil Jail at ………………….

Whereas proof has been given before me and duly recorded that (name and description) has

committed a breach of the bond entered into by him to keep the peace, whereby he has forfeited to 1[Government], 2* * *, the sum of rupees ; and whereas the said (name) has failed to pay the said

sum or to show cause why the said sum would not be paid, although duly called upon to do so and

payment thereof can not be enforced by attachment of his movable property, and an order has been

made for the imprisonment of the said (name) in the Civil Jail for the period of (term of

imprisonment).

This is to authorize and require you, the said Superintendent (or Keeper) of the said Civil Jail, to

receive the said (name) into your custody, together with this warrant, and him safely to keep in the

said Jail for the said period of (term of imprisonment), and to return that warrant with an

endorsement certifying the manner of its execution,

Given under my hand and the seal of the Court, this

dayof ' 18 .

(Seal.) (Signature)

Lll. Warrant of Attachment and sale on Forfeiture of Bond for Good Behaviour

(See Section 514)

To the Police-officer incharge of the Police-station at ……………….

WHEREAS (name, description and address) did on the day of , 18 , give security by

bond in the sum of rupees for the good behaviour of (name, etc., of the principal) and proof has

been given before me and duly recorded of the commission by the said (name) of the offence of

whereby the said bond has been forfeited; and whereas notice has been given to the said (name)

calling upon him to show cause why the said sum should not be paid, and he has failed to do so or

to pay the said sum;

This is to authorize and require to you to attach by seizure movable property belonging to the said

(name) to the value of rupees which you may find within the district of and, if the said sum be not

paid within , to sell the property so attached, or so much of it as may be sufficient to realise the

same, and to make return of what you have done under this warrant immediately upon its

execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

________________

LIII.-Warrant of Imprisonment on Forfeiture of Bond for Good Behaviour

(See Section 514)

To the Superintendent (or Keeper) of the Civil Jail at ………………….

1 Subs. by A.O., 1961, Art. 2 and Sch., for “Her Majesty the Queen” (with effect from the 23rd March, 1956). 2 The words “Empress of India” omitted by A.O., 1949 Sch.

290

WHEREAS (name, description and address), did, on the day of , 19 , give security by bond in the

sum of rupees for the good behaviour of (name etc, of the principal) and proof of the breach of the

said bond has been given before me and duly recorded, whereby the said (name) has forfeited to 1[Government], 2* * * the sum of rupees , and

whereas he has failed to pay the said sum or to show cause why the said sum should not be paid

although duly called upon to do so, and payment thereof cannot be enforced by attachment of his

movable property, and an order has been made for the imprisonment of said (name) in the Civil

Jail for the period of (term of imprisonment);

This is to authorise and require you, the Superintendent (or Keeper) to receive the said (name) into

your custody, together with this warrant, and him safely to keep in the said Jail for the said period

of (term of imprisonment), returning this warrant with an endorsement certifying the manner of its

execution.

Given under my hand and the seal of the Court, this day

of ' 18 .

(Seal.) (Signature)

_______________________________

1 Subs. by A.O., 1961, Art. 2 and Sch., for “Her Majesty the Queen” (with effect from the 23rd March, 1956). 2 The words “Empress of India” omitted by A.O., 1949 Sch.

291

The Code of Civil Procedure, 1908

1ACT NO V. OF 1908

[21st March 1908]

An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil

Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the

Courts of Civil Judicature; It is hereby enacted as follows: -

PRELIMINARY

1 For statement of Objects and Reasons, see Gazette of India, 1907 Pt.V.p.179; for Report of the Selection

Committee, see ibid., 1908, Pt.V., p. 35; and for Proceedings in Council, see ibid., 1907, Pt. VI. P. 135 and ibid.,

1908, pp.8, 12 and 212.

All refrenece int heAct to his Majesty in Council shall be construed as references to the federal Court, see the

Federal Court (Enlargement of Jurisdiction) Act, 1949 (1 of 1950), s.6.

The Act has been extended and shall be deemed to have been so extended ont e 14th October, 1955, to the whole of

Pakistan by the Central Laws (Statute Reforms) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch.

This Act has been amended in the Punjab by the Punjab Relif of Indebtedness Act, 1934 (Punjab 7 of 1934), Pt.

VIII.

It has been extended by notification under ss.5 and FA of the Scheduled District Act, 1874 (14 of 1874), to the

following scheduled Districts:-

(1) The Province of Sindh: Bombay Governemnt Gazette, Extraordinary, 1909, Pt. I and Gazette of India,

1909, Pt. I, p.32.

(2) Scheduled District int eh Punjab: Gazette, of India, 1909, Pt. I, P. 33.

(3) The District of Peshawar, Hazara, Kohat, Bannu and Dera Ismail Khan composing the N.W.F.P, : ibid.,

Pt. II, p. 80.

It has been declared to be inforce in Balochistan by the British Balcohistan Laws Regulation, 1913 ( 2 of 1913), s. 3

and First Schedule.

It has also been extended to the Leased Areas of Balochistan, see the Leased Areas 9Laws) Order, 1930 (G.G.O.3 of

1950); and applied in the Federated Areas of Balochistan, see GAz. Of India 1937, pt. I, p. 1499.

It has been applied to Phulera in the Excluded Area of Upper Tanawal to the the extendt the Act is applicable in the

N.W.F.P (Upper Tanwal) (Excluded Area) Laws Regulation, 1950.

It has also been extended to the Excluded Area of Upper Tanawal other than Phulera by the N.W.F.P. (Upper

Tanwal) Excluded Area) Laws Regulation, 1950 and declared to be in force in that area with affect from the 1st June,

1951, see N.W.F.P Gazette, Extra Ordinary, dated the 1st June, 1951.

The Act has with certain modification been applied to the Provincially Administred Tribal Areas of Ghitral, Dir,

Kala, Swat and Malakand Protect Area by NWFP. Regulation NO. 1 of 1974.

292

1.-Short title, commencement and extert. (l) This Act may be cited as the Code of Civil

Procedure, 1908.

(2) It shall come into force on the first day of January 1909.

1[(3) It extends to the whole of Pakistan.]

2.Definition. In this Act, unless there is anything repugnant in the subject or context,-

(1) "Code" includes rules:

(2) "decree" means the formal expression of an adjudication which, so far as regards the court

expressing it, conclusively determines the rights of the parties which regard to all or any of the

matters in controversy in the suit and may be either preliminary or final. It shall be deemed to

include the rejection of a plaint 2[the determination of any question within section 144 and an order

under rule 60, 98, 99, 101, or 103 of Order XXI but shall not include;

(a) any adjudication form which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. - A decree is preliminary when further proceedings have to be taken before the suit

can be completely dispose of. It is final when such adjudication completely disposes of the suit. It

may be partly preliminary and partly final;

(3) "Decree-holder" means any person in whose favour a decree has been passed or an order

capable of execution has been made:

(4) "District" means the local limits of the jurisdiction of a principal civil Court of original

jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary

original civil jurisdiction of a High Court:

(5) "Foreign Court" means a Court situate beyond the limits of 3[Pakistan] which has no

authority in 3[ Pakistan] is not established or continued by 4[the 5[Federal Government] 6* * * ] ;

1 Subs. by the Central Laws (Statute Refroms) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect t from the 14th October, 1955), for the Original sub-section (3), as amended by A.O., 1949. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 ad Sch., for “and the determination of any question within section 47 or section

144”. 3 Subs. by Ord. 21 of 1960., s.3 and 2nd Sch. (with ffect from the 14th October, 1955), for “the Provinces and the Capital of the Federation: which

had been subs. by A.O., 1949, for “British India”. 4Subs. by A.O., 1937, for “the G.G in C.”. 5Subs. by F.A.O., 1975 Art. 2 and Table, for “Central Government” 6The Words “ or the Crown Representative” omitted by A.O., 1949.

293

(6) "Foreign judgment" means the judgment of a foreign Court:

(7) "Government Pleader" Includes any officer appointed by the 1[Provincial

Government] to perform all or any of the functions expressly imposed by this

Code on the Government Pleader and also any pleader acting under the directions

of the Government Pleader :

(8) "Judge" means the presiding officer of a civil Court:

(9) "Judgment" means the statement given by the Judge of the grounds of a decree or

order:

(10) "Judgment-debtor" means any person against whom a decree has been passed or

an order capable of execution has been made:

(11) "Legal representative" means a person who in law represents the estate of a

deceased person, and includes any person who intermeddles with the estate of the

deceased and where a party sues or is sued in a representative character the person

on whom the estate devolves on the death of the party so suing or sued:

(12) "Mesne profits" of property means those profits which the person in wrongful

profession of such property actually received or might with ordinary diligence

have received therefrom, together with interest on such profits but shall not

include profits due to improvements made by the person in wrongful possession:

(13) "Movable property" includes growing crops:

(14) "Order" means the formal expression of any decision of a civil Court which is not

a decree:

(15) "Pleader" means any person entitled to appear and plead for another in Court, and

includes an advocate, a civil and an attorney of a High Court:

(16) "Prescribed" means prescribed by rules:

(17) "Public officer" means a person falling under any of the following descriptions,

namely:

(a) every Judge;

1 Subs. by A.O., 1937, for “L.G.”.

294

1[(b) Every person in the service of Pakistan.

(c) Every commissioned or gazetted officer in the military, 2[naval or air forces of 3[Pakistan while

in the service of the State;

(d) Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on

any matter of law or fact, or to make, authenticate or keep any document, or to take charge or

dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret,

- or to preserve order, in the Court, and every person especially authorized by a Court of Justice to

perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any

person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give

information of offences, to bring offenders to justice, or to protect the public health, safety or

convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on

behalf of the Government, or to make any survey, assessment or contract on behalf of the

Government . or to execute any revenue-process, or to investigate, or to report on, any matter

affecting the pecuniary interests of the Government, or to make, authenticate or keep any document

relating to the pecuniary interests of the Government or to prevent the infraction of any law for the

protection of the pecuniary interest of 1[the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission

for the performance of any public duty:

(18) "Rules" means rules and forms contained in the First Schedule or made under section 122 or

section 125.

(19) "Share in a corporation" shall be deemed to include stock, debenture-stock, debentures or

bonds; and

(20) "Signed", save in the case of a judgment or decree, includes stamped.

3. Subordination of Courts: For the purposes of this Code, the District Court is subordinate to

the High Court, and every civil Court of' a grade inferior to that of a District Court and every Court

of Small Causes is subordinate to the High Court and District Court.

1 Subs. by the Federal Laws (Revision and Declration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch., for sub-clause (b). the words in

crotchets (Civil Service of Paksitan which were amended by Ordinance 21 of 1960, s. 3 and 2nd and A.O, 1949. 2 Subs. by the Amending Act, 1934 (35 of 1934), s.2 and Sch., for “or navail”. 3 The words “His Majesty while serving under the Crown” as amended, by Act, 35 of 1934, s.2 and Sch. And A.O., 1937 have been subs. by

A.O., 1961, Art, 2 and Sch. (with effect from the 23rd March, 1956.)

295

4. Savings:- (l) In the absence of any specific provision to the contrary, nothing in this Code shall

be deemed to limit or otherwise affect any special or local law now in force or any special

jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other

law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in subsection

(1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a

landholder or landlord may have under any law for the time being in force for the recovery of rent

of agricultural land from the produce of such land.

5. Application of the Code to the Revenue Courts:- (1) Where any Revenue Courts are governed

by the provisions of this Code in those matters of procedure upon which any special enactment

applicable to them is silent, the 1[Provincial Government] 2* * * may, by notification in the 3[official Gazette], declare that any portions of those provisions which are not expressly made

applicable by this Code shall not apply to those Courts, or shall only apply to them with such

modifications as the 1[Provincial Government] 4* * * may prescribe.

(2) "Revenue Court" in subsection (1) means a Court having jurisdiction under any local law to

entertain suits or other proceedings relating to the rent, revenue or profits of land used for

agricultural purposes, but does not include a civil Court having original jurisdiction under this

Code to try such suits or proceedings as being suits or proceedings of a civil nature.

6. Pecuniary Jurisdiction: Save in so far as is otherwise expressly provided, nothing herein

contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-

matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. Provincial Small Cause Courts: The following provisions shall not extend to Courts cons-

Provincial Small Cause Courts Act, 1887,5* * * or to Courts exercising the jurisdiction of a

Court of Small Causes Courts 6[under the said Act], that is to say,-

1 Subs. by A.O., 1937, for “L.G.”. 2 The words “with the previous sanction of the G.G. in C.” omitted by the Devolution Act, 1920 (38 of 1920), s.2 and 1st Sch., Pt. I. 3 Subs. by A.O., 1937, for “local official Gazette”. 4 The words “with the sanction aforesaid” omitted by act 38 of 1920, s.2 and 1st Sch., Pt. I. 5 The words and figures “or under the Berar Small Cause Courts Law 1905” which were ins. by the Berar Laws Act, 1941 (4 of 1941), s.2 and 2nd Sch., have been omitted by A.O., 1949. 6 The original words “under that Act” were first subs. by Act 4 of 1941, s.2 and 2nd Sch., and then amended by A.O., 1949, to read as above.

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(a) So much of the body of the Code as relates to-

(i) Suits excepted from the cognizance of a Court of Small Causes;

(ii) The execution of decrees in such suits;

(iii) The execution of decrees against immovable property; and

(b) The following sections, that is to say,-

sections 9,

sections 91 and 92.

sections 94 and 95 1[so far as they authorize or relate to:

(i) orders for the attachment of immovable property,

(ii) injunctions.

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of

section 94 and

sections 96 to 112 and 115.

8.Presidency Small Cause Courts:- Omitted by the A.0, 1949.

______________

PART I

SUITS IN GENERAL

JURISDICTION OF THE COURTS AND Res Judicata

9. Courts to try all civil suits unless barred: The Courts shall (subject to the provisions herein

cone tamed) have jurisdiction to try all suits of a civil nature excepting suits of which their

cognizance is either expressly or impliedly barred.

Explanation.- A suit is which the right to property or to an office is contested is a suit of a civil

nature, notwithstanding that such right ma depend entirely on the decision of questions as to

religious rites or ceremonies.

1 Subs. by the Small Cause Courts (Attachment of Immoveable Property) act, 1926 (1 of 1926), s.3, for “so far as they related to injuctions and

interlocutory orders”.

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10. Stay of suit: No Court shall proceed With the trial of any suit in which the matter in issue is

also directly and substantially in issue in a previously instituted suit between the same parties, or

between parties under whom they or any of them claim litigating under the same title where such

suit is pending in the same or any other Court in 1[Pakistan] having jurisdiction to grant the relief

claimed, or in any Court beyond the limits of Pakistan established or continued by 2[the 3[Federal

Government] 4* * *] and having like jurisdiction, or before 5[the Supreme Court].

Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in Pakistan

from trying a suit founded on the same cause of action.

11. Res Judicata: No Court shall try suit or issue in which the matter directly and substantially in

issue has been directly and substantially in issue in a former suit between the same parties, or

between parties under whom they or any of them claim, litigating under the same title, in a Court

competent to try such subsequent suit or the suit in which such issue has been subsequently raised,

and has been heard and finally decided by such Court.

Explanation I.- The expression "former suit" shall denote a Suit which has been decided prior to

the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined

irrespective of any provisions as $0 a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one

party and either denied or admitted, expressly, or impliedly by the other.

Explanation 1V.-Any matter which might and ought to have been made ground of defence or attack

in such former suit shall be deemed to have been a matter directly and substantially in issue -in

such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall,

for the purposes of this section, be deemed to have been refused.

1 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”. 2 Subs. by A.O., 1937, for “the G.G in C.” 3 Subs. by F.A.O., 1975. Art.2 and Table, for “Central Government” 4 The words “or the Crown Representative” omitted by A.O., 1949. 5 Subs. by A.O., 1961, Art. 2 and sch. (With effect from the 22nd March 1956), for “His Majesty in Council”.

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Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right

claimed in common for themselves and others, all persons interested in such right shall, for the

purposes of this section, be deemed to claim under the person so litigating.

1[12. Ban to further suits: (1) Where a plaintiff is preclude by rules from instituting a further suit

in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of

such cause of action in any Court to which this Code applies.

2[(2) Where a person challenges the validity of a judgment, decree or order on the pica of fraud,

misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the

Court which passed the final judgment, decree or order and not by a separate suit.]

13. When foreign judgment not conclusive: A foreign judgment shall be conclusive as to any

matter When thereby directly adjudicated upon between the same parties or between parties under

whom they or any of them claim litigating under the same title except;

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect

view of international law or a refusal to recognize the law of Pakistan in cases in

which such law is applicable;

(d) Where the proceedings in which the judgment was obtained are opposed to

natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in 3[Pakistan].

14. Presumption as to foreign judgment: The Court shall presume, upon the production of any

document purporting to be a certified copy of a foreign judgment, that such judgment was

pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but

such presumption may be displaced by proving want of jurisdiction.

PLACE OF SUITS

15. Court in which suits to be instituted: Every suit shall be instituted in the Court of the lowest

grade competent to try it.

16. Suits to be instituted where subject-matter situate: Subject to the pecuniary or other

limitations prescribed by any law, suits;

1 S.12 was renumberd as sub-section (1) of that section by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s.2 2 Sub-section (2) added ibid. 3 Sbus. By the Central Laws (statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”.

299

(a) for the recovery of immovable property- with or without rent or profits;

(b) for the partition of Immovable property;

(c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon

immovable property,

(d) for the determination of any other right to or Interest in immovable property;

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment;

shall be instituted in the Court within the local limits of whose jurisdiction the property is situated,

or, in the case of suits referred to in- clause (c), at, at the place where the cause of action his wholly

or partly arisen: -

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable

property held by or on behalf of the defendant may, where the relief sought can be entirely obtained

through his personal obedience, be instituted either in the Court within the local limits of whose

jurisdiction the property is situate 1[,or, in the case of suits referred to in clause (c), at the place

where the cause of action has wholly or partly arisen or in the Court within the local limits of

whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or

personally works for gain.

Explanation.- In this section "property" means property situate in 2[Pakistan].

17. Suits for immovable property situate within jurisidiction of differnet Courts:

Where a suit is to obtain relief respecting, or compensation for wrong to immovable property

situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the

local limits of whose jurisdiction any portion of the property is situate: -

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is

cognizable by such Court.

18.Place of institution of suit where local limits of jurisdiction of Courts are

uncertain:- (1) Where it is alleged to be uncertain within the local limits of the jurisdiction of

which of two or more Courts any immovable property is situate, any one of those Courts may, if

satisfied that there is ground for the alleged uncertainty, record a statement to that effect and

thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in

the suit shall have the same effect as if the property were situate within the-local limits of its

jurisdiction:

Provided that the suit is one with respect to which the Court is competent as regards

the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under subs section (1), and an

objection is taken before an appellate or revisional Court that a decree or order in a suit relating to

1 Ins. by the Code of Civil Procedure (Amdt.) Ordinance, 1962 (44 of 1962), s.6. 2 Subs. by the Central Laws (Statute Reform) ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”.

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such property was made by a Court not having jurisdiction where the property is situate, the

appellate or revisional Court shall not allow the objection unless in its opinion there was, at the

time of the institution of the suit, no reasonable ground for uncertainty as to the Court having

jurisdiction with respect thereto and there has been consequent failure of justice.

19. Suits for compensation for wrongs to person or movables: Where a suit is for

compensation for wrong done to the person or to movable property, if the wrong was done within

the local limits of the jurisdiction of one Court and the defendant resides, or carries on business,

or personally works for gain, within the local limits of the jurisdiction of another Court, the suit

may be instituted -at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in 1[Karachi], beats B in 2[Quetta]. B may sue A either in Quetta or 1[Karachi].

(b) A, residing in 1[Karachi] published in 2[Quetta] statements defamatory of B. B may sue A either

in Quetta or in Karachi.

20. Suits to be instituted where defendants reside or cause of action arises: Subject to

the limitations aforesaid, every suit shall be Institutated in a Court within the local limits of whose

jurisdiction.

(a) the defendant-, or each of the defendants where there are more than one, at the

time of the commencement of the suit, actually and voluntarily resides, or carries

on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the

commencement of the suit, actually and voluntarily resides, or carries on business,

or personally works for gain, provided that in such case either of the Court is

given, or the defendants who reside, or carry on business, or personally work as

aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

1 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for

“Delhi”. 2 Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and 2nd Sch., for “Dacca” which had been subs. by

Ord. 21 of 1960. s.3 and 2nd Sch., for “Calcutt”.

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Explanation I.- Where a person has- a one place and also a temporary residence shall be deemed

to reside at both places in action arising at the place where he residence.

Explanation II.-A corporation shall be deemed to carry on business at its sole or principal office

in 1[Pakistan] or, in respect of any cause of action arising at any place where it has also a

subordinate office, at such place.

Illustrations

(a) A is a tradesman in 2[Lahore] B carries on business in 3[Karachi] B, by his agent in

Lahore, buys goods of A and requests A to deliver them to the 4[Pakistan International Airways.

A delivers the goods accordingly in Lahore A may sue B for the price of the goods either in Lahore

where the cause of action has arisen or in Karachi where B carries on business.

(b) A resides at 5[Murree], B at Lahore, and C at Karachi A, B and C being together at 6[Bahawalpur,] B and C make a joint promissory note payable on demand, and deliver it to A. A

may sue B and C at Bhawalpur, where the cause of action arose. He may also sue them at Lahore,

where B resides, or at Karachi, where C resides: but in each of these cases, if the non-resident

defendant objects, the suit cannot proceed without the leave of the Court.

21. Objections to jurisdiction: No objection as to the place of suing shall be allowed by

any appellate or revisional Court unless such objection was taken in the Court of first instance at

the earliest possible opportunity and in all cases where issues are settled at or before such

settlement and unless there has been a consequent failure of justice.

22. Power to transfer suits which may be institued in more than one Court: Where a

suit may be instituted in any one.- of two or more Courts and is instituted in one of such Courts,

any defendant after notice to the other parties, may, at the earliest possible opportunity and in all

cases where issues are settled at or before such settlement, apply to have the suit transferred to

another Court, and the Court to which such application is made, after considering the objections

of the other parties (if any), shall determine in which of the several Courts having jurisdiction be

suit shall proceed.

23. To what Court application lies: (1) Where the several Courts having jurisdiction are

subordinate to the same Appellate Court, an application under section 22 shall be made to the

Appellate Court.

1 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provicnes and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”. 2 Subs. by the Federal laws (Revision and Declaration) Ordinance, 1981 (27 of 1981) s. 3 and Second Sch, for “Dacca” which had been subs. by Ord., 21 of 1960, s.3 and 2nd Sch., for Caluctta”. 3 Subs. ibid., (with effect from the 14th October, 1955), for “Delhi”. 4 Subs. ibid. (with effect from the 14th October, 1955), for “East India Railway Company”. 5 Subs. ibid. (with effect from the 14th October, 1955), for “Simla”. 6 Subs. ibid. (with effect from the 14th October, 1955), for “Benars”.

302

(2) Where such Courts are subordinate to different Appellate Courts but to the same High

Court, the application shall be made to the said High Court.

(3) Where such Courts arc subordinate to different High Courts, the application shall be

made to the High Court within the local limits of whose jurisdiction the Court in which the suit is

brought is situate.

24.General power of transfer and with drawl:- (l) On the application of any of the parties

and after notice to the parties and after hearing such of be heard, or of its own motion without such

notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal

to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate

to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or subordinate to it and competent same; or

(iii) retransfer the same for trial or disposal to the Court from which it was

withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1)

the Court which thereafter tries such suit may, subject to any special directions in the case of an

order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of' this section, and Assistant Judges shall be deemed to District Court.

(4) The court trying any suit transferred or withdrawn under this section from a Court of

Small Causes shall, for the purposes of' such suit, be deemed to be a Court of Small Causes,

1[24-A. Appreance of parties on transfer of suits:- (1) Where any suit is transferred udder

section 22, or any suit, appeal or other proceeding is transferred or withdrawn under subsection

(1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall

fix a date for the appearance of the parties before itself, if the., suit, appeal or other proceeding is

to be tried or disposed of by itself, or before the Court to which the case is so transferred.

(2) Where any suit, appeal or other proceeding is transferred from one Court to another,

otherwise than on the' application of a party, the parties thereto shall appear before the Court from

which the suit, appeal or other proceeding is to be transferred, on the day already fixed for their

appearance before that Court, and such Court shall then communicate the order of transfer to such

parties and direct them to appear before the Court to which the suit, appeal or other proceeding is

1 S.24A ins. by the Code of Civil Procedure (Amdt.), Ordinance, 1962 (44 of 1962), s.7.

303

to be transferred, either on the same day, or on such earliest day as may be reasonable having

regard to the distance at which the other Court is located."

125. Power or Provincial Government to transfer suits.] Omitted by the Central Laws

(Statue Reforms) Ordinance, 1960 (XXI of 1960), s.3 Sch (with effect from the 14th October, 1955)

INSTITUTION OF SUITS

26. Institution of Suits: Every suit shall be instituted by the presentation of a plaint or in

such other manner as may be prescribed.

SUMMONS AND DISCOVERY

27. Summons to defendants: Where a suit has been duly instituted, a summons may

defendants, be issued to the defendant to appear and answer the claim and may be served in manner

prescribed.

28.- (1) A summons may be sent for service in another summons. Province to such Court

and in such manner as may be prescribed by rules in force in that Province.

(2) The Court to which summons is sent shall, upon another receipt thereof, proceed as if

it had been issued by such Court and shall then return the summons to the Court of issue together

with the record (if any) of its proceedings with regard thereto.

229. Service of foreign summonses: Summonses 2[and other processes] issued by any

Civil or

1 S. 25 was amended by A.O., 1937. 2 Provisions of s.29 have been applied to—

(i) the Civil Courts in the Federation of Malaya in so far as the Chief Commissioner’s Province of Baluchistan and the Capital of the Federation are concerned, see Gaz. Of P., 1949, Pt.I, P.258 and ibid., Pt. HA, P. 68

(ii) all Civil and Revenue Courts of India; and service by any Civil or Revenue Court of India of any summons issued under the

Code of Civil Proceudre, 1908, by a Court of the Province of Sind shall be deemed to be valid, see Sind government Gazette,

Extraordinary, dated 3rd July, 1952, Pt. I, P. 437.

(iii) All Civil and Revenue Courts in India and Service by such Courts of any summons issued under the said Code by a Court in the

NWFP, Baluchistan or Karachi shallb e deemend to be valid service, see NWFP Governm,ent Gazette, 1952, Pt. I , P. 248 and Gaz. Of P. 1952, Pt. I, P. 119 and ibid., Pt. VI, p. 126.

(iv) All Civil and Revenue Courts in India; and that service by such Courts of any summons issued under the said Code oby a Court

in Khairpur State shallb e deemend to be valid service, see Khairpur State Gazette, Ext. 1952, dated the 18 th September, 1952. (v) All Civil and Revenue Courts in India; and service by such Courts of any summons issued under the said Code by a Court in the

Bahawalpur State shallb e deemed to be valid service, see Bahawalpur Govt. Gazette dated the 2nd October, 1952.

(vi) All Civil and Revenue Courts of India; and service by any civil or Revenue Court in India, within whose jurisdiction the person to be served resides of any summons issued by a Court under the said Code shallb e deemend to be valid service, see Punjab

Gazette, Ext. 1951, dated the 1st September, 1951, p. 1743.

(vii) All Civil and Revenue Courts in the Union of Burma, in respect Of Baluchistan; and service by such Courtsof any summons issued under the said Code by a Court in Baluchistan shall be deemed to be valid service see Gaz. Of P., Ext. 1954, P. 1873.

304

(viii) all Civil and Revenue Courts in the Union of Burma, in respect of Karachi; and service by such court of any summons issued under the said

Code by a Court in Karachi shall be deemend to be valid service, see Gaz. Of P., Extra., 1954, P. 1997.

(ix) all civil and Revenue Courts of the Union of Buram; and service b y such Courts of Sumoons issued under the said Code by A Court in East

Bengal shall be deemend to be valid service, see Dacca Gazette, Ext., dated 18th October, 1954, Pt. I, P. 3053.

(x) all Civil and Revenue Courts of the Union of Burma; and service by such Courts of any summons issued under the said Code by a Court in the

NWFP, shall be deemend to be valid service, see NWFP, Gazette, 1954, Pt. I, P. 523.

(xi) all Civil and Revenue Courts of the Union of Burma; and service by such Courts of any summons issued under the said Code by a Court in the

Province of Punjab, shall be deemed to be valid service, see Gaz. Of Punjab, 1954, Pt. I, P. 843.

(xii) all Civil and Revenue Courts in the Federal Republic of Germany; and service by such Courts of summons issued under the said Code by a

Court in Baluchistan shall be deemend to be valid service, see Gaz. Of P. 1955, Pt. I p. 126.

(xiii) all Civil and Revenue Courts in the Federal Republic of Germany; and service by such Courts of summons issued under the said Code

by a Corut in Baluchistan shall be deemed to be valid service, see Gaz of P. 1955, pt. I, p. 126.

(xiv) the summonses issued by any Civil or Revenue Courts by Pakistan may be sent to the Courts int eh Union of Burma and served as if they had

been issued by such Courts, see Gaz of 1955, P.I, P. 143.

(xv) service by any Court situated in Pakistan, of any summons issued by a Court of the Union of Burma shall be deemed to be valid service, see

Gaz. Of P., 1955, Pt. I, P. 143

(xvi) all Civil and Revenue Courts in the Federal Republic of Germany an services by Such Courts of any summons issued under the said Code by

a Court in Karachi, shall be deemed to be valid service, with effect on and from the 1st June, 1955, see Gaz. Of P. 1955, Pt. VI, p. 102.

(xvii) all Civil and Revenue Courts in the Federal Republic of Germany; and service by such Courts of any summons issued under the said Code

by a Court in the Province of East Bengal shall be deemed to be valid service see Dacca Gazette, 1955, Pt. I, P. 1051.

(xviii) all Civil Court in Switzerland and the service by such Courts of any summons issued under the Code (C.Pr.C.) by a Court in the Province of

w. Pakistan shall be deemed to be valid service, see W.P. Gaz., 1959, Ext. P. 843.

2 Ins. by the Code of Civil Procedure (Amdt.) Act, 1940 (34 of 1940).

305

Revenue Court situates 1[outside Pakistan] may be sent to the Courts 2[in Pakistan] and served as

if they 3[were summonses] issued by such Courts:

4[Provided that the Courts issuing such summonses 5[or processes have been established or

continued by the authority of the 6[Federal Government] 7* * * or that the Provincial Government 8[of the Province in which such summonses or processes are] to be served has by notification in

the official Gazette declared the provisions of this section to apply to 9[such Courts].

30. Power to order discovery and the like: Subject to such conditions and limitations as

may be prescribed, the Court may, at any. time, either of its own motion or on the application of

any party: -

(a) make such orders as may be necessary or reasonable in all matters relating to the

delivery and answering of interrogatories, the admission of documents and facts,

and the discovery, inspection, production, impounding and return of documents or

other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence

or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

31. Summons to witness: The provisions in sections 27, 28 and 29 shall apply to

summonses to give evidence or to produce documents or other material objects.

32. Penality for default:- The Court may compel the attendance of any person to whom

a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;

(b) attach and sell his property;

(c) impose a fine upon him not exceeding [two thousand] rupees;

(d) order him to furnish security for his appearance and in default commit him to […..]

prison.

1 The original words “beyond the limits of British India” were first subs. by A.O., 1949, and then emended by the Central laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), to read as above. bg 2 The original words “in British India” were first subs. by A.O., 1949, and then amended by Ord. 21 of 1960, s. 3 and 2nd Sch (with effect from

the 14th October, 1955), tor ead as above. 3 Sbus. By the Code of Civil Procedure (Amdt.) Act, 1940 (34 of 1940), s. 2(1)(a)(ii), for “had been”. 4 Subs. by A.O., 1937, for the original proviso. 5 Ins. by Act 34 of 1940, s. 2(1)(b)(i). 6 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government” 7 The words “or of the Crown Representative” omitted by A.O., 1949. 8 Subs. by Act 34 of 1940, s.2 (1)(b)(ii) for “by whose Courts a summons is”. The Substitution with the omission of the words “or process” is to be deemed to have taken effect on the 1st day of April, 1937. 9 Subs. ibid. s.2(1)(b)(iii), for “courts of the Province”. The substitution is to be deemed to have taken effect on the 1st April, 1937.

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JUDGMENT AND DECREE

33. Judgment and decree: The Court. after the case has been heard, shall pronounce

judgment, and on such judgment a decree shall follow.

INTEREST

34. Interest: -(1) Where and in so far as a decree is for the payment of money, the Court

may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the

principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest

adjudged on such principal sum for any period prior to the institution of the suit, with further

interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the

date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2) Where such a decree is silent with respect to the payment of further interest on such

aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date,

the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.

1[34.A. Interest on public dues:- (l') Where the Court is of opinion that a suit was

instituted with intent to avoid the payment of any public dues payable by the plaintiff or on his

behalf, the Court may, while dismissing such suit, make an order for payment of interest on' such

public dues at the rate, of two per cent. above the prevailing bank rate.

(2) Where the Court is of opinion that the recovery of any public dues from the plaintiff

was unjustified, the Court may, while disposing of the suit, make an order for payment of interest

on the amount recovered at the rate of two per cent., about the prevailing bank rate.

Explanation- In this section-

(a) "bank rate" means the bank rate determined and made public under the

provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and

(b) "public dues" includes the dues of any bank owned by the Federal

Government or of any corporation or undertaking owned or controlled by

the Federal Government or a Provincial Government or of any local

authority.

2[34.B. interest etc, on dues of banking company:- Where and in so far as a decree is for

payment of money due to a banking company in repayment of a loan advanced by it, the Court

shall, in the decree, provide for interest or return, as the case may be, on the judgment debt from

the date of decree till payment-

1 New’s . section 34A was ins. by the Codeo f Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s.3 2 Section 34 B ins. by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (63 of 1980), s. 2.

307

(a) In the case of interest-bearing loans, for interest at the contracted rate or at the

rate of two percent above the bank rate, whichever is the higher;

(b) In the case of loans given on the basis of markup in price, lease, hire-purchase or

service charges, for the contracted rate of mark-up, rental, hire or service charges,

as the case may be, or at the latest rate of the banking company for similar loans,

whichever is the higher; and

(c) in the case of loans given on the basis of participation in profit and loss, for

return at such rate, not being less than the annual rate of profit for the preceding

six months paid by the banking company on term deposits of six months, accepted

by it on the basis of participation in profit and loss, as the Court may consider just

and reasonable in the circumstances of the case, keeping in view the profit-

sharing agreement entered into between the banking company and the judgment-

debtor when the loan was contracted.

Explanation.-(1) In this section in clause (a), "bank rate" has the same meaning as in section

34-A.

COSTS

35. Costs:- (l) Subject to such conditions and limitations as may be prescribed, and to the

provisions of any law for the time being in force, the costs of an incident to all suits shall be in the

discretion of the Court, and the Courts shall have full power to determine by whom or out of what

property and to what extent such costs are to be paid, and to give all necessary directions for the

purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the

exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state

its reasons in writing.

(3) The Courts may give interest on costs at any rate not exceeding six percent per

annum, and such interest shall be added to the Costs and shall be recoverable as such.

1[35-A. Compensatory costs in respect of false oe vexatious claims or edefences:- (l) If in any

suit or other proceeding 2[(including an execution proceeding, not being an appeal, any party

objects to the claim or defence on the ground that the claim or defence or any part of it is, as

against the objector, false or vexatious to the knowledge of the party by whom it has been put

forward, and if thereafter, as against the objector, such claim or defence is disallowed,

abandoned or withdrawn in whole or in part, the. Court, if the objection has been taken at the

earliest opportunity and if it is satisfied of the justice thereof, may, after recording its reasons for

1 S. 35A was ins. by s.2 of the Civil Procedure (Amdt.) Act, 1922 (9 of 1922), which, under section 1(2) thereof, mayb e brought into force in any

Province by the Provincial Governemnt on any specified date. It has been so brought into force in Punjab and Sind. 2 Ins. by the Code of Civil Procedure (Amdt.) Ordiance, 1962 (44 of 1962), s. 9 as amended by the Code of Civil Procedure (Amdt.) Act, 1963 (3

of 1963), s. 3.

308

holding such claim or defence to be false or vexatious, make an order for the payment to the

objector by the party by whom such claim or defence has been put forward, of costs by way of

compensation.

(2) No Court shall make any such order for the payment of an amount exceeding twenty 1[five thousand] rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is

less;

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the

jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, and

not being a Court constituted under that Act are less than two hundred and fifty rupees, the High

Court may empower such Court to award as costs under this section any amount not exceeding

two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

Provided further, that the High Court may limit the amount which any Court or class of

Courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this section shall, by reason

thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or

vexatious claim or defence shall be taken into account in any subsequent suit for damages or

compensation in respect of such claim or defence.]

--------------------

PART II

EXECUTION

GENERAL

36. Applications to order: The provisions of this Code relating to the execution of decrees

shall, so far as they are applicable, be deemed to apply to the execution of orders.

37. Definition of Court which passed a decree: The expression "Court which passed a

decree" or words to that effect, shall, in relation to the execution of decrees unless there is anything

repugnant in the subject or context, be deemed to include, -

(a) Where the decree to be executed has been passed in the exercise of appellate

jurisdiction, the first instance, and

(b) Where the Court of first instance has ceased to exist or to have jurisdiction to

execute it, the Court which, if the suit wherein the decree was passed wa instituted

1 Subs. by Ord. 44 of 1962, s. 9 for “one thousand”.

309

at the time of making the application for the execution of the decree, would have

jurisdiction to try such suit.

COURTS BY WHICH DECREES MAY BE EXECUTED

38. Courts by which decrees may be executed:- A decree may be executed either by the

Court which passed it, or by the Court to which it is sent for execution.

39. Transfer of decree:- (l) The Court which passed a decree may, on the application of

the decree-holder, send it for execution to another Court;

(a) if the person against whom the decree is passed actually and voluntarily resides

or carries on business, or personally works for gain, within the local limits of the

jurisdiction of such other Court, or

(b) if such person has not property within the Local limits of the jurisdiction of the

Court which passed the decree sufficient to satisfy such decree and has property

within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the

local limits of the jurisdiction of the Court which passed it; or

(d) if the Court which passed the decree considers for any other reason, which it shall

record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion it for execution to any

subordinate Court of competent Transfer of decree to Court in another Province. Result of

execution proceedings to be certified.

40. Transfer of decree to Court in another Province: Where a decree is sent for

execution in another Province, it shall be sent to such Court and executed in such manner as may

be prescribed by rules in force in that Province.

41. Results of execution proceedings to be certified: The Court to which a decree is sent

for execution shall certify to the Court which passed it the fact of such execution, or where the

former Court fails to execute the same the circumstances attending such failure.

1[42. Powers of Courts in executing transferd decree:- (1) The Court executing a decree

sent to it shall have the same powers in executing such decree as if it had been passed Court in by

itself. All persons disobeying or obstructing the execution of the decree shall be punishable by

such Court in the same manner ac if it had passed the decree. And its order in executing such

decree shall be subject to the same rules in respect of appeal as if the decree had been passed by

itself.

1 S. 42 renumbered as sub-section (1) of that section by the Code of civil Procedure (Amdt.) Ordinance, 1962 (44 of 1962), s. 10.

310

1[(2) Without prejudice to the generality of the foregoing provision, the Court executing a decree

sent to it shall have the following powers, namely:-

(a) power under section 39 to transfer the decree to another Court, if

necessary;

(b) power under subsection (1) of section 50 to permit execution to proceed

against the legal representatives of a deceased judgment-debtor;

(c) power under section 152 to correct clerical or arithmetical errors;

(d) power under rule 16 of Order XXI to recognize the assignment of a

decree;

(e) power under sub-rule (2) of rule 50 of Order XXI to grant leave to a

decree-holder to proceed against a person not already recognized as a

partner in a firm in an execution proceeding against the firm;

(f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give

notice of attachment of decree passed by another Court.]

43. Execution of decrees passed by British Courts in places to whih this Part does not

extend or in foreign territory: Any decree passed by a civil Court established in any 2[area in

Pakistan] to which the provisions relating to execution do not extend, 3* * * may, if it cannot be

executed within the jurisdiction of the Court by which it was passed, be executed in manner herein

provided within the jurisdiction of any Court in Pakistan.

44. Execution of decrees passed by Courts of Acceding States:- [Omitted by Federal

Laws (Revision and Declaratin) Ordinance 1981 (27 of 1981), s. 3 and Second Schedule.

44.A. Execution of decrees passed by Courts in the United Kingdom and other

reciprocating territory:-(1) Where a certified copy of a decree of any of the superior Courts of

the United Kingdom or any reciprocating territory has been filed in a District Court, the decree

may be executed in Pakistan as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such

superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and

such certificate shall, for the purposes of proceedings under this section, be conclusive proo1 of

the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree

apply to the proceedings of a District Court executing a decree under this section, and the District

Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that

the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

1 Sub-section (2) added ibid. 2 The original words “part of British Inida” have successively been amended by A.O., 1949 and the Central Laws (Statute Refrom) Ordinance 1960 (2 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955) to read above. 3 The words “or by Court established or continued by the authority of the Federal Government in any Acceding State”. Omitted by the Federal

Laws (Revision and Declration) Ordinance, 1981 (27 of 1981), s. 3 and Second Sch. Which had previously been amended by various enactments.

311

Explanation 1.-"Superior Court" with' reference to the United Kingdom, means the High

Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the

Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County

Palatine of Durham.

Explanation 2.-“Reciprocating territory" means 1[the United Kingdom and such other

country or territory as 1[the Federal Government] may, from time to time, by notification in the 2[official Gazette], declare3 to be reciprocating territory for the purposes of this section; and

"superior Courts", with reference to any such territory, means such Courts as may be specified in

the said notification.

Explanation 3.-."Decree", with reference to a superior Court, means any decree or

judgment of such Court under which a sum of money is payable, not being a sum payable in respect

of taxes or other charges of a like nature or in respect of a fine or other penalty, and

(a) With reference to superior Courts in the United Kingdom, includes judgments

given and decrees made in any Court in appeals against , such decrees or

judgments, but

(b) In no case includes an arbitration award, even if such award is enforceable as a

decree or judgment.]

45. Execution of decrees in foreign territory.-[Omitted by Ordinance (27 of 1981),

Second Sched., item 46(5) ].

46. Precepts:- (l) Upon the application of the decree-holder the Court which passed the

decree may, whenever it thinks fit, issue a precept to any other Court which would be competent

to execute such decree to attach any property belonging to the judgment-debtor and specified in

the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner

prescribed in regard to the attachment of property in execution of a decree:

1 Subs. by F.A.O., 1975, Art. 2 and Table for “Central Government” which had been subs. by A.O., 1937, for “G.G. in C”. 2 Subs. by A.O., 1937, for “Gazette of India”. 3 The Central Govt. has declared Fiji to be a reciprocasting territory and the Supreme Court of Fiji to be a Superior Court of the territory for the

purposes of this section, see Gaz. Of P., 1949, Pt. I, P. 275. Certain Court of Paksitan have beend elcared to be superior Courts for the purpose part I of the Foreign Judgment (Receiprocal Enforcement)

Act, 1933 (23 Geo. 5 ch. 13), see Gaz. Of P., 1953, Pt. I , Pp. 143-44

The Central Government has declared the Colony of Singapore to be a reciprocating territory, and the Supreme Court of Singapore to be a superior Court of the terriroty for the purpose of this section. See Gaz. Of P. 1954, Pt. I, P. 106.

Certain Courts in Paksitan have been declared to be superior Court for the purpose of section 5 of the Reciprocal Enforcement of Judgment

Ordinance of Singapore , see gaz. Of P., 1954, Pt. I, P. 296. The Central Government has declared the Australian Capital Terriorty to vbe a receiprocating terriroty , and the Supreme Court of Australian

Capital Terriroty to be a superior Court of the Territory for the Purposes of this section see, Gaz. Of P. 1957, Pt. I, P. 174.

The Central Governemnt has declared “New Zeland including the Cook Islands (including Nive) and the Trust Terriroty , and the Supreme Court of New Zeland to be a superior Court of that terriroty, for the purposes of this section (with effect from the August, 1938), see Gaz. Of 1958, Pt.

I, P. 455.

The Central Government has declared the Northern Teritorry of Australia to ba reciprocating , and the Supreme Court of the said territory to be a superior court of the territory for the purposes of this section, see Gaz. Of P., 1959, Pt. I, P. 425.

312

Provided that no attachment under a precept shall continue for more than two months unless the

period of attachment is extended by an order of the Court which passed the decree or unless

before the determination of such attachment the decree has been transferred to the Court by

which the attachment has been made and the decree-holder has applied for an order for the sale

of such property.

QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

47. Questions to be determined by the Court executing decree:- (l) All questions arising

between the parties to the suit in which the decree was passed, or their representatives, and relating

to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing

the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a

proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order

payment of any additional court-fees.

(3) Where a question arises as to whether any person is or is representative of a party, such

question shall, for the purpose of this section, be determined by the Court.

Explanation.- For the purposes of this section, a plaintiff whose suit has been dismissed and a

defendant against whom a suit has been dismissed, are parties to the suit.

LIMIT OF TIME FOR EXECUTION

148 Execution barred in certain cases:- (1) Where an application to execute a decree not

being a decree granting an injunction has been made, no order for the execution of the same decree

shall be made upon any fresh application presented after the expiration of 2[six years] from.

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the

delivery of any property to be made at a certain date or at recurring periods, the

date of the default in making the payment or delivery in respect of which the

applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed-

(a) to preclude the Court from ordering the execution of a decree upon an application

presented after the expiration of the said term of six years, where the judgment-

debtor has, by fraud or force, prevented the execution of the decree at some time

within six years immediately before the date of the application;or

1 This section has been amended in its application to Sind by the Sind Rural Credit and Land Transper Act, 1947, (49 of 1947), s. 18. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch. For “twelve years”.

313

(b) to limit or otherwise affect the operation of article 1[183 of the First Schedule to

the Limitation Act, 1908.]

TRANSFER FEES AND LEGAL REPRESENTATIVES:

49. Transfer:- Every transferee of a decree shall bold the same subject to the equities (if

any) which the judgment-debtor might have enforced against the original decree-bolder.

50. Legal represntative:- (l) Where a judgment-debtor dies before the decree has been

fullysatisfied; the holder of the decree may apply to the Court which passed it to execute the same

against the legal Representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only

to the extent of the property of the deceased which has come to his hands and has not been duty

disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may,

of its own motion or on the application of the decree holder, compel such legal Representative to

produce such accounts as it thinks fit.

PROCEDURE IN EXECUTION

51. Powers of Court to enforce execution:-Subject to such conditions and limitations as

may be prescribed, the Court may, on the application of the decree-holder order execution of the

decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property ;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require.

2[Provided that, 3* * * execution by detention in prison shall not be ordered unless, after

giving the judgment debtor an opportunity of showing cause why he should not be committed to

prison, the Court, for reasons recorded in writing, is satisfied:-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the

execution of the decree,-.

1 Subs. by the Code of Civil Procedure (Amdt.) Act, 1940 (34 of 1940) s. 3, for “ 180 of the Second Schedule to the Indian Limitation Act, 1877. 2 Provided and Explanation were ins. by the Code of Civil Procedure (Amdt.) Act, 1936 (21 of 1936), s. 2. 3 The words and commas, “where the decree is for the payment of money”, were omitted by the Code of Civil Procedure (Amdt.), Ordinance,

1980 (10 of 1980), s. 4.

314

(i) is likely to abscond or leave the local limits of the jurisdiction of the

Court; or

(ii) has, after the institution of the decree was passed, dishonestly transferred,

concealed, or removed any part committed any other act of to his

property;or

(b) that the judgment-debtor has, or has had date of the decree, the means to pay the decree

or some substantial part thereof or neglects or has refused or neglected same ; or

(c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary

capacity to account.

Explanation - In the calculation of the means of the judgment-debtor for the purposes of

clause (b), there shall be left out of account any property which by or under any law or custom

having the force of 1~w for the time being in force, is exempt from attachment in execution of the

decree.]

52. Enforcement of decree agaionst legal representative -(l) Where a decree is passed

against a party as the legal representative of a deceased person, and the decree is for the payment

of money out of the property of the deceased, it may be executed by the attachment and sale of

any such property.

(2) Where no such property remains In the possession of the judgment-debtor and he fails

to satisfy the Court that he has duly applied such property of the deceased as is proved to have

come into his possession, the decree may be executed against the judgment debtor to the extent of

the property in respect of which he has failed so to satisfy the Court in the same manner as if they

decree had been against him personally.

53. Liability of ancestral property: For the purposes of section 50 and section 52,

property in the hands of a son or other descendant which is liable under Hindu law for the payment

of the debt, of a deceased ancestor, in respect of which a decree has been passed, shall be deemed

to be property of the deceased which has come to the hands of the son or other descendant as his

legal representative.

54. Partition of estate of seperation of share: Where the decree is for the partition of an

undivided estate assessed to the payment of revenue to 1[the Government] or for the separate

possession of a share of such as estate, the partition of the estate or the separation of the share shall

be made by the Collector or any gazetted subordinate of the Collector deputed by him in this

behalf, in accordance with the law (if any) for the time being in force relating to the partition, or

the separate possession of shares, of such estates.

ARREST AND DETENTION

1 The Orininal words “the Government” were first subs. by A. O., 1937 and then amended by A.O., 1961, Art. 2 (with effect from the 23rd March,

1956), to reas as above.

315

55. Arrest and detention:-- (l) A judgment-debtor may be arrested in execution of a decree

at any hour and on any day, and shall, as soon as practicable, be brought before the Court 1[which

may make an order for his detention in prison to suffer simple imprisonment for a period not

exceeding one year];

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling

house shall be entered after sunset and before sunrise;

Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless

such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way

present access thereto, but when the officer authorized to make the arrest has duly gained access

to any dwelling-house, he may break open the door of any room in which be has reason to believe

the judgment-debtor is to be found;

Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the

Judgement debtor and who according to the customs of the country does not appear in public, the

officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and,

after allowing a reasonable time for her to withdraw and giving her reasonable facility for

withdrawing, may enter the room for the purpose of making the arrest;

Provided fourthly, that, where the decree in execution of which a judgment-debtor is

arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the

decree and the costs of the arrest to the officer arresting him, such officer shall at once release him;

(2) The 2[Provincial Government] may by notification in the 3[official Gazette], declare

that any person or class of persons whose arrest might be attended with danger or inconvenience

to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with

such procedure as may be prescribed by the Provincial Government in this behalf.

4[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by reason

of undergoing such imprisonment, be discharged from his liability under the decree, but he shall

not be liable to be re-arrested under the decree in execution of which he was so detained in prison.]

56. Prohibition of arrest or detention of women in execution of decree for money: Notwithstanding anything in this Part, the Court the arrest or detention in the 5*prison xecution of

a decree for the payment of money.

657. Subsistence Allowance. Omitted by the Code of Civil Procedure (Amdt) Ordinance,

1980 (Xof 1980), s. 7

1 Certain words which were amended by A.O., 1937, have been subs. by the code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), sl 5. 2 Subs. by A.O., 1937, for “L.G.” 3 Subs. ibid,. for “local official Gazette”. 4 The original sub-sections (3) and (4), as amended by the code of Civil Procedure (Amdt.) Act, 1921 (3 of 1921), s. 2, have been subs. by the code

of Civil Procedure (Amdt.) Ordinance 1980 (10 of 1980), s. 5. 5 The word “civil” was omitted by Ord. 10 of 1980, s.6. 6 S. 57 was amended by A.O., 1937.

316

1[58. Release form detention:- Every person detained in prison in execution of decree

shall be released from such detention, before the expiry of the period of detention, if-

(a) the amount mentioned in the warrant for his detention is paid to the officer in charge

of the prison; or

(b) the decree against him is otherwise fully satisfied; or

(c) the person on whose application he has been detained so requests;

Provided that he shall not be released from such detention without the order of the

Court.]

259. Release on ground of illness. Omitted by the Code of Civil Procedure (Amdt)

Ordinance 1980 (x of 1980), s. 9

ATTACHMENT

60. Property to liable to attachment and sale in execution of decree:- (1) The following

property is liable to attachment and sale in execution of a decree, namely, lands houses or other

buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes,

Government securities, bonds or other securities for money, debts, shares in a corporation and,

save as hereinafter mentioned, all 4other saleable property, movable or immovable, belonging to

the judgment-debtor, or over which or the profits of which. be has a disposing power which he

may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or

by another person in trust of him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale,

namely:-

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the

judgment-debtor, his wife and children, and such personal ornaments as. in accordance

with religious usage, cannot be parted with any woman;

(b) tools of artisans arid, where the judgment-debtor is art agriculturist, his

implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court,

be necessary to enable him to earn his livelihood as such, and such portion of agricultural

produce, or of any class of agricultural produce as may have been declared to be free from

liability under the provisions of the next following section;

1 Subs. by the code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s.8, for the original s. 58. 2 S. 59 was amended by A.O., 1937.

317

(c) houses and other buildings (with the materials ahd the sizes thereof and the land

immediately appurtenant thereto and necessary for their enjoyment) belonging to an

agriculturist and cccupied by him;

(d) books of accounts;

(e) a mere right to sue for damages ;

(f) any right of personal service ;

(g) stipends and gratuities allowed to 1[pensioners of the Government], or payable out of

any service family pension fund notified2 in the 3[official Gazette] by . 4[the] 5[Federal

Government] or the Provincial Government] in this behalf, and political pensions ;.

6[(h) the wages of labourers and domestic servants, whether payable in money or

in kind; 7* * * ;

8[(i) Salary to the extent of the first hundred rupees and one half the remainder;

Provided that where such salary is the salary of a 9[servant of the State] or a servant of a

railway 10*or local authority and the whole or any part of the portion of such salary liable to

attachment has been under attachment, whether continuously or intermittently for a total period of

twenty-four months, such portion shall be exempt from attachment until the expiry of a further

period of twelve months and, where such attachment has been made in execution of one and the

same decree, shall be finally exempt from attachment in execution of that decree;]]

(j) the pay and allowances of persons to whom the 11[12[Pakistan Army Act, 1952],13* *

*

1 The original words “Pensioners of the government” were first subs, by A.O, 1937 and then amended by A.O., 1961, Art. 2(with effect from the 23rd march, 1956), to read as above. 2 For such Notification, see Gazette of India, 1909 Pt. I, p.5. 3 Subs. by A.O., 1937, “Gazette of India”. 4 Subs. ibid., for “ the G.G. in C”. 5 Subs. by F.A.O. 1975, Art. 2 and Table, for “Central Government”. 6 Subs. by the code of Civil Procedure (Second Amdt.) Act, 1937 (9 of 1937), s.2 for the original cls. (h) and (i). The amendments made by that section have no effect in respect of any proceedings arising out of a suit instituted before the 1st June, 1937: see ibid., s.3. 7 The words”and salary, to the extent of the first hundred rupees and one-half the remainder of such salary” omitted by the Code of Civil Procefure

(Amdt.) Act, 1943 (5 of 1943) , s. 2. 8 Subs. for the existing cl. (i) and the proviso thereto ibid. 9 Subs. by A.O., 1961, Art. 2 and Sch., for “servant of the Crown” (with effect from the 23rd March,, 1956).

10 The word “company” omitted by the Code of Civil Procefure (Amdt.) Ordinance, 1962 (44 of 1962), s. 13. 11 Subs. by A.O., 1937, for “Indian Articles of War apply” . 12 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch., for “Indian Army Act, 1911” (with effect from the 14th October, 1955). 13 The words “or the burma Army Act” omitted by A.O., 1949.

318

applies]. 1[or of persons other than commissioned officers to whom the 2[Pakistan Navy

Ordinance, 1961] (XXXV of 1961) applies];

(k) all compulsory deposits and other sums in or derived from any fund to which the

Provident Funds Act 3[1925], for the time being applies in so far as they are declared by

the said Act not to be liable to attachment;

4(l) any allowance forming part of the emoluments of any 5[servant of the State] or of any

servant of a railway 6*or local authority which the 7[appropriate Government] may by

notification8 in the 9[official Gazette] declare to be exempt from attachment, and any

subsistence grant or allowance made to 10[any such servant] while under suspension;

(m) an expectancy of succession by survivorship or other, merely contingent or possible

right or interest;

(n) A right to future maintenance;

(o) Any allowance declared by 11[any Pakistan law] to be exempt from liability to

attachment or sale in execution of a decree; and

(p) Where the judgment debtor is a person liable for the pays merit of land revenue,

any movable property which, under any law for the time being applicable to him,

is exempt from sale for the recovery of an arrear of such revenue.

12[Explanation 1].- The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt

from attachment or sale whether before or after they are actually payable, 13[and in the case of

salary other than salary of a 14[servant of the State] or a servant of a railway 15* or local authority

the attachable portion thereof is exempt from attachment until it is actually payable].

1 Ins. by the amending Act, 1934 (35 of 1934) , S.2 and Sch. 2 Subs. by the Federal Laws (Revision and Declaration) Ordiance, 1981 (27 of 1981), s.3 and Second Sch., for “Naval Discipline Act as modified

by the Pakistan Navy (Discipline)” Act, 1934”. 3 Subs. by the code of civil Procedure (Second Amdt.) Act, 1937 (9 of 1937), s.2 for “1897”. 4 Subs. ibid., for the original clause. See also foot-not 6 on preceding page. 5 Subs. by A.O., 1961, Art, 2 and Sch. (with effect from the 23rd March,, 1956) , for “servant of the Crown” which had been subs. by the code of civil Procedure (Amdt.) Act, 1943 (5 of 1943), s. 2, for “”public officer”. 6 The word “ company “ omitted by the Code of Civil Procedure (Amdt). Ordinance, 1962 (44 of 1962), s. 13. 7 Subs. by A.O., 1937, for “G.G. in C.”. 8 For notification exempting certain allowance payable to any public officers in the servie of the Central Government, or any servant of a Federal

Railway or of a cantonment authority or of the port authority of a major port, for attachment, see G. of I. Judicial Department Notification No.

186/37, dated 2nd October, 1940, publichsed in the supplement to Gen. R. & O., Pt. II, Vol. VI, p.253. 9 Subs. by A.O., 1937, for “Gazette of India”. 10 Subs. by Act 5 of 1943, s.2, for “any such officer or servant”. 11 The original words “any law passed under the Indian Council Acts’1861 and 1892” have successively been amended by A.O., 1937, and A.O., 1949, to read as above. 12 The original Explanation was re-numbered as Explanation 1 by the code of Civil Procedure (Second Amdt.) Act, 1937 (9 of 1937), s.2. 13 Ins. ibid,. See also foot-note 6 on page 357, supra. 14 Subs. for the existing cl. (i) and the proviso thereto ibid. 15 Subs. by A.O., 1961, Art. 2 and Sch., for “servant of the Crown” (with effect from the 23rd March,, 1956).

319

1[Explanation 2.-In clauses (h) and (1), "salary" means the total monthly emoluments,

excluding any allowance declared exempt from attachment under the provisions of clause (1),

derived by a person from his employment whether on duty or on leave.]

2[Explanation 3: clause (I) "appropriate Government" means-

(i) As respects any 3[person] in the service of the 4[Federal Government], or any

servant 5[of railway or] 6***cantonment authority or the port authority of a port,

the 8[Federal Government];

7* * * * * * * * * * *

*

(iii) As respects any other 3[servant of the State] or a servant of any 8***local

authority, the Provincial Government].

(2) Nothing in this section shall be deemed-.

9*to exempt houses and other buildings (with the materials and the sites thereof and the lands

immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in

execution of decrees for rent of any such house, building, site or land, *1

1* * * * * * * * * * * * *

61. Partial exemtpion of agricultural produce: The 10[Provincial Government] 11***may. by general or special order published in the 12[Official Gazette, declare that such portion

of agricultural produce, or of any class of agriculture produce, as may appear to the Provincial

Government to be for the purpose of providing until the next harvest for the due cultivation of the

land and for the support judgment-debtor and his family, shall, in the case of all turists or of any

class of agriculturist be exempted from to attachment or sale in execution of a decree.

62. Seizure of property in dwelling house: (1) No person executing any process under

this directing or authorizing seizure of movable property shall any dw1diling.house after sunset

and before sunrise.

1 Explanation 2 was added by Act 9 of 1937, s. 2. See also foot-note 6 on page 357, supra. 2 Explanation 3 ins. by A.O., 1937. 3 Subs. by Act 5 of 1943, s.2, for “public officer” . 4 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”. 5 Ins. ibid. Art. 2 and Sch. (with effect from the 14th August, 1973). 6 The original words “of a Federal Railway or” as amended by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd march, 1956), have been omitted by the Code of Civil Procedure (Amdt.) Ordinance, 1962 ((44 of 1962), s.13. 7 C,. (ii) omitted by A.O., 1949. 8 The original words “other railway or” as amended by ord. 44 of 1962 s.13, have been omitted by F.A.O., 1975, Art. 2 and Sch. (with effect from the 14th August, 1973). 9 The letter and brackets “(a)”, the word “or”, and c;. (b) rep. by the Repealing and Amending Act, 1914 (10 of 1914), s.3 and 2nd Sch. 10 Subs. by A.O., 1937, for “L.G.”. 11 The words “with the previous sanction of the G.G. in C.”, rep. by the Devolution Act, 1920 (38 of 1920), s. 2 and Sch. Pt. I. 12 Subs. by A.O., 1937, for ‘local official Gazette”.

320

(2) No outer-door of a dwelling-house shall be broken open unl~ss such dwelling-house is

in the occupancy of the judgment. debtor and he refuses or in any way prevents access thereto, but

when the person executing any such process has duly gained access to any dwelling-house, he may

break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occuo pancy of a woman who,

according to the customs of the country does not appear in public, the person executing the process

shall give notice to such woman that she is at liberty to withdraw ; and, after allowing reasonable

time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such

room for the purpose, of seizing the property, using at the same time every precaution, consistent

with these provisions, to prevent its clandestine removal.

63. Property attached in execution of decrees of several Courts:- (1) Where property not in the

custody of any Court is under attachment in execution of decrees of more Courts than one, the

Court which shall receive or realize such property and shall determine any claim thereto and any

objection to the attachment thereof shall be the Court of highest grade, or, where there is no

difference in grade between such Courts, the Court under whose decree the property was first

attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court

executing one of such decrees.

64. Private alienation of property after attachement to be void: Where an attachment

has been made, any private transfer or delivery of the property attached or of any interest therein

and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such

attachment, shall be void as against all claims enforceable under the attachment.

Explanation: For the purposes of this section, claims enforce under an attachment include claims

for the rateable distribution of assets.

SALE

65. Purchaser`s title: Where immovable property is sold in execution of a decree and

such sale has become absolute, the property shall be deemed to have vested in the purchaser

from the time when the property is sold and not from the time when the sale becomes absolute.

66. Suit against purchaser not maintable on ground of purchase being on behalf of

plaintiff: (l) No suit shall be maintained against any person claiming title under a purchase

certified by the Court in such manner as may be prescribed on the ground that the purchase was

made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any

purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent

of the real purchaser, or interfere with the right of a third person to proceed against that property,

321

though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of

such third person against the real owner,

1[67. (1)] Power for Provincial Government to make rules as to sales of land in

execution of decrees for payment of money:- (l) The 2[Provincial Government] 3***may by

notification in the 4[Official Gazette], make rules for any local area imposing conditions in respect

of the sale of any class of interest in land in executing of decrees for the payment of money, where

such interests are so uncertain or undetermined as in the opinion of the Provincial Government, to

make it impossible to fix their value.

5(2) When on the date on which this Code came into operation in any local area, any

special rules as to sale of land in execution of decrees were in force therein, the 6[Provincial

Government] may, by notification in the 7[official Gazette] declare such rules to be in force, or

may, 8***by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this subsection shall set out

the rules so continued or modified.

DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES

AGAINST IMMOVABLE PROPERTY

68. Power to prescribe rules for transferring to Collector execution of certain decrees: The Provincial Government may declare by notification in the official Gazette that in any local

area the execution of decrees in cases in which a Court has ordered any immovable property to be

sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering

the sale of any particular kind of, or interest in immovable property, shall be transferred to the

Collector.

69. Provisions of Third Schedule to apply: The provisions set forth in the Third Schedule

shall apply to all cases in which the execution of a decree has been transferred under the last

preceding section.

70. Rules of procedure:- (l) The Provincial Government may make rules consistent with

the aforesaid provisions-

(a) for the transmission of the decree from the Court to the Collector, and for regulating the

procedure of the Collector and his subordinates in executing the same, and for re-transmitting the

decree from the Collector to the Court;

1 The original s. 67 was re-numbered as sub-section (1) of that section by the Code of Civil Procedure (Amdt.) Act, 1914 (1 of 19140) , s.3. 2 Subs. by A.O., 1937, for “L.G.” . 3 The words “with the previous sactions of the G.G. in C.” omitted by the Devolution Act, 1920 (38 of 1920), s.2 and First Sch., Pt.I. 4 Subs. by A.O., 1937, for “local official Gazette”. 5 Sub-section (2) was ins. by theCode of Civil Procedure (Amdt,) Act, 1914 (1 of 1914), s.3. 6 Subs. by A.O., 1937, for “L.G.” . 7 Subs. ibid., for “local official Gazette” . 8 The words “with the previous sanction of the G.G. in C.” were omitted by the Devolution Act, 1920 (38 of 1920), s. 2 and First Sch. Pt.I.

322

(b) confering upon the collector or any gazatted subordinate of the Collector all or any of the

powers which the Court might exercise in the execution of the decree if the execution thereof had

not been transferred to the Collector;

(c) providing for orders made by the Collector or any gazzated subordiante of the Collector, or

orders on appeal with respect to such orders, being subject to appeal to, and revision by, superior

revenue authorities as nearly as may be as the orders made by the court,

or orders made on appeal with respect to such orders would be subject to appeal to and revision

by, appellate or revisional Courts under this Code or other law for the time being in force if the

decree had not been transferred to the Collector

Jurisdiction of Civil Courts barred: (2) A power conferred by rules made under sub-

section (1) upon the Collector or any gazatted sunordinate of the Collector or upon any appellate

or revisional authority, shall not be exercisable by the Court or by any Court in exercise of any

appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court.

71. Collector deemed to be acting judicially: In executing a decree transferred to the

Collector under section 68 the Collector and his subordiantes shall be deemed to be acting

judicially.

72. Where the Court may authroize Collector to stay public sale of land: (1) where in

any local area in which no declaration under section 68 is in force the propertyu attached consists

of land or of a share in land, and the Collector represents to the Court that the public sale of the

land or share is objectionable and that satisfaction of the decree may be made within a reasonable

period by temporary alienation of the land or share the Court may authorise the Collector to provide

for such satisfaction in the manner recommended by him instead of proceeding to a slae of the land

or share.

(2) in every such cases the provisions of section 69 to 71 and of any rules made in pursuance

thereof shall apply so far as they are applicable.

DISTRIBUTION OF ASSESTS

73. Proceeds of execution sale to be rateably distributed among decree holders:- (1)

Where assets are held by a Court and more persons than one have before the recipt of such assets,

made application to the Court for the execution of decrees for the payment of money passed against

the same judgment-debtor and have not obtained satisfaction thereof the assets after deducting the

costs of realization, shall be rateably distributed among all scuh persons;

Provided as follows:-

(a) where any property is sold subjects to a mortgage or charge, the mortgage or charge,

the mortgage or incumbrancer shall not be entitled to share in any surplus arising from such sale;

323

(b) where any property liable to be sold in execution of a decrere in subject to a mortgage

or charge, the Court may with the consent of the mortgage or incumbrabcer, order that the property

be sold free from the mortgage or charge giving to the mortgage or incumbrancer the same interests

in the proceeds of the sale as he held in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the

dischargable of an incumbrance thereon, the proceeds of sale shall be applied- secondly in

discharging the amount due under the decree;

Thirdly in discharging the interest and principal monies due to subsequent incumbrances

(if any); and

Fourtly, rateably among the holders of decrees for the payment of money against the

judgment debtor who have,prior to the sale of the property, applied to the Court which passed the

decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are paid

to a person not entitled to receive the same any person so entitled may sue such person to compel

him to refund the assets.

(3) Nothing in this section affects any right of 1[the Government].

RESISTANCE TO EXECUTION

2[74. Resistance to execution:- (l) Where the Court is satisfied that the holder of a decree

for the possession of property or a purchaser of property sold in execution of a decree has been

resisted or obstructed in obtaining possession of the property by the judgment-debtor or any other

person on his behalf and that such resistance or obstruction was without any just cause, the Court

may, at the instance of the decree holder or the purchaser, order the judgment-debtor or such other

person to undergo simple imprisonment for a term which may extend to thirty days and may further

direct that the decree-holder or the purchaser be put into possession of the property.

(2) Notwithstanding anything contained in subsection (1), where a judgment-debtor or my

other person resists or obstructs the execution of a decree, the Court may direct the officer in

charge of the police-station within whose jurisdiction the judgment-debtor or such other person

resides or where the property to which the decree relates is situate to provide, the necessary police

assistance for the execution of the decree.

1 The original words “the Government” were first subs. by A.O. 1937, and then amended by A.O., 1961, Art. 2 (with effect form the 23rd march,

1956) to read as above. 2 Subs by the Code of Civil Procedure (Amdt.) Ordinance , 1980 (10 of 1980), s. 10, for the original s.74.

324

INCIDENTAL PROCEEDINGS COMMISSIONS

75. Power of Courts to issue commissions: Subject to such conditions .and limitations as

may. be prescribed the Court may issue a commission-..

(a) to examine any person ;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition.

76. Commission to an other Court: (1) A commission for the examination of any person

Commission may be issued to any Court (not being a High Court) situate in a Province other than

Province in which the Court of issue is situate and having jurisdiction in the place in which the

person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under

subsection (1) shall examine him or cause him to be examined pursuant thereto, and the

commission, when it has been duly executed, shall be returned together with the evidence taken

under it to the Court from which it was issued, unless the order for issuing the commission has

otherwise directed in which case the commission shall be returned in terms of such order.

77. Letter of request: In lieu of issuing a commission the Court may issue a Letter of

letter of request to examine a witness residing at any place not request within 1[Pakistan].

78. Commissions issued by foreign Courts: 2[Subject to such conditions and limitations

as may be prescribed, the provisions as to the execution and return of come by foreign missions

for the examination of witnesses shall apply to commission issued by or at the instance of]

(a)Courts situate beyond the limits of 2[Pakistan and established] or continued by the

authority of 3***4[the 5[Federal Government]6***], or

(b) Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981),

s.3 and Second Schedule

1 Subs. by the Central Laws (Statute Reforms) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the

Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”. 2 Ins. by the Code of Civil Procedure (Amdt.) Act, 1932 (10 of 1932), section 2. 3 The words “His Majesty or of” omitted by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd march, 1956).). 4 Subs. by A.O., 1937 for “the G.G.in C.”. 5 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”. 6 The words “or of the Crown Representative” omitted by A.O. , 1949.

325

1* * * * * * * * * * * * *

(c) Courts of any State or country outside Pakistan.

___________________

PART IV

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST THE GOVERNEMNT] OR PUBLIC OFFICERS

IN THEIR OFFICIAL CAPACITY

2[79. Suit by or against the Government:-

3***In a suit by or against the 4[Government] the authority to be named as plaintiff or defendants

as the case may be, shall be-

(a) in the case of a suit by or against the 5[Federal Government], 6[Pakistan];

(b) in the case of a suit by or against a Provincial Government, the Province; and 7* * * * * * * * * * * * *

8[80. Notice:- (l) A suit may be instituted against the Government or against a public

officer, In respect of any act purporting to be done by such public officer in his official capacity,

after the expiration of two months next after notice in writing has been delivered to or left at the

office of-

(a) in the case of a suit against the Federal Government, a Secretary to that

Government;

(b) (i) In the case of a suit against the Provincial Government other than a suit

relating to the affairs of a Railway, a Secretary to that Government or the.

Collector of the District; and

1 Clause (b) as amended by A.O., 1949 and Act 10 of 1932, s.2, has been omitted by the Federal laws (Revision and Declaration) Ordinance,

1981 (27 of 1981), s.3 and Second Sch., 2 Subs. by A.O., 1937, for the original s.79. 3 The words 2nd figures “Subject to the provisions of sections 179 and 185 of the Government of India Act, 1935,” omitted the Federal Laws

(Revision and Declaration ) Act 1951, (26 of 1951), s.3 and 2nd Sch.. 4 Subs. by A.O., 1961, Art. 2 for “Crown” (with effect from the 23rd March, 1956). 5 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”. 6 The original words “the Governor General in Council before the establishment of the Federation of India, and thereafter, the Federation” have successively been amended by AO., 1949 , Act 26 of 1951, s.3 and 2nd Sch. and the Code of Civil Procedure (Amdt.) Ordinance 1962 (44 of

1962), s. 14, to read as above. 7 Cl. (c) omitted by A.O., 1949. 8 The original s. 80 has successively been amended by A.O., 1937, the Code of Civil. Procedure (Amdt) Act, 1948 (7 of 1948), s. 2, A.O., 1949,

A.O. 1961, Art. 2 (with effect form the 23rd March, 1956) and Ord. 44 of 1962, s.15. to read as above.

326

(ii) In the case of a suit against the 1[Federal Government] relating to the

affairs of a Railway, the General Manager of the Railway concerned,

and in the case of a public officer, delivered to him or left at his office stating the cause of' action,

the name, description of place of residence of the plaintiff and the relief which he claims ; and the

plaint shall contain a statement that such notice has been so delivered or left.

(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid

or before the expiration of the said period of two months or where the plaint does not contain a

statement that such notice has been so delivered or left, the plaintiff shill not be entitled to any

costs if settlement as regards the subject-matter of the suit is reached or the Government or the

public officer concedes the plaintiff's claim, within the period of two months from the date of the

institution of the suit:

Provided that in a suit instituted without such notice, the Court shall allow not less than

three months to the Government to submit its written statement.

81. Exemption from arrest and personal apperance: In a suit instituted against a public

officer in respect of any act purporting to be done by him in his official capacity-

(a) the defendant shall not be liable to arrest nor his property to attachment, otherwise than

in execution of a decree, and

(b) where the Court is satisfied that the defendant cannot absent himself from his duty

without determent to the public service, it shall exempt him from appearing in person.

82. Execution of decree:- (l) Where the decree is against 2[the Government] or Execution

against a public officer in respect of any such act as aforesaid, a of decree time shall be specified

in the decree within which it shall be satisfied ; and if the decree is not satisfied within the time so

specified, the Court shall report the case for 'the orders of the 3[Provincial Government.]

(2) Execution shall not be issued on any such decree unless it remains ununsatisfied for the

period of three months computed from the date of such report.

4[SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULES,

AMBASSADORS AND ENVOYS]

1 Subs. by F.A.O. 1975, Art. 2 and Sch. (with effect form the 14th August, 1973), for “Provincial Government” . 2 The original words “the Secretary of State for India in Council” were first subs. by A.O., 1937 and then amended by A.O., 1961, Art. 2 (with effect from the 23rd march, 1956), to read as above. 3 Subs. by A.O., 1937, for “L.G.” . 4 Subs. by the Code of civil Procedure (Amdt.) Ordinance, 1960 (22 of 1960), s.2, for “SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS AND RULERS OF ACCEDING STATES” as amended by A.O., 1937 and the Federal Laws (Revision and Declaration) Act, 1951 (26

of 1951), s.4 and 3rd Sch.

327

83. Why aliens may sue:- (1) Alien enemies residing 1[in Pakistan] with the permission

of the 2[Federal Government], an alien friends, may sue in the Courts 3[in the Provinces], as if

they were 4[Citizens of Pakistan].

(2) No alien enemy residing 2[in Pakistan] without such permission, or residing in a foreign

country, shall sue in any of such Courts.

Explanation.-Every person residing in a foreign country the Government of which is at war with 5[or engaged in military operations against] 6[Pakistan], and carrying on business in that country

without a license in that behalf under the hand 7***of a Secretary to the 8[Federal Government]

shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign

country.

84.When foreign states may sue:- (1) A foreign State may sue in any Court [in the

Province]:

Provided that such State has been recognized by 9***the Federal Government:

Provided, also, that the object of the suit is to enforce a private right vested in the head of

such State or in any officer of such State iii his public capacity.

(2) Every Court shall take judicial notice of the fact that a foreign State has or has not been

recognized by the Federal Government.

85. Persons specially appointed by Government to prosecute or defend for Rulers of

foreign State: 10(1) Persons specially appointed by order of the 11[Federal Government] at the

request of the Ruler of any foreign State, or at the request of any person competent, in the opinion

of the Federal Government to act on behalf of such Ruler, to prosecute or defend any suit on his

behalf, shall be deemed to be the recognized agents by whom appearances acts and applications

under this Code may be made or done on behalf of such Ruler.

12* * * * * * * * * * * * *

1 Subs. by A.O., 1949, for “in British India”. 2 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government” which had been subs. by A.O., 1937, for “G,.G” in C”. 3 Subs. by A.O., 1949, for “ of British India”. 4 Subs. by A.O., 1961, Art. 2 and Sch. For “Subjects of His Majesty” (with effect form the 23rd March, 1956). 5 Ins. by the code of Civil Procedure (Amdt.) Act, 1965 (19 of 1965), s.2. 6 Subs. by A.O., 1949, for “the United Kingdom of Great Britian and Ireland”. 7 The words “of one of His Majesty’s Secretaries of State or” omitted, ibid. 8 Subs. by F.A.O., 1975, Art. 2 and Table for “Central Government” which had been subs. by A.O., 1937, for “Government of India”. 9 The words “His majesty or by” omitted by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956). 10 Subs. and shall be deemed to have been so subs. on the 14th day of Octover, 1955, by the Code of Civil Procedure (Amdt.) Ordinance, 1960 (22

of 1960), s.3, for the existing sub-section (1), as amended by A.O., 1949 and the Central laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3

and 2nd Sch. 11 Subs. by F.A.O., 1975, Art. 2 and table, for “Central Governemnt”. 12 The Explanation which had been ins. by A.O., 1937, omitted by A.O. 1949.

328

(2) An appointment under this section may be made for the purpose of a specified suit or

of several specified suits, or for the purpose of all such suits as it may from time to time be

necessary to prosecute or defend on behalf of the 1[Ruler].

(3) A person appointed under this section may authorize or appoint persons to make

appearances and applications and do acts in any such suit or suits as if he were himself a party

thereto.

286. Suits against Rulers. Repealed by the State Immunity Ordinance, 1981 (vi of

1981), s.19

86-A. Suits agianst diploamtic agents:- (1) No proceeding in any Court shall lie against

a diplomatic agent except in a case relating to-

(a) any private immovable property situated in Pakistan held by him in his private

capacity and not on behalf of the sending State for the purpose of the mission;

(b) a succession in which the diplomatic agent is Involved as executor, administrator,

heir or legates as a private person and not on behalf of the sending State;

(c) any professional or commercial activity exercised by the diplomatic agent in

Pakistan outside his official functions.

(2) No measures of execution shall be taken in respect of a diplomatic agent except in cases

which Come under clauses (a), (b) and (c) of subsection (1) and in which such measures can be

taken without infringing the inviolability of his person or of his residence.

(3) The initiation of any proceedings in a Court by a diplomatic agent shall, preclude him

from invoking immunity from jurisdiction under this section in respect of any counter-claim

directly connected with the principal claim.

(4) The immunity of a diplomatic agent under subsection (1) or subsection (2) may be

waived by~ the sending State; and any such waiver shall be express.

(5) Waiver of immunity in respect of any proceedings shall not be held to imply waiver of

immunity in respect of any measure of execution for which a separate waiver still be necessary.

(6) in this section, 'diplomatic agent' in relation to a State means the head of the mission in

Pakistan of that State and includes a member of the staff of that mission having diplomatic rank.

1 Subs. and shall be deemed to have been so subs. on the 14th day of October, 1955, by Ordinance 22 of 1960, s.3 for “Prince or Chief”. 2 This section was previously amended from time to time by various enactments.

329

187. Style of Rulers as Parties to suits. Repealed by the State Immunity Ordinance, 1981

(VI of 1981), s. 19.

2* * *

387-A. Application of sections 85 and 86 to Rulers of acceding States.]. Omitted by the

Code of Civil Procedure (AMDT) Act, 1972 (II of 1972), s.2

INTERPLEADER

88. Where inter pleader suit may be instituted: Where two or more persons claim

adversely to one another the same debt, sum of money or other property movable or immovable,

from another person, who claims no interest therein other than or charges or costs and who is ready

to pay or deliver it to the rightful claimant, such other person may institute a suit of' interpleader

against all the claimants for the purpose of obtaining a decision as to the person to whom the

payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided,

no such suit of interpleader shall be instituted,

__________________

PART V SPECIAL PROCEEDINGS

ARBITRATION

89. [Arbitration] Omitted by the Arbitration Act, 1940 (X of 1940), S. 49 and Third

Schedule.

1[89 A. Alterante dispute resolution:- The Court may, where it considers necessary

having regard to the facts and circumstances of the case, with the object of securing expeditious

disposal of a case in or in relation to a suit, adopt with the consent of the parties alternate dispute

resolution method, including medaitaion and conciliation].

SPECIAL CASE

90. Power to state for opinion of Court: Where any persons agree in writing to state a case for

the opinion of the Court, then the Court shall try and determine the same in the manner

1 This section was previously amended by various enactments from time to time. 2 The heading “SUITS AGAINST RULERS OF ACCEDING AND MERGED STATES” as ins. by Ord. 22 of 1960, s.6, has been omitted by the Code of Civil Procedure (Amdt.) Act, 1972 (2 of 1972), s.2. 3 S. 87A was ins. by Ord. 22 of 1960, s.6.

330

prescribed.

SUITS RELATING TO PUBLIC MATTERS

91. Public nuisances: (1)In the case of a public nuisance the Advocate-General, or two or

more persons having obtained the consent in writing of the Advocate-General, may institute a suit,

though no special damage has been caused, for a declaration and injunction or for such other relief

as may be appropriate to the circumstances of the case.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit

which may exist independently of its provisions.

92. Public charities:- (l) in the case of any alleged breach of any express or constructive trust

created for public purposes of a charitable or religious nature, or where the direction of the Court

is deemed necessary for the administration of any such trust, the Advocate. General, or two or

more persons having an interest in the trust and having obtained the consent in writing of the

Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of

original jurisdiction or in any other Court empowered in that behalf by the 1[Provincial

Government] within the local limits of whose jurisdiction the whole or any part of the subject

matter of the trust is situate, to obtain a decree-

(a) removing any trustee,

(b) appointing a flew trustee ;

(c) vesting any property in a trustee ;

(d) directing accounts and inquiries ;

(e) declaring what proportion of the trust-property or of

the interest therein shall be allocated to any particular

object of the trust ;

(f) authorizing the whole or any part of the trust-property to be let sold,

mortgaged or exchanged;

(g) settling a scheme ; or

(h) granting such further or other relief as the nature of the case may require.

1 Subs. by A.O., 1937, for “L.G.” .

331

(2) Save as provided by the Religious Endowments Act, 1863. no suit claiming any of the reliefs

specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to

except in conformity with the provisions of that subsections,

93. Exercise of powers of Advocate General:- The powers conferred by sections 91 and 92 on

the Advocate-General may, 1***be with the previous sanction of the Provincial Government,

exercised also by the Collector or by such officer as the Provincial Government may appoint in

this behalf.

___________________

PART VI

SUPPLEMENTAL PROCEEDINGS

94. Supplemental Proceedings: In order to prevent the ends of justice from being

defeated the Court may, if it is so prescribed,-

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause

why he should not give security for his appearance, and if' he fails to comply with

any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him

and to place the same at the disposal of the Court or order the attachment of any

property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty

thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by

attaching and selling his property;

95.compensation for obtaining arrest attachament or injuncation on in sufficient

grounds: - (1) Where, in any suit in which an arrest or attachment has been effected or a temporary

injunction granted under the last preceding section.

(a) it appears to the Court that such arrest, attachment or injunction was applied for on

insufficient grounds, or;

(b) the suit of the Plaintiff fails and it appears to the Court that there was no reasonable

or probably ground for instituting the same;

1 The words “outside the Presidency-towns” omitted by A.O., 1949.

332

the defendant may apply to the Court, and the Court may, upon such application, award against

the plaintiff by its order such amount, not exceeding 1[ten thousand] rupees, as it deems a

reasonable compensation to the defendant for the expense of injury caused to him:

Provided that a Court shall not award, under this section, an amount exceeding the limits

of its pecuniary jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in

respect of such arrest, attachment or Injunction.

PART VII

APPEALS FROM ORIGINAL DECREES

96. Appeal from original decree:-- (l) Save where otherwise expressly provided in the

body of this Code or by any other law for the time being in force, an appeal shall lie from every

decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals

from the decisions of such Court.

(2)An appeal may lie from an original decree passed ex-parte.

(3) No appeal shall lie from a decree passed by the Court With the consent of panics.

97. Appeal from final decree where no appeal from perlminary decree: Where any

party aggrieved by a preliminary decree passed after the commencement of this Code does not

appeal from such decree, he shall be precluded from disputing its correctness in any appeal which

may be preferred from the final decree.

98. Decisions where appeal heard by two or more Judges: (l) Where an more Judges,

the appeal opinion of such Judges.

(2)Where there is no such judgment varying or reversing the decree shall be confirmed:

Provided that where the Bench hearing the appeal is composed of two Judges belonging to

a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion

on a point of law, they may state the point of law upon which they differ and the appeal shall then

be heard upon that point only by one or more of the other Judges, and such point shall be decided

according to the opinion of the majority (if any) of the Judges who have heard the appeal, including

those who first heard it.

1 Subs. by Act XIV of 1994, s.8.

333

1(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of

the letters patent any High Court.

99. No decree to be reversed or modified for error or irregularity not affecting merits

or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be

remanded, in appeal on account of any misjoinder of parties or causes of - action or any error,

defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the

jurisdiction of the Court

APPEALS FROM APPEALATE DECEES

100. Second appeal:- (l) Save where otherwise expressly provided - in the body of this Code or

by any ocher law for the time being in force, an appeal shall lie to the High Court from every

decree passed in appeal by any Court subordinate to a High Court on any of the following grounds,

namely:

(a) the decision being contrary to law or to some usage having the force of law.

(b) the decision having failed to determine some material issue of law or usage having

the force of law

(c) a substantial error or defect in the procedure provided by this Code or by any other

law for the time being in force, which may possibly have produced error or defect

in the decision of the case upon the merits.

2* * * * * * * * * * * * *

101. Second appeal or no other grounds: No second appeal shall lie except on the

grounds mentioned in section 100.

3102. No second appeal in certan cases: No second appeal shall lie in any suit of the

nature cognizable by Courts of Small Cuses and in any other suit when the amount or value of the

subject –matter of the original suit does not exceed the amount or value as the Provincial

Govenrmnent may by law determine.

103. Power of High Court to determine issues of fact: In any second appeal the High

Court may, if the evidence on the record is sufficient determine any issue of fact necessary for the

disposal of the appeal 4[which has not been determined by the lower appellate Court or which has

1 Sub-section (3) ins. by the repealing and Amending Act, 1928 (18 of 1928), s.2 and First Sch. 2 Sub-section (2) omitted by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s.11. 3 Subs. by Act. VIII of 04, s.2. 4 Subs. by the Code of Civil Procedure (Amdt.) Act, 1926 (6 of 1926) s.2, for “but not determined by the lower appellate Court”.

334

been wrongly determined by such Court by reason -of any illegality, omission, error or defect such

as is referred to in subsection (1) of section 100. ]

APPEALS PROM ORDERS

104. Orders from which appeal lies:- (1) An appeal. shall lie from the following orders,

and save as otherwise express1y provided In the body of this Code or by any law for the time being

in force, from no other orders: -

1* * * * * * * * * * * * *

2(f) an order under section 35-A;

(ff) an order under section 47;

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the

arrest or detention in the civil prison of any person except where such arrest or

detention is in execution of a decree;

(i) any order made under rules from which an appeal is express1y allowed by rules:

3[Provided that no appeal shall lie against any order specified in clause 4[(f)] save on the

ground that no order, or an order for the payment of a Jess amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section.

105. Others order:- (1) Save as otherwise expressly provided, no appeal shall lie from any

order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree

is appeared from, any error, defect or irregularity in any order, affecting the decision of the case,

may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by

an order of remand made after the commencement of this Code from which an appea11ies does

not appeal there from, he shall thereafter be precluded from disputing its correctness.

106. What Courts to hear appeals: Where an appeal from any order is allowed it shall lie

to the Court to which an appeal would lie from the decree in the suit in which such order was made,

or where such order is made by a Court (not being a High Court) in the exercise of appellate

jurisdiction, then to the High Court.

1 Cls. (a) to (f) omitted by the Arbitration Act, 1940, (10 of 1940), s. 49 and 3rd Sch. 2 Subs. by Ord. 12 of 1972, s.2 and Sch., for cl. (ff) which was previously ins. by the Civil Procedure (Amdt.) Act, 1922, (9 of 1922), s.3. 3 Proviso ins. by the Civil Procedure (Amdt.) Act, 1922 (9 of 1922), s. 3. See also foot note to s. 35A, supra. 4 Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Second Sch. for ‘‘ (ff).’’

335

GENERAL PROVISIONS RELATING TO APPEALS

107. Powers of Appelaite Court:- (1) Subject to such conditions and limitations as may

be prescribed, an Appellate Court shall have power:-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform

as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original

jurisdiction in' respect of suits instituted therein.

108. Procedure in appeals from Appellate decrees and others: The provisions of this

Part relating to appeal from original decrees shall, so far as may be, apply to appeal-

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a

different procedure is not provided.

1APPEALS TO THE 2[SUPREME COURT]

3[109. When appeals lie to the Court: An appeal from a judgment decree or final order

of a High Court shall lie to the Supreme Court -

(a) if the amount or value or the subject-matter or the dispute in the court of first instance

was and also in appeal is (unless varied by an Act or Parliament) fifty thousand rupees or upward

and the judgment decree or final order appealed from has varied or set aside the judgment decree

or final order of the Court immediately below; or

(b) it the judgment, decree or final order involves directly or indirectly, some claim or

question respecting property or the like amount or value and the judgment, decree of final order

1 See also the Federal Court (Enlargement of Jurisdiction) Act, 1949 (1 of 1950), s. 6 and the Privy council (Abolition of Jurisdiction) Act, 1950, s. 9. 2 Subs. by A.O., 1961, Art. 2 and sch., for ‘‘King in Council’’ (with effect from the 23rd March, 1956). 3 The original s. 109 has successively been amended by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960) , s.3 and 2nd Sch. (with effect from the 14th October, 1955) , A.O., 1961, Art.2 and Sch. (with effect from the 23rd March, 1956), and F.A.O., 1975, Art.2 and Sch. (with

effect from the 14th August,1973), to read as above.

336

appealed from has varied of set aside the judgment decree or final order of the Court immediately

below; or

(c) if the High Court certifies that the case involves a substantial question of law as to the

interpretation of the Constitution.].

1110.Value of subject-matter [Omitted by Federal Adaptation of Laws Order (F.O.A of

1975) w.e.f 1st August 1973]

111.Bar of certain appeals: Notwithstanding anything contained in section 109, no

appeal shall lie to the 2[Supreme Court]:

1 This section was amended by A.O., 1961, Art.2 ans Sch. (with effect from the 23rd March, 1956). 2 Subs by A.O., 1961, Art. 2 and Sch., for ‘‘His Majesty in Council’’ (with effect from the 23rd March, 1956).

337

(a) from the decree or order of one Judge of a High Court 1* * *, or of one Judge of

a Division Court, or of two or more Judges of such High .Court, or of a Division Court,

constituted by two or more Judges of such High Court, where such Judges are equally divided in

opinion and do not amount in number to a majority of the whole of the Judges of the High Court

at the time being; or

(b) from any decree from which under section 102 no second appeal lies.

2111.A Appeals to Federal Court:- [Omitted by the Federal Court Act, 1941 (XXI of

1941), s. 2.

112. Savings:- 3(1) Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article 4[191 of the

Constitution or any other provision thereof]; or

(b) to interfere with any rules made by the Supreme Court, and for the time

being in force, for the presentation of appeals to that Court, or their

conduct before that Court.

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty

jurisdiction, or to appeals from orders and decrees of Prize Courts.

_______________

PART VII

REFERENCE REVIEW AND REVISION

113. Reference to High Court. - Subject to such conditions and limitations as may be

prescribed, any Court may state a case and refer the same for the opinion of the High Court, and

the High Court may make such order thereon as it thinks fit.

5[114.-(1) Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no

appeal has been preferred.

1 The existing words ‘‘constituted by His majesty by Letters Patent’’ as amended by A.O., 1937 and Act 13 of 1916. Sch., have been Omitted by

A.O., 1961, Art. 2 ans Sch. (with effect from the 23rd March, 1956). 2 This section was ins. by A.O., 1937. 3 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March 1956), for the original sub-section(1). 4 The words ‘‘ Article 158 of the constitution or any other provision of that Constitution’’ have successively been amended by A.O., 1964, Art. 2 and Sch. and F.A.O., 1975, Art. 2 and Sch. (with effect from the 14th August, 1973), to read as above. 5 Subs. by F.A.O., 1975, Art. 2 and Sch., for the original s. 114.

338

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of

judgment to the Court which passed the decree or made the order. And the Court may

make such order thereon as it thinks fit.

(2) Nothing contained in sub-section (1) shall apply to a review of any judgment

pronounced or order made by the Supreme Court.

1[115.- (1 )] The High Court may call for the record of any case which bas been decided

by any Court subordinate to such High Court and in which no appeal lies thereto, and if such

subordinate Court appears

(a) to .have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material

irregularity, the High Court may make such order in the case as it thinks fit[:]2.

3[Provided that where a person makes an application under this subsection, he shall in

support of such application, furnish copies of the pleadings, documents and order of the

subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such

application without calling for the record of the subordinate Court.[:]

4[Provided further that such application shall be made within ninety days of the decision

of the subordinate Court 5which shall provide a copy of such decision within three days thereof

and the High Court shall dispose of such application within six months.]

[6(2) The District Court may exercise the powers conferred on the High Court by subsection

(I) in respect of any case decided by a Court subordinate to such District Court in which no appeal

lies and the amount or value of the subject-matter whereof does not exceed the limits of the

appellate jurisdiction of the District Court.

(3) If any application under subsection (l) in respect of a case within the competence of the

District Court has been made either to the High Court or the District Court, no further such

application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order

made under subsection (2) by the District Court.]

1 S. 115 re-numbered as sub-section (1) of that section by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. 2 Subs. by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s.13, for full stop. 3 Proviso added ibid. 4 Subs added by Act VI of 1992, s. 3. 5 Added by Act. XIV of 1994, s.10 6 Sub-sections (2), (3) and (4) were added by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch.

339

____________________

PART IX

SPECIAL PROVISIONS RELATING TO1 * * HIGH COURT

116. Part to apply only to certain High Courts 2: * * *

117. Application of Code to High Court: Save as provided in this Part or in Part X or in

rules, the provisions of this Code shall apply to3* High Courts.

118. Execution of decree before ascertainment of costs: Where any4* High Court

considers it necessary that a decree passed in the exercise of its original civil jurisdiction should

be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the

Court may order that the decree shall be executed forthwith except as to so much thereof as relates

to the costs;

and as to so much thereof as relates to the costs, that the decree may be executed as soon as the

amount of the costs shall be ascertained by taxation.

119. Unathorised person not to address Courts: Nothing in this Code shall be deemed

to authorize any person on behalf of another to address the Court in the exercise of its original civil

jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the

power conferred by its charter authorized him so to do, or to interfere with the power of the High

Court to make rules concerning advocates, vakils and attorneys.

120. Provisions not applicable to High Court in original civil jurisdiction: (1) The

following provisions shall not apply to the High Court in the exercise of its original civil

jurisdiction, namely, sections 16, 17 and 20.

5* * * * * * * * *

_____________

1 The words ‘‘ THE CHARTERED’’ have been omitted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch.

(with effect from the 14th October,1955). 2 The words ‘‘which are, or may hereafter be, constituted by His Majesty by Letters Patent’’ as amended by A.O., 1937 and Act 13 of 1916, Sch.,

have been omitted by Ord. 21 of 1960. s.3 and 2nd Sch. (with effect from the 14th October, 1955). 3The word ‘‘ such’’ has been omitted by Ord. 21 of 1960, s. 3 and 2nd Sch. (with effect from the 14th October, 1955). 4 Added by Act. XIV of 1994, s.10 5 Sub-section (2) omitted by the Presidency-towns Insolvency Act, 1909 (3 of 1909), s. 127 and Third Sch.

340

PART X

RULES

121. Effect of rules in First Schedule: The rules in the First Schedule shall have effect as

if enacted in ,the body or this Code until annulled pt altered in accordance with the provisions or

this Part.

122. 1[ The High Courts] 2 * * * may, from time to time after previous publication,

make rules regulating their own procedure and the procedure of the civil Courts subject to their

superintendence, and may by such rules annul, alter or ad to all of any of the rules in the First

Schedule.

123 Constitution of Rules Committees in certain Provinces:- (I) A Committee, to be

called the Rule Committee, shall be constituted at 3[the town which is the usual place of sitting of

each of the High Courts4 * * * 5* * *referred to in section 122].

(2) Each such Committee shall consist of the following persona namely:-

(a) three Judges of the High Court established at the town at which such Committee

is constituted, one of whom at least has served as a District Judge or 6***a

Divisional Judge for three years.

7* * * * * * * * * * * *

*

(b) Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of

1981), s.3 and Second Schedule

8[(c) two advocates practising in that Court and.

(d) a Judge of a Civil Court subordinate to the High Court,

9* * * * * * * * * * * * *

1 Subs. by the Central Laws (Statute Reform) ordinance, 1960 (21 of 1960),s. 3 ad 2nd Sch. (with effect from the 14th October, 1955), for ‘‘Courts

which are High Court for the purposes of the Government of India Act, 1935’’ as amended by A.O., 1937, A. O., 1949 and the Oudh Courts (Supplementary) Act, 1925 (32 of 1925), s.2 and Sch. 2 The words ‘‘ and the Chief Court of Lower Burma’’ were omitted by the Repealing and Amending Act, 1923 (11 of 1923), s. 3 and Second Sch.

The words ‘‘Chief Court of Lower Burma’’ had been previously subs., for ‘‘Chief Courts of the Panjab and Lower Burma’’ by the repealing and Amending Act, 1919 (18 of 1919), s. 2 and First Sch. 3 Subs. by the Amending Act, 1916 (13 of 1916), s. 2 ans Sch., for ‘‘ each of the towns of Calcutta, Madras, Bombay, Allahbad, Lahore and

Rangoon’’. 4 The words ‘‘and the chief court’’ which had been ins. by Act 32 of 1925, s. 2 and Sch., were omitted by A.O., 1949. 5 The words ‘‘and of the Chief Court’’ omitted by Act 11 of 1923, s. 2 and First Sch. The words ‘‘of the chief court’’ had been previously subs.,

for ‘‘ Chief Courts’’ by Act 18 of 1919, s. 2 and First Sch. 6 The words and parentheses “(in Burma)” were subs. for “(in the Punjab or burma)” by s.2 and First Sch. of Act 18 of 1919, and were

subsequently omitted by s.3 and Second Sch. of Act 11 of 1923. 7 Clause (b) omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981),s.3 and Second Sch. 8 Subs., ibid, for clause (c). 9 The word “and” and cl, (e) omitted ibid.

341

(3) The members of each such Committee shall be appointed by the Chief Justice who shall

also nominate one of their member to be president:

Provided that, if the Chief Justice elects to be himself a member of a Committee, the

number of other Judges appointed to be members shall be two and the Chief Justice 1***shall be

the President of the Committee.

(4) Each member'of any such Committee shall bold office f or such period as may be

prescribed by the Chief Justice in this behalf; and whenever any member retires. resigns, dies or

ceases to reside in the Province in which the Committee was constituted, or becomes incapable of

acting as a member of the Committee, the said Chief Justice may appoint another person to' be a

member in his stead.

(5) There shall be a Secretary to each such Committee who shall be appointed by the Chief

Justice and shall receive such remuneration as may be provided in this behalf 2[by the Provincial

Government].

124. Committee to report High Court: Every Rule Committee shall make a report to the

High Court established at the town at which it is constituted on any proposal to annul alter or add

to the rules in the First Schedule or to make new rules, and before making any rules under section

122 the High Court shall take such report into consideration.

3[125. Power of other High Court to make rules. Omitted by the Central Laws (Statute

Reform ) Ordinance, 1960 (XXI of 1960). S.3 and 2nd Sch. (with effect from the 14th October, 1955)

4[126. Rules to be subject to approval: Rules made under the foregoing provisions shall

be subject to the previous approval of the Government of the Province in which the Court whose

procedure the rules regulate is situate or, if that Court is not situate in any Province, to the previous

approval of the 5[Federal Government].

127. publication of Rules: Rules so made and 6[approved] shall be published in the 7[official Gazette***] and shall from the date of publication or from such other date as may be

specified have the same force and effect within the local limits of the jurisdiction of the High Court

which made them, as if they had been contained in the First Schedule.

1 The words “ or Chief Judge” have been omitted by the Central laws (Statute Reforms) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with

effect from the 14th October, 1955). 2 Subs. by A.O., 1937., for “by the G.G. in C. or by the L.G., as the case may be” 3 S. 125 was amended by A.O. 1937 and the Devolution Act, 1920 (38 of 1920), s.2 and First Sch. 4 Subs. by A.O., 1937, for s. 126 as amended by the Amending Act, 1916 (13 of 1916), Sch. 5 Subs. by F.A.O., 1975, Art.2 and Sch. For “President” which had been subs. by A.O., 1961, Art. 2 (with effect from the 23rd March, 1956), for

“Governor-General” 6 Subs. by the repealing and Amending Act, 1917 (27 of 1917), s.2 and First Sch., for “sanctioned”. 7 Subs. by A.O. 1937, para 4(1), for “Gazette of India or in the local official Gazette, as the case may be”. Strictly the substitution would read

“official Gazette or in the official Gazette, as the case may be”, but the latter words have been omitted as being redundant.

342

128. Matters for which rules may provide:-(1) Such rules shall not be inconsistent with

the provisions in the body of this Code, but, subject thereto, may provide for any maters relating

to the procedure of civil Courts.

(2) In particular and without prejudice to the generality or the powers conferred by

subsection

(1), such rules may provide for all or any of the following matters, namely:

(a) the service of summonses, notices and other processes by post or in any other

manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under attachment or livestock and other

movable property the fees pay able for such maintenance and custody, the sale of

such

livestock and property and the proceeds of such sale.

(c) procedure in suits by way of counter claim, and the valuation of such suits for the

purposes of jurisdiction;

(d) procedure in garnishee and charging orders either fu addition to, or in substitution

for, the attachment and sale of debts ;

(e) procedure where the defendant claims to be entitled to contribution or indemnity

over against any person whether a party to the suit or not;

(f) summary procedure-

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated

demand in money payable by the defendant, with or without interest,

arising on a contract express or implied; or

on an enactment where the sum sought to be recovered is a fixed sum of money or

in the nature of debt other than a penalty; or

on a guarantee, where the claim against the principle is in respect of a debt or a

liquidated demand only; or on a trust; or

(ii) in suits for the recovery of immovable property, with or without a claim

for rent or mesne profits, by a landlord against a tenant whose term has

expired or bas been only determined by notice to quit, or has become

liable to forfeiture for non-payment of rent, or against persons claiming

under such tenant;

(g) procedure by way of originating summons;

(h) conso1idation of suits, appeals and other proceedings;

343

(i) delegation to any Registrar, Prothonarary or master or other official of the Court

of any judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or

desirable for the transaction of the business of civil Courts.

1[129. Power of the High Courts to make rules as to their original civil procedure: Notwithstanding anything in this Code, any High Court 2***may make such rules not inconsistent

with 3[its Letters Patent] to regulate its own procedure in the exercise of its original civil

jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such

rules in force at the commencement of this Code.

4130. Power of other High Courts to make rules as to matters other than procedure:

Omitted by A.O,. 1961, Art . 2 and Sch (with effects from the 23rd March. 1956)

131.Publication of rules: Rule made in accordance with section 129 5***shall be

published in the official Gazette and shall from the date of publication or from such other date as

may be specified have the force of law.

_____________

PART XI

MISCELLANEOUS

132. Exemption of certain women from personal appearances:- (1) Women who

according to the customs and manners of the country6 ought not to be compelled to appear in public

shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in

execution of civil process in any case in which the arrest of women is not prohibited by this Code.

133.Exemption of other persons:- (1) The 7[Provincial Government] may, by

notification8 in the 9[official Gazette], exempt from personal appearance in Court any person whole

rank, in the opinion of such Government, entitles him to the privilege of exemption.

(2) The names and residences of the persons so exempted shall, from time to time, be

forwarded to the High Court by the Provincial Government and a list of such persons shall be kept

1 The word “Chartered” omitted by the Federal laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch. 2 The words “Constituted by His Majesty by Letters Patent” as amended by A.O., 1937 and the Amending Act, 1916 (13 of 1916), Sch., have

been omitted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955) 3 Subs. by Ord. 21 of 1960, s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the Letters Patent establishing it”. 4 S. 130 was amended by A.O., 1937, A.O., 1949 and the amending Act, 1916 (13 of 1916), Sch. 5 The words and figure “or section 130” have been omitted by A.O, 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956). 6 Subs. by A.O, 1937, para 4(1), for “Gazette of India or in the local official Gazette, as the case may be,”. Strictly the substitution would read

“official Gazette or in the official Gazette, as the case may be”, but the latter words have been omitted as being redundant. 7 Subs. by A.O., 1937, for “L.G.”. 8 For such notifications, see the different local Rules and Orders. 9 Subs. by A.O., 1937, for “local official Gazette.”.

344

in such Court, and a list of such persons as reside within the local limits of the jurisdiction of each

Court subordinate to the High Court shall be kept in such subordinate Court.

(3) Where any person so exempted claims the privilege of such exemption and it is

consequently necessary to examine him by party requiring his evidence pays the costs of that

commission, unless the party requiring his evidence pays such costs.

134. Arrest other than in execution of decree: The provisions of sections 55, 57 and 59

shall apply, so far as may be, to all persons arrest under this Code.

135. Exemption from arrest under civil process: (1) No Judge, Magistrate or other

judicial office shall be liable to arrest under civil process while going to, presiding in, or returning

from, his Court.

(2) Where any matter pending before a tribunal jurisdiction having jurisdiction therein, or

believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars,

revenne-agents and recognized agents, and their witnesses acting in obedience to a summons, shall

be exempt from arrest under civil process other than process issued by such tribunal for contempt

of Court while going to or attending such tribunal for the purpose of such matter, and while

returning from such tribunal.

(3) Nothing in subsection (2) shall enable a judgment-debtor to claim exemption from

arrest under an order for immediate execution or where such judgment-debtor attends to show

cause why he should not be committed to prison in execution of a decree.

1[l35-A. Exemption of members of Legistalative bodies from arrest and detention

under civil process: -(I) No person sha1l be liable to arrest or detention in prison under civil

process: -

2[(a) If he is member of 3*Legislature 4***5***during the continuance of any meeting

of such Legislature 6**;

(b) If he is member of any committee of such 7[Legislature during the continuance

of any meeting of such committee;

8* * * * * * * * * * * * *

and during the fourteen days before and after such meeting of sitting.

1 S. 135A ins. by the Legislative members Exemption Act, 1925 (23 of 1925), s.3. 2 Subs. by A.O., 1937, for the original cl. (a). 3 The word “unicameral” omitted by A.O., 1949. 4 The words “or of either Chamber of a bicameral Legislature” omitted, ibid. 5 The words and figures “constituted under the Government of India Act, 1935” omitted by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd

March, 1956). 6 The words “or chamber” omitted by A.O., 1949. 7 Subs. by A.O., 1937, for “Chamber or Council”. 8 The original cl. © was first subs. by A.O., 1937 and then omitted by A.O. 1949.

345

(2) A person released from detention under subsection (1) shall, subject to the provisions

of the said subsection, be liable to re-arrest and to the further detention to which he would have

been liable if he had not been released under the provisions of sub-section (1).

136. Procedure where person to be arrested or property to be attached is outside

district:-

(1) Where an ap1ilication is made that and person shall be arrested or that property shall

be attached under any provision of this Code not relating to the execution or decree, and such

person resides or such property is situate outside the local limits of the jurisdiction of the Court to

which the application is made the Court may in its direction, issue a warrant or arrest or make an

order of attachment and send to the District Court within the local limits of whose jurisdiction such

person or property resides or is situated a copy of the warrant of orders, together with the probable

amount of the costs of the arrest or attachment.

(2) The District Court shall on receipt of such copy and amount, cause the arrest or

attachment to be made by its own officers, or by Court subordinate to itse1f, and shall inform the

Court which issued or made such warrant or order of the arrest or attachment

(3) The Court making an arrest under this location shall send the person arrested to the

Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the

former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security

for his appearance before the latter Court or for satisfying any decree that may be passed against

him by that Court, in either of which cases the Court making the arrest shall release him.

1* * * * * * * * * * * * *

137. Language of sub-ordinate Courts: (1) The language which, on the commencement

of this Code, is the language of any Court subordinate to a High Court shall continue to be the

language of such subordinate Court until the Provincial Government otherwise directs.

(2) The 2[Provincial Government] may declare what shall be the language of any such

Court and in what character applications to and proceedings in such Courts shall be written.

(3) Where this Code requires or allows anything other than the recording or evidence to be

done in writing in any such Court, such writing may be in English; but if any party or his pleader

is unacquainted with English a translation into the language of the Court shall, at his request, be

supplied to him; and the Court shall make such order as it thinks fit in respect of the payment or

the costs of such translation.

1 The original sub-section (4) as amended by A.O., 1937, has been omitted by A.O., 1949. 2 Subs. by A.O., 1937, for “L.G”.

346

138. Power of High Court to require evidence to be recorded in English: The 1[High

Court] may, by notification in the 2[official Gazette] direct with respect to any judge specified in

the notification or failing under a description act forth therein, that evidence in cases in which an

appeal is allowed shall be taken down by him in the English language and in manner prescribed.

1 Subs. by the Decentralization Act, 1914 (4 of 1914), s.2 and Sch., Pt. I, for “L.G”. 2 Subs. by A.O., 1937, for “local official Gazette”.

347

(2) Where a Judge is prevented by any sufficient reason from complying with a direction

under subsection (1), he shall record the reason and cause the evidence to be taken down in writing

from his dictation in open Court.

139. Oath on affidavit by whom to be administered: In the case of any affidavit under

this Code-

(a) any Court or Magistrate, or

(b) any officer or other person whom a High Court may appoint in this

behalf, or ; 1(c) any officer appointed by any other Court which the 2[Provincial

Government] has generally or specially empowered in this behalf, may

administer the oath to the deponent:

140. Assessors in causes of savages:--(1) In any Admiralty or Vice-Admiralty cause of

salvage, towage or collision, the Court, whether it be exercising its original or its appellate

jurisdiction, may if it thinks fit and shall upon request of either party to such cause, summon to its

assistance, in such manner as it may direct or as may be prescribed two competent assessors; and

such assessor shall attend and assist accordingly:

(2) Every such assessor shall receive such fees to for his attendance, to be paid by such of

the parties as the Court may direct or as may be prescribed.

141. Miscellaneous proceedings: The procedure provided in this Code in regard to suits

shall be followed as far as it can be made applicable, in all proceedings in any Court of civil

jurisdiction.

142. Orders and notices to be in writing: All orders and notices served on or given to

any person under the provision or this Code shall be in writing.

143. Postage: Postage, where chargeable on a notice, summons or letter issued under this

Code and forwarded by post and the fee for registering the same, shall be paid within a time to be

fixed before the communication is made:

Provided that the 3[Provincial Government] 4***may remit such postage or fee or both or

may prescribe a scale of court-fees to be levied in lieu thereof.

144. Application for the restitution:-(1) Where and in so far as a decree is varied or

reversed the Court of first instance shall on the application of any party entitled to any benefit by

way of restitution or otherwise cause such restitution to be made as will, so far as may be, place

the parties in the position which they would have occupied but for such decree of such part thereof

as has been varied or reversed; and, for this purpose, the Court may make any orders, including

1 For notification empowering the District Judge, Karachi, to appoint the officers of District Courts for the purpose of this clause, see Gaz. Of P.

1956, Pt. 1. p. 294. 2 Subs. by A.O., 1937, for “L.G.”. 3 Subs. by A.O., 1937, for “L.G.”. 4 The words “with the previous sanction of the G.G. in C.” omitted by the Devolution Act, 1920 (38 of 1920), s.2 and first Sch., Pt.I.

348

orders for the refund of cost and for the payment of interested damages, compensation and mesne

profits, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief

which could be obtained by application under subsection(1)

145. Enforcement of laiblity of surety: Where any person has become liable as surety:

(a) For the performance of any decree or any part thereof; or

(b) For the restitution of any property taken in execution of a decree, or

(c) For the payment of any money, or for the fulfillment of any condition imposed on

any person, under an order of the Court in any suit or in any proceedings consequent

thereon, the decree or order may be executed against him to the extent to which he

has rendered himself personally liable, in the manner herein provided for the

execution of decrees, and such person shall for the purposes of appeal be deemed a

party within the meaning of section 47;

Provided that such notice: as the Court in each case thinks sufficient has been given to the

surety.

146. Proceedings by or against representatives: Save as otherwise provided by the Code

or by any law for the time being in force where any proceeding may be taken or application made

by or against any person, then the proceedings may be taken or the application may be made by or

against any person claiming under him.

147. Consent or ageement by person under disability: In all suits to which any person

under disability is a party, any consent or agreement as to any proceeding shall, if liven or made

with the express leave of the Court by the next friend or guardian for the suit, have the same force

and effect as if such period, were under no disability and had given such consent or made such

agreement.

148. Enlargement of time: Where any period is fixed or granted by the Court for the doing

of any act prescribed or allowed by this Code the Court may, in its discretion, from time to, time,

enlarge such period, even though the period originally fixed or granted may have expired.

149. Power to make up deficiency of court-fees: Where the whole or any part of any fee

prescribed for any document by the law for the time being in force relating to court fees has not

been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is

payable, to pay the whole or part, as the case may be, of such court-fee is payable, to pay the whole

or part, as the case may be, of such court-fee; and upon such payment the document, in respect of

which such fee is payable, shall have the same force and effect as if such fee is payable, shall have

the same force and effect as if such fee had bee paid in the first instance.

349

150. Transfer of buisness: Save as otherwise provided, where the business of any Court

is transferred to any other Court, the Court to which the business is so transferred shall have the

same powers and shall perform the same duties as those respectively conferred and imposed by or

under this Code upon the Court from which the business was so transferred.

151. Saving of inherent powers of Court: Nothing in this Code shall be deemed to limit

or otherwise affect the inherent power of the Court to make such orders as may be necessary for

the ends of justice or to prevent abuse of the process of the Court.

152. Amendement of judgments, decrees or orders: Clerical or arithmetical mistakes in

judgments, decrees or orders or errors arising therein from any accidental slip or omission may at

any time be corrected by the Court either of its own motion or on the application of any of the

parties.

153. General power to amend: The Court may at any time, and on such terms as to costs

or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all

necessary amendments shal1 be made for the purpose of determining the real question or issue

raised by or depending on such proceeding.

154.Saving of present right of appeal.[Omitted by the Federal Laws (Revision and

Declaration) Ordinance (27 of 1981), s.3and Second Sched.

155. Amendement of certain Acts. [Omitted by the Federal Laws (Revision and

Declaration) Ordinance (27 of 1981), s.3and Second Sched.

156. [Repeals] Rep. by the Second Repealing and Amending Act 1914 (XVII of 1914), s.3

and Second Schedule.

157. Continuance of orders under repealed enactments: Notifications published,

declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed,

appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil

Procedure or any Act amending the same or under any other enactment hereby repealed shall, so

far as they are consistent with this Code, have the same force and effect as if they had been

respectively published, made, appointed, filed, prescribed, framed and conferred under this Code

and by the authority empowered thereby in such behalf.

158. Reference to Code of Civil Procedure and other repealed enactments: In every

enactment or notification passed or issued before the commencement of this Code in which

reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil

Procedure or any Act amending the same or any other enactment hereby repealed, such reference

shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part,

Order, section or rule.

_______________

350

THE FIRST SCHEDULE

(See section 121)

________________

ORDER I

PARTIES TO SUITS

1. Who may be joined as pliantiffs: All persons may be joined in one suit as Plaintiffs in

whom any right to [relief in respect of or transaction or series of acts or transactions is alleged to

exit, whether jointly, severally or in the alternative, where, if such persons brought separate suits,

any common question of law or fact would arise.

2. Power of Court to order separate trials: Where it appears to the Court that any joinder

of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their

election or order separate trials or make such other order as may be expedient.

3. Who may be joined as defeandants: All persons may be joined as defendants against

whom any right to relief in respect of or arising out of the same act or transaction or series of acts

or transactions is alleged to exist, Whether jointly, severally or in the alternatively, where, if

separate suits were brought against such persons, any common quest on of law or fact would arise.

4. Court may give judgement for or against one or more of joint parties: Judgment

may be given without any amendment-

(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for

such relief as he or they may be entitled;

(b) against such one or more of the defendants as may be found to be liable according

to their respective liabiliteis

5.Defendant need bot be interested in all the relief claimed: It shall not be necessary

that every defendant shall be interested as to all the relief claimed in any suit against him.

6. Joinder of parties liable on same ontract:The plaintiff may, at his option, join as same

suit nil or any of the persons severally, severally, liable on any one contract, including exchange,

hundis and promissory notes.

7. Where the plaintiff in doubt from whom redress is to be sought: Where the plaintiff

is in doubt as to the person from whom be is entitled to obtain redress, he may join two or more

defendants in order that the question as to winch of the defendants is liable, and to what extent,

may be determined as between all parties.

351

8. One person may sue or defend on behalf of all in same interest: (l) Where there are

numerous persons having the same interest in one suit, one or more of such persons may, with the

permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit

of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice

of the institution of the suit to all such persons either by personal service or, where from the number

of persons or any other cause such service is not reasonably practicable, by public advertisement,

as the Court in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under

sub-rule(1) may apply to the Court to be made a party to such suit.

9. Misjoinder and nonjoinder: No suit shall be defeated by reason of the misjoinder or

non-joinder of parties, and the Court may in the matter in controversy so far as regards the rights

and interests of the parties actually before it.

10. Suit in name of wrong plaintiff: (1) Where a suit has been instituted in the name of

the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of

the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted

through a bona fide mistake, and that it is necessary for the determination of the teal matter in

dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as

the Court thinks just.

(2) Court may strike out or add parties: The Court may at any stage of the proceedings,

either upon or without the application of either party, and on such terms as may appear to the Court

to be just, order that the name of any party improperly joined, whether as plaintiff or defendant,

struck out, and that the name of any person who ought to have been joined, whether as plaintiff or

defendant, or whose presence before the Court may be necessary in order to enable the Court

unless the as may be the plaint thinks fit, effectually and completely to adjudicate upon and settle

all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend

of a plaintiff under any disability without his consent.

(4) Where a defendant added, plaint to be ammended: Where a defendant is added,

the plaint shall, Court otherwise directs, be amended. in such manner necessary, and amended

copies of the summons and of shall be served on the new defendant and, if the Court on the

original defendant.

(5) Subject to the provisions of the 1[Limitation Act, 1908], section 22, the proceedings

added as defendant shall be deemed to service of the summons.

11. Conduct of suit: The Court may give the conduct of the suit to such person as it

deems.

1 Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch., for “Indian Limitation Act, 1877 (15

of 1877)”.

352

12. Apperance of one of several plaintiffs of defendants for others: (l) where there are

more plaintiffs than one, any one or more of them may be authorized by any other of them to

appear, plead or act for such other, in any proceedings; and in like manner, where there are more

defendants than one, any one or more of them may be authorized by any other of them to appear,

plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court

13. Objections as to non-joinder or misjoinder: Alt objections on the ground of non-

joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases

where issues are settled, at or before such settlement, unless the ground of objection has

subsequently, arisen, and any such objection not so taken shall be deemed to have been waived.

_____________________

ORDER II

FRAME OF SUIT

1. Freame of suit: Every suit shall as far as practicable be framed so as to afford ground

for final decision upon the subjects in dispute and to prevent further litigation concerning them.

2. Suit to include the whole claim: (1) Every suit shall include the whole of the claim

which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish

any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment or part of claim: Where a plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the

portion so omitted or relinquished claim.

(3) Omission to sue for one of several reliefs: A person entitled to more than one relief

in respect of the same cause of action may sue for all or any of such relief; but if no omits, except

with the leave of the Court, to sue for all such relief, he shall not afterwards sue for any relief so

omitted.

Explanation: For the purposes of this rule an obligation and a collateral security for its

performance and successive claims arising under the same obligation shall be deemed

respectively to constitute but one cause of action.

Illustration:

A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905,

1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not

afterwards sue B for the rent due for 1905 or 1907.

353

3. Joinder of causes of action:- (1) Save as otherwise provided, a plaintiff may unite in

the same suit several causes of action against the same defendant, or the same defendants jointly;

and any plaintiffs having causes of action in which they are jointly interested against the same

defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit

shall depend on the amount or value of the aggregate subject matters at the date of instituting the

suit.

4.Only certain claims to be joined for recovery of immovable property:- No cause of

action shall, unless with the leave of the Court, be joined with a suit for the recovery of

immovable property, except-

(a) Claims for mesne profits or arrears of rent in respect of ~he property claimed or

any part thereof;

(b) Claims for damages for breach of any contract under which the property or any

part thereof is held; and

(c) Claims in which the relief sought is based on the same cause of action;

Provided that nothing in this rule shall be deemed to prevent any party in a suit for

foreclosure or redemption from asking to be put into possession of the mortgaged

property.

5. Claims by or against executor, adminstrator or heir: No claim by or against an

executor, administrator or heir, as such, shall be joined with claims by or against him personally,

unless the last mentioned claims are alleged to arise with reference to the estate in respect of which

the Plaintiff or defendant sues or is sued as executor, administrator or heir, or are such a~ he was

entitled to, or liable for, jointly with the deceased person whom he represent.

6. Order of Court to order separate trials: Where it appears to the Court that any causes

of action joined in one suit cannot be conveniently tried or disposed of together, the Court may

order separate trials or make such other order as may be expedient.

7. Objections as to misjoinder: All objections on the ground of misjoinder of causes of

action shall be taken at the earliest possible opportunity and, in all cases where issues arc settled,

at or before such settlement, unless the ground of objection has subsequently arisen, and any such

objection not so taken shall be deemed to have waived.

________________

354

ORDER III

RECOGNIZED AGENTS AND PLEADERS

1. Apperance .etc, may be in person by recognized agent or by pleader: Any

appearance, application or act in or to any Court, required or authorized by law to be made or done

by a party in such Court, may, except where otherwise expressly provided by any law for the time

being in force, be made or done by the party in person, or by his recognized agent, or by a pleader 1[appearing, applying or acting, as the case may be,] on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in

person.

2. Recognized agents: The recognized agent of parties by whom such appearances,

applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing them to make and do such

appearances, applications and acts on behalf of such parties ;

(b) persons carrying on trade or business for and in the names of parties not resident

within the local limits of the jurisdiction of the Court within which limits the

appearance, application or act is made or done, in matters connected with such trade

or business only where no other agent is expressly authorized to make and do such

appearances, applications and acts.

3. Service of process on recognized agent:-(l) Processes served on the -recognized agent

of a party shall be as effectual as if the same had been served on the in person, unless the Court

otherwise directs.

(2) The provisions for the service of process on a party to a suit shall apply to the service

of process on his recognized agent.

24. Appointment of pleader:-(l) No pleader shall act for any person in unless he has been

appointed for the purpose by such a document in writing signed by such person or by his agent or

by some other person duly authorized by power of attorney to make such appointment.

(2) Every such appointment shall be filed in Court arid shall be deemed to be in force until

determined with the leave of the Court by a writing signed by the client or the pleader, as the case

may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit

are ended so far as regards the client.

1 Subs. by the Code of civil Procedure (Second Amdt.) Act, 1926 (22 of 1926) s.2, for “duly appointed to act”. 2 Subs. by theCode of civil Procedure (Second Amdt.) Act, 1926 (22 of 1926), s.2, for the original rule-4.

355

(3) For the purposes of sub-rule (2) an application for review of judgment, an application,

tinder section 144 or section 152 of this Code, any appeal from any decree or order in the suit end

any application or act for the purpose of obtaining copies of documents or return of documents

produced or filed in the suit or of obtaining refund of monies paid into the Court in connection

with the suit shall be deemed to be proceedings in the suit.

(4) The High Court may, by general order, direct that, where the person by whom a pleader

is appointed is unable to write his name, his mark upon the document appointing the pleader shall

be attested by such person and in such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf

of any party, unless he has filed in Court a memorandum of appearance signed by himself and

stating-

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorized to appear.

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf

of any party by any other pleader who has been duly appointed to act in Court on behalf of such

party.]

5. Service of process on pleader: Any process served on the pleader of any party or left

at the office or ordinary residence of such pleader, and whether the same is for the personal

appearance of the party or not, shall be presumed to be duly communicated and made known to

the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual

for all purposes as if the same had been given to or served on the party in person.

6.Agent to accept service:- (1) Besides the recognized agents described in rule 2 any

person residing within the jurisdiction of the Court may be appointed an agent to accept service of

process.

(2). Appointment to be in writings and to be filled in Court: Such appointment maybe

special or general and shall be made by an instrument in writing signed by the principal, and such

instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

_______________

356

ORDER IV

INSTITUTION OP SUITS

1. Suit to be commenced by plaint:- (l) Every suit shall be instituted by presenting a plaint to

the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained Orders VI and VII, so far as they are

applicable.

2. Register of suits:- The Court shall cause the particulars of every suit to be entered in a book to

be kept for the purpose and called the register of civil suits. Such entries shall be numbered in

every year according to the order in which the plaints are admitted.

____________

ORDER V

ISSUE AND SERVICE OF SUMMONS

1. Summons:- (l) When a suit has been duly instituted a summons may Summons be issued

to the defendant to appear and answer the claim on a day to tie therein specified:

Provided that no such sommons shall be issued when the defendant has appeared at the

presentation of the plaint and admitted the plaintiff’s claim.

(2) A defendant to whom a summons has been issued under sub-rule (I) may appear-

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the

suit, or

(c) by a pleader accompanied by some person able to answer all such questions.

(3) Every such summons shall be signed by the Judge or such officer as he appoints, and

shall be sealed with the seal of the Court.

2. Copy or statement annexed to Summons: Every summons shall be accompanied by a

copy of the plaint or, if so permitted, by a concise statement.

3. Court may order defendant or plaintiff to appear in person:- 1 Where the Court sees

reason to require the appearance of the defendant, the summons shall order him to appear in person

in Court on the day therein specified.

(2) Where the Court sees reason to require the personal appearance of the Plaintiff on the

same day, it shall make an order for such appearance.

357

4. No party be ordered to appear in person unless resident within certain limits: No

party shall be ordered to appear in person unless he resides-

(a) within the local limits of the Court's ordinary original jurisdiction, or

(b) without such limits but at a place less than fifty or (where there is railway or steamer

communication or other established public conveyance for five-sixth of the distance

between the place where he resides and the place where the Court is situate) less

than two hundred miles distance from the Court-house.

5. Summons to be either to settle issues or for final disposal: The Court shall determine,

at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the

final disposal of the suit ; and the summons shall contain a direction accordingly

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for

the final disposal of the suit.

6. Fixing day for appearance of defendant: The day for the appearance of the defendant

shall be fixed with reference to the current business of the Court, the place of residence of the

defendant and the time necessary for the service of the summons; and the day shall be so fixed as

to allow the defendant sufficient time to enable him to appear and answer on such day.

7. Summons to order defendant to produce documents relied on by him: The summons

to appear and answer shall order the defendant to produce all documents in his possession or power

upon which he intends to rely in support of his case.

8. On issue of summons for final disposal defendant to be directed to produce his

witnesses: Where the summons is for the final disposal of t shall also direct the defendant to

produce, on the day his appearance, all witnesses upon whose evidence he I rely in support of his

case.

Service of Summons

9. Delivery or transmission of summons for service:- (1) Where the defendant resides

within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within

that jurisdiction who is empowered to accept the service of the summons, the summons shall,

unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him

or one of his subordinates.

(2) The proper officer may be an officer of a Court other than that in which the suit is

instituted, and, where he is such an officer, the summons may be sent to him by post or in such

other manner as the Court may direct.

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(3) Unless the Court otherwise directs, the proper officer or an officer authorized by him

in this behalf shall cause the service of summons and return it to the Court within fifteen days of

issue of summons.

10. Mode of service: Service of the summons shall be made by delivering or tendering a

copy thereof signed by the Judge or such officer, as he appoints in this behalf, and sealed with the

seal of the Court.

1[10-A. Service by post:- (1) simultaneously, with the issue of summons under rule 9, there

shall be sent, unless to the defendant, by registered other copy of the summons provided in rule

10.

(2) An acknowledgement purporting to be signed by the defendant of the receipt of the

registered communication or an endorsement by a postal employee that the defendant refused to

take delivery of the same shall be deemed by the Court issuing the summons to be prima facie

proof of service of summons.]

11. Service on sue of defendants: Save as otherwise prescribed, defendants than one,

service of the summons each defendant.

12. Service to be defendant in person when practicable or on his agent: Wherever it

is practicable, service shall be made on the defendant in person, unless he has an agent

empowered to accept service, in which case service on such agent shall be sufficient.

13. Service on agent by whom defendant carries on buisness: -(l) In a suit relating to

any business or work against a person who does not reside within; the local limits of the

jurisdiction of the Court from which the summons is issued, service on any manager or agent,

who, at the time of service, personally carries on such business or works for such person within

such limits, shall be deemed good service.

(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the

owner or character.

14. Service on agent in charge in suits for immovable property: Where in a suit to

obtain relief respecting, or compensation for wrong to, immovable property, service cannot be

made on the defendant in person, and the defendant has no agent empowered to accept the service,

it may be made on any agent of the defendant in charge of the property.

15. Where service may be on male member of defendant`s family:- Where in any suit

the defendant cannot be found and has no agent empowered to accept service of the summons on

his behalf, service may be made on any adult male member of the family of the defendant who is

residing with him.

1 Rule 10-A ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

359

Explanation: A servant is not a member of the family within the meaning of this rule.

16. Person served to sign acknowledgement: Where the serving officer delivers or

tenders a copy of the summons to the defendant personally, or to an agent or other person on his

behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to

an acknowledgment of service endorsed on the original summons.

17. Procedure when defendant refuses to accept service or cannot be found: Where

the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment,

or where the serving officer, after using all due and reasonable diligence, cannot find the defendant,

and there is no agent empowered to accept service of the summons on his behalf, nor any other

person on whom service can be made, the serving officer shall affix a copy of the summons on the

outer door or some other conspicuous part of the house in which the defendant ordinarily resides

or carries on business or personally works for gain, and shall then return the original to the Court

from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so

affixed the copy, the circumstances under which he did so, and the name and address of the person

(if any), by whom the house was identified and in whose presence the copy was affixed.

18. Endorsement of time and manner of service: The serving officer shall, in all cases

in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed

or annexed, on or to the original summons, a return stating the time when and the manner in which

the summons was served, and the name and address of the person (if any) identifying the person

served and witnessing the delivery or tender of the summons.

19.Examination of serving officer: Where a summons is returned under rule 17, the Court

shall, if the return under that rule has not been verified by the affidavit of the serving officer, and

may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined

by another Court, touching his proceedings, and may make such further inquiry in the matter as it

thinks fit; and shall either declare that the summons has been duly served or order such service as

it thinks fit.

20.Substituted service:-(l) Where the Court is satisfied that there is reason to believe that

the defendant is keeping out of the way for the purpose of avoiding service, or that for nay other

reason the summons cannot be served in the ordinary way, the Court shall order for service of the

summons by-

(a) affixing a copy of the summons at some conspicuous part of the house, if any, in

which the defendant is known to have last resided or carried on business or

personally worked for gain; or

(b) any electronic device of communication which may include telegram, phonogram,

telex, fax, radio and television; or

(c) urgent mail service or public courier services; or

(d) beat of drum in the locality where the defendant resides; or

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(e) publication in press; or

(f) any other manner or mode as it may think fit:

Provided that the Court may order the use of all or any of the aforesaid manners and modes

of service simultaneously.

(2) Effects of substituted service: Service substituted by order of the Court shall be as

effectual as if it had been made on the defendant personally.

(3) Where service substitued, time for appearance to be fixed: Where service is

substituted by order of the Court, the Court shall fix such time for the appearance of the defendant

as the case may require which shall not ordinarily exceed fifteen days.

21. Service of summons where defendant resides within jurisdiction of an other

Court: A summons may be sent by the Court by which it is issued, whether within or without the

Province, either by one of its officers or by post to any Court (not being the High Court) having

jurisdiction in the place where the defendant resides.

22. Service within Presidnecy towns of summons issued by Courts outside. Omitted by

the A. 0., 1949.

23. Duty of Court to which summons is sent: The Court to which a summons is sent

under rule 21 1* * *shall, upon receipt thereof, proceed as if it had been issued by such Court and

shall then return the summons to the Court of issue, together with the record (if any) of its

proceedings with regard thereto in a prison, the otherwise to the defendant.

25. Service where defendants resides out of Pakistan and has no agent: Where the

defendant resides out of 2[Pakistan] and has no agent in [Pakistan] empowered to accept service,

the summons shall 3[except in the cases mentioned in rule 26-A] be addressed to the defendant at

the place where he is residing and sent to him by post. If the is postal communication between

such place and the place where the Court is situate.

26. Service in Foreign territory through Political; Agent or Court: Where: -

(a) In the enteric of any foreign 4[or extra-provincial jurisdiction vested in the 5[Federal

Government], a Political Agent has been appointed, or a Court has been established or continued,

with power to serve a summons issued by a Court under this Code in any foreign territory in which

the defendant resides, or

1 The words and figures “or rule 22” omitted by A.O., 1949. 2 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October,

1955), for “the Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”. 3 Ins. by the Code of Civil Procedure (Amdt.) Act, 1950 (68 of 1950), s.2 (with effect from the 1st September, 1951). 4 Subs. by a.O., 1949, for “jurisdiction vested in His Majesty or in [the Central Govt. or the Crown Representative]”. The words

in crotchet had been subs., for “the G.G in C.” by A.O., 1937. 5 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”.

361

1[(b) 2[the Provincial Government ]has, by notification in the 3[officiaI Gazette], declared4,

in respect of any Court situate In any such territory and not established or con-wined in the exercise

of any such jurisdiction as aforesaid that service by such Court of any summons 5[issued under

this Code by a Court of the Province shall be deemed to be valid service,

the summons may be sent to such Political Agent or Court, by post or otherwise, for the purpose

of being served upon the defendant ; and, if the Political Agent or Court returns the summons with

an endorsement signed by such Political Agent or by the Judge or other officer of the Court that

the summons has been served on the defendant in manner hereinbefore directed, such endorsement

shall be deemed to be evidence of service.

6[26-A. Service on civil public officer or on servanty of railway company or local

authority in India: where the defendant is a servant (not belonging to the military, naval or air

forces) of any Government in India, or civil public a servant of a railway company or local

authority in India, the officer or on summons together with a copy of it to be retained by the

defendant shall be sent, with a request that it may be served on the defendant.

(a) In the case of a defendant serving in connection with the affairs of the Government of

India or a servant of a Railway in India, to the Secretary to the Government of India in the Ministry

of Home Affairs, and

(b) in the case of a defendant serving in connection with the affairs of any other

Government in India, or in the case of a servant of a local authority in India, to the Home Secretary

to that Government or, as the case may be to the Home Secretary to the Government in whose

territories the local authority has its jurisdiction.

27. Service on civil public officer or on servant of railway company or local authority:

Where the defendant is a public officer (not belonging to 7[the armed forces of Pakistan] 8* * *),

or is the servant of a railway company or local authority, the Court may, if it appears to it that the

summons may be most conveniently so served, send if for service on the defendant to the head of

the office in which he is employed, together with a copy to be retained by the defendant.

28. Service on soilders, sailors or airmen: Where the defendant is a soldier, 9[sailor] 10[or airman] the Court shall send the summons for service to his commanding officer together

with a copy to be retained by the defendant.

1 Subs. by the Second Repealing and Amending act, 1914 (17 of 1914), s.2 and First Sch., for the original cl. (b). 2 Subs. by A.O., 1937, for “the G.G. in C.”. 3 Subs. ibid., for “Gazette of Inda”. 4 Service by any Civil Court in the Federation of Malaya, of any summons issued under the Code of Civil Procedure by a Court of the Chief

Commissioners’ Provinces of Baluchistan and Karachi, shallb e deemed to be valid service, see Gaz. Of P., dated the 29 th February, 1952 Pt. I, p. 144, and ibid., dated the 14th March, 1952, Pt. IIA, p. 60, see also footnote to s. 29, supra. 5 Subs. by A.O., 1937, for “issued by a Court under this Code”. 6 26A ins. by the Code of Civil Procedure (Amdt.) Act, 1950 (68 of 1950), s.3 (with effect from the 1st September, 1951). 7 Subs. by A.O., 1961, Art 2 and Sch. (with effect from the 23rd March, 1956), for “His Majesty’s military, [naval or air] forces”. The words in

crotches had been subs. by the Repealing and Amending Act, 1927 (10 of 1927), s.2 and 1st Sch., “or naval”. 8 The words “or his Majesty’s Indian Marine Service” omitted by the Amending Act, 1934 (35 of 1934), s.2 and Sch. 9 Isn. Ibid. 10 Ins. by Act 10 of 1927, s.2 and 1s Sch.

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29.Duty of person to whom summons is delievered or sent for services: (1) Where a

summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such

person shall be bound to serve it, if possible, and to return it under his signature with the written

acknowledgement of the defendant, and such signature shall be deemed to be evidence of service.

(2) Were from any cause service is impossible, the summons shall be returned to the Court

with a full statement of such cause and of the steps taken to procure service, and such statement

shall be deemed to be evidence of non-service.

30. Substitution of letter for summons: (1) The Court may, notwithstanding anything

herein before contained, substitute for a summons a letter signed by the Judge or such officer as

he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling

him to such mark of consideration.

(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be

stated in summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as

a summons.

(3) A letter so substituted may be sent to the defendant by post or by a special messenger

selected by the Court, or in any other manner which the Court thinks fit; and where the defendant

has an agent empowered to accept service, the letter may be delivered or sent to such agent.

ORDER VI

PLEADINGS GENERALLY

1. Pleading: "Pleading" shall mean plaint or written statement.

2. Pleading to state material facts and not evidence: Every pleading shall contain, and

contain only, a statement in a concise form of the material facts on which the party pleading relies

for his claim or defence, as the case may be, but not the evidence by which they are to be proved,

and shall, when necessary, be divided into paragraphs, numbered consecutively-Dates, sums and

numbers shall be expressed in figures.

3. Forms of pleading: The forms in Appendix A when applicable, and where they are not

applicable forms of the like character, as nearly as may be, shall be used for all pleadings.

4. Particulars to be given where necessary: In all cases in which the party pleading relies

on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other

cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid,

particulars (with dates and items if necessary) shall be stated in the pleading.

5. Further and better statement or particulars: A further and better statement of nature

of the claim or defence, or further and better particulars of any matter stated in any pleading, may

in all cases be ordered, upon such terms as to costs and otherwise, as may be just.

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6. Condition precedent: Any condition precedent the performance or occurrence of which

is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant,

as the case may be; and, subject thereto, an averment of the performance or occurrence of all

conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his

pleading.

7. Departure: No pleading shall, except by way of amendment, raise any new ground of

claim or contain any allegation of fact inconsistent with the previous pleadings of the party

pleading the same.

8. Denial of contract: Where a contract is alleged in any pleading, a bare denial of the

same by the opposite-party shall be construed only as a denial in fact of the express contract alleged

or of the matters of fact from which the same may be implied, and not as a denial of the legality

or sufficiency in law of such contract.

9. Effect of document to be stated: Wherever the contents of any document are material,

it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting

out the whole or any part thereof, unless the precise words of the document or any part thereof are

material.

10. Malice knowledge etc: Wherever it is material to allege, malice fraudulent intention,

knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as

a fact without setting out the circumstances from which the same is to be inferred.

11.Notice: Wherever it is material to allege notice to any person of any fact, matter or

thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of

such notice, or the circumstances from which such notice is to be inferred, are material.

12. Implied contract or relation: Whenever any contract or any relation between any

persons is to be implied from a series of letters or conversations or otherwise from a number of

circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer

generally to such letters, conversations or circumstances without setting them out in detail. And if

in such case the person so pleading desires to rely in the alternative upon more contracts or

relations than one as to be implied from such circumstances, he may state the same in the

alternative.

13. Presumption of law: Neither party need in any pleading allege any matter of fact which

the law presumes in his favour or as to which the burden of proof lies upon the other side unless

the same has first been specifically denied (e.g., consideration for a bill of exchange where the

plaintiff sues only on the bill and not for the consideration as a substantive ground of claim).

14. Pleading to be signed: Every pleading shall be signed by the party and his pleader (if

any): Provided that where a party pleading is, by reason of absence or for other good cause, unable

to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to

sue or defend on his behalf.

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15. Verification of pleadings: (1) Save as otherwise provided by any law for the time

being in force, every pleading shall be verified 1[on oath or solemn affirmation] at the foot by the

party or by one of the parties pleading or by some other person proved to the satisfaction of the

Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the

pleading, what he verifies of his own knowledge and what he verifies upon information

(3) The verification shall be signed by the person making it and shall state the date on

which and the place at which it was signed.

16. Striking out pleadings: The Court may at any stage of the proceedings order to be

struck out or amended any matter in any pleading which may be unnecessary or scandalous or

which may tend to prejudice, embarrass or delay the fair trial of the suit.

17. Amendement of pleadings: The Court may at any stage of the proceedings allow either

party to alter or amend his pleadings in such manner and on such terms as may be just, and all such

amendments shall be made as may be necessary for the purpose of determining the real questions

in controversy between the parties.

18. Failure to amend after order: If a party who has obtained an order for leave to amend

does not amend accordingly within the time limited for that purpose by the order, or if no time is

thereby limited then within fourteen days from the date of the order, he shall not be permitted to

amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case

may be, unless the time is extended by the Court.

____________________

1 Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

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ORDER VII

PLAINT

1.Particulars to be conatined in plaint: The plaint shall contain the following

particulars:-

a) the name of the Court in which the suit is brought;

b) the name, description and place of residence of the plaintiff;

c) the name, description and place of residence of the defendant, so far as they can be

ascertained;

d) where the plaintiff or the defendant is a minor or a person of unsound mind, a

statement to that effect;

e) the facts constituting the cause of action and when it arose;

f) the facts showing that the Court has jurisdiction;

g) the relief which the plaintiff claims;

h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the

amount so allowed or relinquished; and

i) a statement of the value of the subject-matter of the suit for the purposes of

jurisdiction and of court-fees so far as the case admits.

2. In money suits: Where the plaintiff seeks the recovery of money, the plaint shall state

the precise amount claimed;

But where the plaintiff sues for mesne profits, or for an amount which will be found due to

him on taking unsettled accounts between him and the defendant, the plaint shall state

approximately the amount sued for.

3. Where the subject-matter of the suit is immovable property:- Where the subject-

matter of the suit is immovable property, the plaint shall contain a description of the property

sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a

record of settlement of survey, the plaint shall specify such boundaries or numbers.

4. Where plaintiff sues as represntatives: Where the plaintiff sues in a representative

character the plaint shall show not only that he has an actual existing interest in the subject-matter,

but that he has taken the steps(if any) necessary to enable him to institute a suit concerning it.

5.Defandant`s interests and liability to be shown: The plaint shall show that the

defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon

to answer the plaintiff's demand.

6. Ground of exemption from limitation law: Where the suit is instituted after the

expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon

which exemption from such law is claimed.

7. Relief to be specifically stated: Every plaint shall state specifically the relief which the

plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general

366

or other relief which the plaintiff claims either simply or in the alternative, and it shall not be

necessary to ask for general or other relief which may always be given as the Court may think just

to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed

by the defendant in his written statement.

8. Relief founded on separate grounds: Where the plaintiff seeks relief in respect of

several distinct claims or causes of action founded upon separate and distinct grounds they shall

be stated as far as may be separately and distinctly.

9. Procedure of admiting plaint: 1[(1)The plaintiff shall endorse on the plaint, or annex

thereto, a list of the documents (if any) which he has produced along with it.

(1A) The plaintiff shall present with his plaint –

a) As many copies on plain paper of the plaint as there are defendants, plus two extra

copies, unless the Court, by reason of the length of the plaint or the number of the

defendants, or for any other sufficient reason, permits him to present a like number

of concise statements of the nature of the claim made, or of the relief claimed in the

suit, in which case he shall present such statements; and

b) Draft forms of summons and fees for service thereof

2. Concise statements: Where the plaintiff sues, or the defendant or any of the defendants

is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or

defendant sues or is sued.

3. The plaintiff may, by leave of the Court, amend such statements so as to make them

correspond with the plaint.

4. The chief ministerial officer of the Court shall sign such list and copies or statements if,

on examination, he finds them to be correct.

10. Return of plaints:- (1) The plaint shall at any stage of the suit be returned to be

presented to the Court in which the suit should have been instituted.

(2) Procedure of returning plaints: On returning a plaint the Judge shall endorse thereon

the date of its presentation and return, the name of the party presenting it, and a brief statement of

the reasons for returning it.

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the original sub-rule (1).

367

11. Rejection of plaints: The plaint shall be rejected in the following cases:-

a) where it does not disclose a cause of action:

b) where the relief claimed is under-valued, and the plaintiff, on being required by the

Court to correct the valuation within a time to be fixed by the Court, fails to do so:

c) where the relief claimed is properly valued, but the plaint is written upon paper

insufficiently stamped, and the plaintiff, on being required by the Court to supply

the requisite stamp-paper within a time to be fixed by the Court, fails to do so:

d) where the suit appears from the statement in the plaint to be barred by any law.

12. Procedure on rejecting pliant: Where a plaint is rejected the Judge shall record an

order to that effect with the reasons for such order.

13. Where rejection of plaint does not preclude presentation of fresh plaint: The

rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force

preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action

Documents relied on in Plaint

14.Production of document on which plaintiff sues:- (1) Where a plaintiff sues upon a

document in his possession or power, he shall produce it in Court when the plaint is presented, and

shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) List of other documents: Where he relies on any other documents (whether in his

possession or power or not) as evidence in support of his claim, he shall enter such documents in

a list to be added or annexed to the plaint.

15. Statement in case of documents not in plaintiff`s possession or power: Where any

such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose

possession or power it is.

16. Suits on last negotiable instruments: Where the suit is founded upon a negotiable

instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff,

to the satisfaction of the Court, against the claims of any other person upon such instrument, the

Court may pass such decree as it would have passed if the plaintiff had produced the instrument in

Court when the plaint was presented, and had at the same time delivered a copy of the instrument

to be filed with the plaint.

17.Production of shop book:- (1) Save in so far as is other wise provided by he Bankers'

Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in a shop-

book or other account in his possession or power, the plaintiff shall produce the book or account a

the time of filing the plaint, together with a copy of the entry on which he relies.

368

(2) Original entry to be marked and returned: The Court, or such officer as it appoints

in this behalf, shall forthwith mark the document for the purpose of identification; and after

examining and comparing the copy with the original, shall, if it is found correct, certify it to be so

and return the book to the plaintiff and cause the copy to be filed.

18 – Inadmissibility of document not produced when plaint filed: (1) A document

which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered

in the list to be added or annexed to the pliant, and which is not produced, or entered accordingly,

shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the

suit.

(2) Nothing in this rule applies to documents produced for cross-examination of the

defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness

merely to refresh his memory.

1[19. Address to be filed with plaint:- (1) Every plaint or original petition shall be

accompanied by a proceeding giving an address at which service of notice, summons or other

process may be made on the plaintiff or petitioner.

(2) Plaintiffs or petitioners subsequently added shall immediately on being so added file a

proceeding of this nature.

(3) The address filed under this rule shall be entered in the Register of suits maintained

under Order IV, rule 2.

20. Nature of address to be filed: An address for service filed under the preceding rule

shall be within the local limits of the District Court within which the suit or petition is filed, or of

the District Court within which the party ordinarily resides.

21. Consequences of failure to file address: Where a plaintiff or petitioner fails to file an

address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court

suo motto or any party may apply for an order to that effect and the Court may make such order

as it thinks just.

22. Procedure when party not found at the place of address: (1) Where a party is not

found at the address given by him for service and no agent or adult male member of his family on

whom a notice, summons or other process can be served is present, a copy of the notice, summons

or other process shall be fixed to the outer door of the house.

(2) If, on the date fixed, such party is not present, another date shall be fixed and a copy of

the notice, summons or other process shall be sent to the said address by registered post, and such

service shall be deemed to be as effectual as if the notice, summons or other process had been

personally served.

1 Rules 19 to 26 added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

369

23. Service on pleader: Where a party engages a pleader, notices summons or other

processes for service on him shall be served in the manner prescribed by Order III, rule 5, unless

the Court directs service at the address for service given by the party.

24. Change of address: A party who desires to change the address for service given by

him as aforesaid shall file a verified petition, and the Court may direct the amendment of the record

accordingly. Notice of such petition shall be given to such other parties to the suit as the Court

may deem it necessary to inform, and may be either served upon the pleaders for such parties or

be sent to them by registered post, as the Court thinks fit.

25. Service by other modes: Nothing in these rules shall prevent the Court from directing

the service of a notice, summons or other process in any other manner, if for any reasons, it thinks

fit to do so.

26. List of legal representatives of Plaintiff:- (1) In every suit of the nature referred to in

rule 3, Order XXII, the plaint shall be accompanied by a statement giving -

(a) the names and addresses of the persons who, in the event of the death of the plaintiff,

may be made a party as his legal representatives;

(b) the name and address of the person who, in the event of the death of the plaintiff, shall

intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the

legal representatives of the plaintiff and make an application for the legal representatives to be

made a party.

(2) A plaintiff may at any time -

(a) file in the Court an amended list, of his presumptive legal representatives;

(b) nominate another person, in the place of the person nominated under clause (b) of sub-

rule (1), for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause

(b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings a

rising therefrom, including appeal, revision and review.]

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ORDER VIII

WRITTEN STATEMENT AND SET-OFF

1. Written statement: The defendant shall at or before the first hearing or within such

time as the Court may permit, permit, present a written statement of his defence[:]1

2[Provided that the period allowed for filing the written statement shall not ordinarily

exceed 3[thirty] days.]

2. New facts must be specially pleaded: The defendant must raise by his pleading all

matters, which show the suit not to be maintainable, or that the transaction is either void or voidable

in point of law, and all such grounds of defence as, if not raised, would raise issues of fact not

arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts

showing illegality.

3. Denial to be specific: It shall not be sufficient for a defendant in his written statement

to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with

each allegation of fact of which he does not admit the truth, except damages.

4. Evasive denial: Where a defendant denies an allegation of fact in the plaint, he must not

do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain

sum of money, it shall not be sufficient to deny that he received that particular amount, but he must

deny that he received that sum or any pay thereof, or else set but how much he received. And if an

allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those

circumstances.

5. Specific denial: Every allegation of fact in the plaint, if not denied specifically or by

necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken

to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved

otherwise than by such admission.

6. Particular of set off to be given written statement:- (1) Where in suit for the recovery

of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of

money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the

jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit,

the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court,

present a written statement containing the particulars of the debt sought to be se-off.

(2)The written statement shall have the same effect as a plaint in a cross-suit so as to enable

the Court to pronounce a final judgement in respect both of the original claim and of the

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For full-stop. 2 Proviso added ibid. 3Subs. by Act, XIV of 1994. S.11.

371

set-off: but this shall not effect the lien, upon he amount decreed, of any pleader in respect

of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in answer

to a claim of set-off.

Illustrations

(a) A bequeaths Rs.2,000 to B and appoints C his executor and residuary legatee. B dies

and D takes out administrations to B's effects. C pays Rs.1,000 as surety for D; then D sues C for

the legacy. C cannot set-off the debt of Rs.1,000 against the legacy, for neither C nor D fills the

same character with respect to the legacy as they fill with respect to the payment of the Rs.1,000.

(b) A dies intestate and in debt to B, C takes out administration to A's effects and B buys

parts of the effects from C. In a suit for the purchase money by C against B, the latter cannot set-

off the debt against the price, for C fills two different characters, one as the vendor to B, in which

he sues B, and the other as representative to A.

(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's

goods and is liable to him in compensation which he claims to set-off. The amount not being

ascertained cannot be set-off.

(d) A sues B on a bill of exchange for Rs.500 . B holds a judgment against A for Rs.1,000.

The two claims being both definite pecuniary demands may be set-off.

(e) A sues B for compensation on account of trespass. B holds a promissory note for

Rs.1,000 from A and claims to set-off that amount against any sum that A may recover in the suit.

B may do so for as soon as A recovers both sums as definite pecuniary demands.

(f) A and B sue C for Rs.1,000 . C cannot set-off a debt due to him by A alone.

(g) A sues B and C for Rs.1,000. B cannot set-off a debt due to him alone by A.

(h) A with the partnership firm of B and C Rs.1000. B dies leaving C surviving. A sues C

for a debt of Rs.1,500 due in his separate character. C may set-off the debt of Rs.1,000.

7. Defence or set off founded on separate grounds: Where the defendant relies upon

several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall

be stated, as far as may be separately and distinctly.

8. New ground of defence: Any ground of defence which has arisen after the institution

of the suit or the presentation of a written statement claiming a set-off may be raised by the

defendant or plaintiff, as the case may be in his written statement.

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9. Subsequent Pleadings: No pleading subsequent to the written statement of a defendant

other than by way of defence to a set-off shall be presented except by the leave of the Court and

upon such terms as the Court thinks fit, but the Court may at any time require a written statement

or additional written statement from any of the parties and fix a time for presenting the same.

10. Procedure when party fails to present written statement called for by Court: Where any party from whom a written statement is so required fails to present the same within the

time fixed by Court, the Court may pronounce judgment against him, or make such order in relation

to the suit as it thinks fit.

1[11. Address for service:- (1) Every party, whether original, added or substituted, who

appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice

or other process served on him, file in Court a proceeding stating his address for service.

(2) Such address shall be entered in the Register of suits to be maintained under Order, IV

rule 2.

(3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for

service filed under this rule.

12. Consequencies of failure to file address:- (1) Where a party fails to file address for

service as provided in the preceding rule, 2[“the court may direct him to file such address and if he

fials to do so after giving him opportunity to file address”], he shall be liable to have his defence,

if any, struck out and to be placed in the same position as if he had not defended.

(2) The Court may pass an order under sub-rule (1) suo motu or on the application of any

party.

13. Lists of legal represntatives of defendants:- (1) In every suit of the nature referred

to in rule 4, Order XXII, the written statement shall be accompanied by a statement giving -

(a) the names and addresses of the persons who, in the event of the death of the

defendant, may be made a party as his legal representatives;

(b) the name and address of the person, who in the event of the death of the

defendant, shall intimate such fact to the Court, furnish the Court with the names,

particulars and addresses of the legal representatives of the defendant and make an

application for the legal representatives to be made a party.

(2) A defendant may at any time -

1 Rules 11, 12 and 13 added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. 2Added by SRO 579(1)/2014, dated : 18-06-2014

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a) file in the Court an amended list of his presumptive representatives;

b) nominate another person, in the place of the person nominated under clause (b)

of sub-rule (1) for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause

(b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings

arising therefrom, including appeal, revision of review.

_________________

ORDER IX

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

1. Parties to appear on day fixed in summons for defendant to appear and answer:

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in

attendance at the Court house in person or by their respective pleaders, and the suit shall then be

heard unless the hearing is adjourned to a future dy fixed by the Court.

2. Dismissal of suit where summons not served in consequences of plaintiff`s failure

to pay costs: Where on the day so fixed it is found that the summons has not been served upon the

defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if

any) chargeable for such service, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made although the summons has not been served upon

the defendant, if on the day fixed for him to appear and answer he attends in person or by agent

when he is allowed to appear by agent.

3. Where niether party appears, suit to be dismissed: Where neither party appears when

the suit is called on for hearing, the Court may make an order that the suit be dismissed.

4. Plaintiff may bring fresh suit or Court may restore suit to file: Where a suit is

dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh

suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there

was sufficient cause for his not paying the court-fee and postal charges (if any) required within the

time fixed before the issue of the summons, or for his non-appearance, as the case may be, the

Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with

the suit.

5. Dismissal of suits where plaintiff after summons returned unserved fails for three

months to apply for fresh summons: 1[(1) Where after a summons has been issued to the

defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period

of three months from the date of the return made to the Court by the officer ordinarily certifying

to the Court returns made by the serving officers, to apply for the issue of a fresh summons the

1 Subs. by the Code of Civil Procedure (Amdt.) Act, 1920 (24 of 1920), s.2, for the original sub-rule (1).

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Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff

has within the said period satisfied the Court that -

a) he has failed after using his best endeavours to discover the residence of the

defendant who has not been served, or

b) such defendant is avoiding service of process, or

c) there is any other sufficient cause for extending the time, in which case the

Court may extend the time for making such application for such period as it thinks

fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

6. Procedure when only plaintiff appears: (1) Where the plaintiff appears and the

defendant does not appear when the suit is called on for hearing, then -

(a) When summons duly served: if it is proved that the summons was duly served, the

Court may proceed ex parte 1[and pass decree without recording evidence].

(b) When summons not duly served: If it is not proved that the summons was duly served

the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served , byt not in due time: If it is proved that the summons was

served on the defendant, but not in sufficient time to enable him to appear and answer on the day

fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed

by the Court and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff's default that the summons was not duly served or was

not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the

postponement.

7. Procedure where defendant appears on day of adjourned hearing and assigns good

cause for previous non-apperance. Where the Court has adjourned the hearing of the suit ex

parte and the defendant at or before such hearing, appears and assigns good cause for his previous

non-appearance, he may upon such terms as the Court directs as to costs or otherwise be heard in

answer to the suit as if he had appeared on the day fixed for his appearance.

8. Procedure where defendant only appears: Where the defendant appears and the

plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that

the suit be dismissed, unless the defendant admits the claim, or part thereof in which case the Court

shall pass a decree against the defendant upon such admission, and, where part only of the claim

has been admitted, shall dismiss the suit so far as it relates to the remainder.

1 Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

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9. Decree against plaintiff by defult bars fresh suit: (1) Where a suit is wholly or partly

dismissed under rule 8. the plaintiff shall be pecluded from bringing a fresh suit in respect of the

same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies

the Court that there was sufficient cause for his non-appearance when the suit was called on for

hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or

otherwise as it thinks fit and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served

on the opposite party.

1(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908), shall apply to

applications under sub-rule (1).

10. Procedure in case of non-attendance of one or more of several plaintiff: Where

there are more plaintiffs than one and, one or more of them appear, and the others do not appear,

the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in

the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

11. Procedure in case of non-attendance of one or more of several defendants: Where

there are more defendants than one and one or more of them appear and the others do not appear

the suit shall proceed, and the Court shall a the time of pronouncing judgment make such order as

it thinks fit with respect to the defendants who do not appear.

12. Consequneces of non- attendance, without sufficient cause shown of party ordered

to appear in person: Where a plaintiff or defendant who has been ordered to appear in person

does not appear in person or show sufficient cause to the satisfaction of the Court for failing so to

appear he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and

defendants, respectively, who do not appear.

Setting aside Decree Ex Parte

2[13. Setting aside decree ex-parte against defendant: (1)] In any case in which a decree

is passed ex parte against a defendant he may apply to the Court by which the decree was passed

for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or

that he was prevented by any sufficient cause from appearing when the suit was called on for

hearing, the Court shall make an order setting aside the decree as against him upon such terms as

to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding

with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such

defendant only it may be set aside as against all or any of the other defendants also[:]3

1 New sub-rule (3) added by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s. 14. 2 Rule 13 re-numbered as sub-rule (1) of that rule by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s. 14. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for full-stop.

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1[Provided further that no decree passed ex parte shall be set aside merely on the ground of

any irregularity in the service of summons, if the Court is satisfied for reason to be accorded, that

the defendant had knowledge of the date of hearing in sufficient time to appear on that date and

answer the claim.

2[(2) The provisions of section 5 of the Limitation Act 1908 (X of 1908), shall apply to

applications under sub-rule (1).

14. No decree to be set aside without notice to opposite party: No decree shall be set

aside on any such application as aforesaid unless notice thereof has been served on the opposite

party.

_____

ORDER X

EXAMINATIONS OF PARTIES BY THE COURT

1. Ascertainment whether her allegations in pleadings are admitted or denied: At the

first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits

or denies such allegations of fact as are made in the plaint or written statement (if any) of the

opposite party, and as are not expressly or by necessary implication admitted or denied by the party

against whom they are made. The Court shall record such admissions and denials.

2[1.A The Court may adopt any lawful procedure not inconsistent with the provisions of

this Code to--

(i) Conduct preliminary proceedings and issue orders for expiditing processing

of the case;

(ii) issue, with the consent of parties, commission to examine witnesses, admit

documents and take other steps for the purpose of trial;

(iii) adopt, with the consent of aprties, any alternative method of dispute

resolution including mediation, concilation or any such other means.]

2. Oral examination of party or companion of party: At the first hearing of the suit or

at any subsequent hearing, any party appearing in person or present in Court or any person able to

answer any material questions relating to the suit by whom such party or his pleader is

accompanied 3[shall] be

1 Proviso added ibid. 2 Sub-rule (2) added by Ord. 10 of 1980, s. 14. 2Subs by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and sch., for full stip. 3Ins. by Ord. 34 of 02, S.3.

377

examined orally by the Court; and the Court may, if it thinks fit, pu in the course of such

examination questions suggested by either party.

3. Substance of examination to be written: The substance of the examination shall be

reduced to writing by the Judge, and shall form part of the record.

4. Consequence of refusal or inability of pleader to answer: (1) Where the pleader of

any party who appears by a pleader or any such person accompanying a pleader as is referred to

in rule 2, refuses or is unable to answer any material question relating to the suit which the Court

is of opinion that the party whom he represents ought to answer, and is likely to be able to answer

if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct

that such party shall appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed,

the Court may pronounce judgment against him, or make such order in relation to the suit as it

thinks fit.

_______________

ORDER XI

DISCOVERY AND INSPECTION

1. Discovery of interrogatories: In any suit the plaintiff or defendant by leave of the Court

may deliver interrogatories in writing for the examination of the opposite-parties or any one or

more of such parties, and such interrogatories when delivered shall have a note at the foot thereof

stating which of such interrogatories each of such persons is required to answer: Provided that no

party shall deliver more than one set of interrogatories to the same party without any order for that

purpose: Provided also that interrogatories which do not relate to any matters in question in the

suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-

examination of a witness.

2. Prticular interrogatories to be submitted: On an application for leave to deliver

interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the

Court. In deciding upon such application, the Court shall take into account any offer, which may

be made by the party sought to be interrogated to deliver particulars or to make admissions or to

produce documents relating to the matters in question, or any of them, and leave shall be given as

to such only of the interrogatories submitted as the Court shall consider necessary either for

disposing fairly of the suit or for saving costs.

3. Costs of interrogatories: In adjusting the costs of the suit inquiry shall at the instance

of any party be made into the propriety of exhibiting such interrogatories and if it is the opinion of

the taxing officer or of the Court, either with or without an application for inquiry, that such

interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs

occasioned by the said interrogatories and the answers thereto shall be paid in any event by the

party in fault.

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4. Forms of interrogatories: Interrogatories shall be in Form No.2 in Appendix C with

such variations as circumstances may require.

5. Corporations: Where any party to a suit is a corporation or a body of persons, whether

incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name

of any officer or other person, any opposite-party may apply for an order allowing him to deliver

interrogatories to any member or officer of such corporation or body, and an order may be made

accordingly.

6. Objections to interrogatories by answer: Any objection to answering any

interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the

purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or

on any other ground, may be taken in the affidavit in answer.

7. Setting aside and striking out interrogatories: Any interrogatories may be set aside

on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the

ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this

purpose may be made within seven days after service of the interrogatories.

8. Affidavit in answer filing: Interrogatories shall be answered by affidavit to be filed

within ten days, or within such other time as the Court may allow.

9. Forms of affidavit in answer: An affidavit in answer to interrogatories shall be in Form

No.3 in Appendix C, with such variations as circumstances may require.

10. No expectatioins to be taken: No exception shall be taken to any affidavit in answer,

but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined

by the Court.

11. Order to answer or answer further: Where any person interrogated omits to answer,

or answers insufficiently, the party interrogating may apply to the Court for an order requiring him

to answer or to answer further, as the case may be. And an order may be made requiring him to

answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.

12. Application for discovery of documents: Any party may, without filing any affidavit

apply to the Court for an order directing any other party to any suit to make discovery on oath of

the documents which are or have been in his possession or power, relating to any matter in question

therein. On the hearing of such application the Court may either refuse or adjourn the same, if

satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make

such order, either generally or limited to certain classes of documents, as may, in its discretion, be

brought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of

opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

13. Affidavit of documents: The affidavit to be made by a party against whom such order

as is mentioned in the last preceding rule has been made shall specify which (if any) of the

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documents therein mentioned he objects to produce, and it shall be in Form No.5 in Appendix C

with such variations as circumstances may require.

14. Production of documents: It shall be lawful for the Court at any time during the

pendency of any suit, to order the production by any party thereto, upon oath, of such of the

documents in his possession or power, relating to any matter in question in such suit, as the Court

shall think right; and the Court may deal with such documents, when produced, in such manner as

shall appear just.

15. Inspection of documents referred to in pleadings or affidavits: Every party to a suit

shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits

reference is made to any document, to produce such document for the inspection of the party giving

such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not

complying with such notice shall not afterwards be at liberty to put any such document in evidence

on his behalf in such suit unless he shall satisfy the Court that such document relates only to his

own title, he being a defendant to the suit, or that he had some other cause or excuse which the

Court shall deem sufficient for not complying with such notice, in which the Court may allow the

same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

16. Notice to produce: Notice to any party to produce any documents referred to in his

pleading or affidavits shall be in Form No.7 in Appendix C, with such variations as circumstances

may require.

17. Time for inspection when notices given: The party to whom such notice is given

shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice

stating a time within three days from the delivery thereof a which the documents, or such of them

as he does not object to produce, may be inspected at the office of his pleader, or in the case of

bankers' books or other books of account or books in constant use for the purposes of any trade or

business, at their usual place of custody, and stating which (if any) of the documents he objects to

produce, and on what ground. Such notice shall be in Form No.8 in Appendix C, with such

variations as circumstances may require.

18. Order for inspection: (1) Where the party served with notice under rule 15 omits to

give such notice of a time for inspection or objects to give inspection, or offers inspection

elsewhere than at the office of his pleader, the Court may, on the application of the party desiring

it make an order for inspection in such place and in such manner as it may think fit: Provided that

the order shall not be made when and so far as the Court shall be of the opinion that it is not

necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings,

particulars or affidavits of the party against whom the application is made or disclosed in his

affidavit of documents, shall be founded upon an affidavit showing of what documents inspection

is sought, that the party applying is entitled to inspect them and that they are in the possession or

power of the other party. The Court shall not make such order for inspection of such documents

when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly

of the suit or for saving costs.

380

19 Verified copies:- (1) Where inspection of any business books is applied for the Court

may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries

therein to be furnished and verified by the affidavit of some person who has examined the copy

with the original entries, and such affidavit shall state whether or not there are in the original book

any and what erasures, interlineations or alterations; Provided that, notwithstanding that such copy

has been supplied the Court may order inspection of the book from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any

document it shall be lawful for the Court to inspect the document for the purpose of deciding as to

the validity of the claim of privilege.

(3) The Court may, on the application of any party to a suit at any time, and whether an

affidavit of documents shall or shall not have already been ordered or made, make an order

requiring any other party to state by affidavit whether any one or more specific documents, to be

specified in the application, is or are, or has or have at any time been in his possession or power,

and, if not then in his possession, when he parted with the same and what has become thereof.

Such application shall be made on an affidavit stated that in the belief of the deponent the party

against whom the application is made has, or has at sometime had, in his possession or power the

document or documents specified I the application, and that they relate to the matters in question

in the suit, or to some of them.

20. Premature discovery: Where the party from whom discovery of any kind or

inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the

right to the discovery or inspection sought depends on the determination of any issue or question

in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute

in the suit should be determined before deciding upon the right to the discovery or inspection,

order that such issue or question be determined first, and reserve the question as to the discovery

or inspection.

21. Non-compliance with order for discovery: Where any party fails to comply with

any order to answer interrogatories, or for discovery or inspection of documents he shall, if a

plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have

his defend, if any, struck out, and to be placed in the same position as if he had not defended, and

the party interrogating or seeking discovery or inspection may apply to the Court for an order to

that effect and an order may be made accordingly.

22. Using answers to interrogatories at trial: Any party may, at the trial of a suit, use in

evidence any one or more of the answers or any part of an answer of the opposite-party to

interrogatories without putting in the others or the whole of such answer: Provided always that in

such case the Court may look at the whole of the answers, and if it shall be of opinion that any

others of them are so connected with those put in that the last-mentioned answers ought not to be

used without them, it may direct them to be put in.

23. Order to apply to minors: This order shall apply to minor plaintiffs and defendants,

and to the next friends and guardians for the suit of persons under disability.

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______________

382

ORDER XII

ADMISSIONS

1. Notice of admission of case: Any party to a suit may give notice, by his pleading or

otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

2. Notice to admit documents: Either party may call upon the other party to admit any

document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice,

the costs of proving any such document shall be paid by the party so neglecting or refusing,

whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving

any document shall be allowed unless such notice is given, except where the omission to give the

notice is in the opinion of the Court a saving of expense.

3. Form of notice: A notice to admit documents shall be in Form No.9 in Appendix C,

with such variations as circumstances may require.

4. Notice to admit facts: Any party may, by notice in writing, at any time not later than

nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of

the suit only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect

to admit the same within six days after service of such notice, or within such further time as may

be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so

neglecting or refusing, whatever the result of the suit may be unless the Court otherwise directs:

Provided that any admission made in pursuance of such notice is to be deemed to be made only

for the purposes of the particular suit, and not as an admission to be used against the party on any

other occasion or in favour of any person other than the party giving the notice: Provided also that

the Court may at any time allow any party to amend or withdraw any admission so made on such

terms as may be just.

5. Forms of admission: A notice to admit facts shall be in Form No.10 in Appendix C and

admissions of facts shall be in Form No.11 in Appendix C, with such variations as circumstances

may require.

6. Judgment on admissions: Any party may, at any stage of a suit, where admissions of

fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment

or order as upon such admissions he may be entitled to, without waiting for the determination of

any other question between the parties: and the Court may upon such application make such order,

or give such judgment as the Court may think just.

7. Affidavit of signature: An affidavit of the pleader or his clerk, of the due signature of

any admissions made in pursuance of any notice to admit documents of facts, shall be sufficient

evidence of such admissions, if evidence thereof is required.

8. Notice to produce documents: Notice to produce documents shall be in Form No.12 in

Appendix C with such variations as circumstances may require. An affidavit of the pleader, or his

383

clerk, of the service of any notice to produce, and of the time when it was served, with a copy of

the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of

the time when it was served

9. Costs: If a notice to admit or produce specifies documents which are not necessary the

costs occasioned thereby shall be borne by the party giving such notice.

____________

ORDER XIII

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

1. Documentary evidence to be produced at first hearing: (1) The parties or their

pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every

description in their possession or power, on which they intend to rely, and which has not already

been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced: Provided that they are accompanied

by an accurate list thereof prepared in such form as the High Court directs.

1[(3) On production of documents under this rule, the Court may call upon the parties to

admit or deny the documents produced in the Court and record their admission or, as the case may

be denial.]

2. Effect of non-production of documents: No documentary evidence in the possession

or power of any party which should have been but has not been produced in accordance with the

requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good

cause is shown to the satisfaction of the Court for the non-production thereof; and the Court

receiving any such evidence shall record the reasons for so doing.

3. Rejection of irrelevant or inadmissible documents: The Court may at any stage of the

suit reject any document which it considers irrelevant or otherwise inadmissible, recording the

ground of such rejection.

4. Endorsement on documents admitted in evidence: (1) Subject to the provisions of the

next following sub-rule there shall be endorsed on every document which has been admitted in

evidence in the suit the following particulars namely:-

1Added by Act XIV of 1994, S.11.

384

(a) the number and title of the suit,

(b) the name of the person producing the document,

(c) the date on which it was produced, and

(d) a statement of its having been so admitted;

and the endorsement shall be signed or initialed by the judge.

(2) Where a document so admitted is an entry in a book, account or record, and a copy

thereof has been substituted for the original under the next following rule, the particulars aforesaid

shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the

Judge.

5. Endorsements on copies of admitted entries in books, accounts and records: (1)

Save in so far as is otherwise provided by the Banker's Books Evidence Act, 1891, where a

document admitted in evidence in the suit is an entry in a letter-book or a shop-book or other

account in current use, the party on whose behalf the book or account is produced may furnish a

copy of the entry.

(2) Where such a document is an entry in a public record produced from a public office, or

by a public officer, or an entry in a book or account belonging to a person other than a party on

whose behalf the book or account is produced, the Court may require a copy of the entry to be

furnished:

(a) where the record, book or account is produced on behalf of a party, then by that party,

or

(b) where the record, book or account is produced in obedience to an order of the Court

acting of its own motion, then by either or any party.

(3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the

Court shall, after causing the copy to be examined, compared and certified in manner mentioned

in rule 17 of Order VII, mark the entry and cause he book, account or record in which it occurs to

be returned to the person producing it.

6. Endorsements on documents rejected as inadmissible in evidence: Where a

document relied on as evidence by either party is considered by the Court to be inadmissible in

evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of

rule 4, sub-rule (1) together with a statement of its having been rejected, and the endorsement shall

be signed or initialed by the Judge.

7. Recording of admitted and return of rejected documents:- (1) Every document which

has been admitted in evidence or a copy thereof where a copy has been substituted for the original

under rule 5, shall form part of the record of the suit.

(2) Documents not admitted in evidence shall not form part of the record and shall be

returned to the persons respectively producing them.

385

8. Court may order any document to be impounded: Notwithstanding anything

contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees

sufficient cause, direct any document or book produced before it in any suit to be impounded and

kept in the custody of an officer of the Court for such period and subject to such conditions as the

Court thinks fit.

9. Return of admitted documents:- (1) Any person, whether a party to the suit or not,

desirous of receiving back any document produced by him in the suit and placed on the record

shall, unless the document is impounded under rule 8, be entitled to receive back the same,-

(a) where the suit is one in which an appeal is not allowed, when the suit has

been disposed of, and

(b) where the suit is one in which an appeal is allowed when the Court is

satisfied that the time for preferring an appeal has elapsed and that no appeal

has been preferred or, if an appeal has been preferred, when the appeal has

been disposed of:

Provided that a document may be returned at any time earlier than that prescribed by this

rule if the person applying therefore delivers to the proper officer a certified copy to the substituted

for the original and undertakes to produce the original if required to do so:

Provided also that no document shall be returned which, by force of the decree, has become

wholly void or useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person

receiving it.

10. Court may send for papers from its own records or from other Courts:- (1) The

Court may of its own motion, and may in its discretion upon the application of any of the parties

to a suit, send for, either from its own records or from any other Court, the record of any other suit

or proceeding, and inspect the same.

(2) Every application made under this rule shall (unless the Court otherwise directs) be

supported by an affidavit showing how the record is material to the suit in which the application

is made, and that the applicant cannot without unreasonable delay or expense obtain a duly

authenticated copy of the record or of such portion thereof as the applicant requires, or that the

production of the original is necessary for the purposes of justice.

(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence

any document which under the law of evidence would be inadmissible in the suit.

11. Provisions as to documents applied to material objects: The provisions herein

contained, as to documents shall, so far as may be, apply to all other material objects producible

as evidence.

386

ORDER XIV

SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON

ISSUES OF LAW OR ON ISSUES AGREED UPON

1. Framing of issues: (1) Issue arise when a material proposition of fact or law is affirmed

by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege

in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3)Each material proposition affirmed by one party and denied by the other shall form the

subject of a distinct issue.

(4) Issues are of two kinds: (a) issues of fact, (b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written

statements, if any, and after such examination of the parties as may appear necessary, ascertain

upon what material propositions of fact or of law the parties are at variance, and shall thereupon

proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant

at the first hearing of the suit makes no defence.

2. Issue of law and facts: Where issues both of law and of fact arise in the same suit, and

the Court is of opinion that the case or any part thereof may be disposed of on the issues of law

only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement

of the issues of fact until after the issues of law have been determined.

3. Materials from which issue may be framed: The Court may frame the issues from all

or any of the following materials-

(a) Allegations made on oath by the parties, or by any persons present on their behalf,

or made by the pleaders of such parties;

(b) Allegations made in the pleadings or in answers to interrogatories delivered in the

suit;

(c) The contents of documents produced by the either party.

4. Court may examine witnesses or documents before framing issues: Where the Court

is of opinion that the issues cannot be correctly framed without the examination of some person

not before the Court or without the inspection of some document not produced in the suit, it may

adjourn the framing of the issues to a future day, and may (subject to any law for the time being in

force) compel the attendance of any person or the production of any document by the person in

whose possession or power it is by summons or other process.

387

5. Power to amend and strike out issues: (1) The Court may at any time before passing

a decree amend the issues or frame additional issues on such terms as it thinks fit,. And all such

amendments or additional issues as may be necessary for determining the matters in controversy

between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that

appear to it to be wrongly framed or introduced.

6. Question of fact or law may by agreement be stated in form of issues: Where the

parties to a suit are agreed as to the question of fact or of law to be decided between them, they

may state the same in the form of an issue, and enter, into an agreement in writing that, upon the

finding of the Court in the affirmative or the negative of such issue-

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in

such manner as the Court may direct, shall be paid by one of the parties to the other

of them, or that one of them be declared entitled to some right or subject to some

liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be

delivered by one of the parties to the other of them, or as that other may direct; or

(c) One or more of the parties shall do or abstain from doing some particular act

specified in the agreement and relating to the matter in dispute.

7. Court if satisfied that agreement was executed in good faith, may pronounce

judgment: Where the Court is satisfied, after making such inquiry as it deems proper -

(a) That the agreement was duly executed by the parties;

(b) That they have a substantial interest in the decision of such question as aforesaid, and

(c) That the same is fit to be tried and decided,

it shall proceed to record and try the issue and state its finding or decision thereon in the same

manner as if the issue had been framed by the Court;

And shall, upon the finding or decision on such issue, pronounce judgment according to

the terms of the agreement; and, upon the judgment so pronounced, a decree shall follow.

______

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ORDER XV

DISPOSAL OF THE SUIT AT THE FIRST HEARING

1. Parties not an issue: Where at the first hearing of a suit it appears that the parties are

not at issue on any question of law or of fact, the Court may at once pronounce judgment.

2. One of several a defendants not an issue: Where there are more defendants than one,

and any one of the defendants is not at issue with the plaintiff on any question of law or of fact,

the Court may at once pronounce judgment for or against such defendant and the suit shall proceed

only against the other defendants.

3. Parties at issue:- (1) Where the parties are at issue on some question of law or of fact,

and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that

no further argument or evidence than the parties can at once adduce is required upon such of the

issues as may be sufficient for the decision of the suit, and that no injustice will result from

proceeding with the suit forthwith, the Court may proceed to determine such issues, and if the

finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the

summons has been issued for the settlement of issues only or for the final disposal of the suit:

Provided that, where the summons has been issued for the settlement of issues only, the

parties or their pleaders are present and none of them objects.

(2) Where the finding is not sufficient for the decision, the Court shall postpone the further

hearing of the suit, and shall fix a day for the production of such further evidence, or for such

further argument as the case requires.

4. Failure to provide evidence: Where the summons has been issued for the final disposal

of the suit and either party fails without sufficient cause to produce the evidence on which he relies,

the Court may at once pronounce judgment or may, if it thinks fit, after framing and recording

issues adjourn the suit for the production of such evidence as may be necessary for its decision

upon such issues.

_______

ORDER XVI

SUMMONING AND ATTENDANCE OF WITNESSES

1[1. Summons to attend to give evidence or produce documents: - (1) Not later than

seven days after the settlement of issues, the parties shall present in Court a 2[certificate of

readiness to produce evidence along with] a list of witnesses whom they propose to cal either to

give evidence or to produce documents.

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the original rule 1. 2Ins. by Act XIV of 1994, S.11.

389

(2) A party shall not be permitted to call witnesses other than those contained in the said

list, except with the permission of the Court and after showing good cause for the omission of

permission; it shall record reasons for so doing.

(3) On application to the Court or such officer as it appoints in this behalf, the parties may

obtain summons for persons whose attendance is required in Court:

Provided that no summons shall be issued for service on a person under rule 8 unless an

application in that behalf is made not later than fourteen days prior to the date fixed for the hearing

of the suit and the necessary expenses for the summoning of such person are deposited].

2. Expenses of witness to be paid into Court on applying for summons:- (1) The party

applying for a summons shall, before the summons is granted and within a period to be fixed, pay

into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and

other expenses of the person summoned in passing to and from the Court in which he is required

to attend, and for one day's attendance.

(2) Experts: In determining the amount payable under this rule, the Court may, in the case of any

person summoned to give evidence as an expert, allow reasonable remuneration for the time

occupied both in giving evidence and in performing any work of an expert character necessary for

the case.

(3) Scale of expenses: Where the Court is subordinate to a High Court, regard shall be had,

in fixing the scale of such expenses, to any rules made in that behalf.

3. Tender of expenses to witness: The sum so paid into Court shall be tendered to the

person summoned, at the time of serving the summons, if it can be served personally.

4. Procedure where insufficient sum paid in:- (1) Where it appears to the Court or to

such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such

expenses or reasonable remuneration, the Court may direct such further sum to be paid to the

person summoned as appears to be necessary on that account, and in case of default in payment,

may order such sum to be levied by attachment and sale of the movable property of the party

obtaining the summons; or the Court may discharge the person summoned, without requiring him

to give evidence; or may both order such levy and discharge such person as aforesaid.

(2) Expenses of witness detained more than one day: Where it is necessary to detain the

person summoned for a longer period than one day, the Court may, from time to time, order the

party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the

expenses of his detention for such further period, and in default of such deposit being made, may

order such sum to be levied by attachment and sale of the movable property of such party; or the

Court may discharge the person summoned without requiring him to give evidence; or may both

order such levy and discharge such person as aforesaid.

5. Time, place and purpose of attendance to be specified in summons: Every summons

for the attendance of a person to give evidence or to produce a document shall specify the time

390

and place at which he is required to attend, and also whether his attendance is required for the

purpose of giving evidence or to produce a document, or for both purposes; and any particular

document which the person summoned is called on to produce, shall be described in the summons

with reasonable accuracy.

6. Summons to produce document: Any person may be summoned to produce a

document, without being summoned to give evidence; and any person summoned merely to

produce a document shall be deemed to have complied with the summons if he causes such

document to be produced instead of attending personally to produce the same.

7. Power to require persons present in Court to give evidence or produce document: Any person present in Court may be required by the Court to give evidence or to produce any

document then and there in his possession or power.

1[7-A. Service of summons by parties:- (1) Except where it appears to the Court that a

summons under this Order should be served by the Court in the same manner as a summons to a

defendant, the Court shall make over for service all summons under this Order to the party applying

therefore.

(2) The service shall be effected by or on behalf of such party by delivering or tendering to

the witness in person a copy thereof signed by the Judge or such officer as he appoints in this

behalf and sealed with the seal of the Court.

(3) Rules 16 and 18 of Order V shall apply to summons personally served under this rule,

as though the person effecting service were a serving officer.

2[8. Service of summons by Courts: Every summons under this Order, not being a

summons made over to a party for service under rule 7-A of this Order, shall be served as nearly

as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof

of service shall apply thereto.

9. Time for serving summons: Service shall in all cases be made a sufficient time before

the time specified in the summons for the attendance of the person summoned, to allow him a

reasonable time for preparation and for travelling to the place at which his attendance is required.

10. Procedure where witness fails to comply with summons:- (1) Where a person to

whom a summons has been issued either to attend to give evidence or to produce a document fails

to attend or to produce the document in compliance with such summons, the Court shall, if the

certificate of the serving-officer has not been verified by affidavit, and may, if it has been so

verified, examine the serving-officer on oath, or cause him to be so examined by another Court,

touching the service or non-service of the summons.

(2) Where the Court sees reason to believe that such evidence or production is material and

that such person has without lawful excuse, failed to attend or to produce the document in

1 Rule 7A ins. by the Law Reforms Ordinance 1972 (12 of 1972), s.2 and Sch. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the original rule 8.

391

compliance with such summons or has intentionally avoided service, it may issue a proclamation

requiring him to attend to give evidence or to produce the document at a time and place to be

named therein; and a copy of such proclamation shall be affixed on the outer door or other

conspicuous part of the house in which he ordinarily resides.

(3) In lieu of or at the time of issuing such proclamation or at any time afterwards,. The

Court may, in its discretion, issue a warrant either with or without bail, for the arrest of such person,

and may make an order for the attachment of his property to such amount as it thinks fit, not

exceeding the amount of the costs of attachment and of any fine which may be imposed under rule

12:

Provided that no Court of Small Causes shall make an order for the attachment of

immovable property.

11. If witness appears attachment may be withdraws: Where, at any time after the

attachment of his property, such person appears and satisfies the Court,-

(a) That he did not, without lawful excuse, fail to comply with the summons or intentionally

avoid service, and

(b) where he has failed to attend at the time and place named in a proclamation issued under the

last preceding rule, that he had no notice of such proclamation in time to attend,

the Court shall direct that the property be released from attachment and shall make such

order as to the costs of the attachment as it thinks fit.

12. Procedure if fails to appear: The Court may, where such person does not appear, or

appears but fails so to satisfy the Court, impose upon him such fine not exceeding 1[two] thousand

rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case,

and may order his property, or any part thereof, to be attached and sold or, if already attached

under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with

the amount of the said fine, if any:

Provided that, if the person whose attendance is required pays into Court the costs and fine

aforesaid, the Court shall order the property to be released from attachment.

13. Mode of attachment: The provisions with regard to the attachment and sale of property

in the execution of a decree shall, so far as they are applicable be deemed to apply to any

attachment and sale under this Order as if the person whose property is so attached were a

judgment-debtor.

14. Court may of its accord summon as witnesses strangers to suit: Subject to the

provisions of this Court as to attendance and appearance and to any law for the time being in force,

where the Court at any time thinks it is necessary to examine any person other than a party to the

1 Subs. by Act XIV of 1994, S.11

392

suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such

person to be summoned as a witness to give evidence, or to produce any document in his

possession, on a day to be appointed and may examine him as a witness or require him to produce

such document.

15. Duty of persons summoned to give evidence or produce documents: Subject as last

aforesaid whoever is summoned to appear and give evidence in a suit shall attend at the time and

place named in the summons for that purpose, and whoever is summoned to produce a document

shall either attend to produce it, or cause it to be produced, at such time and place.

16. When they may depart: - (1) A person so summoned and attending shall unless the

Court otherwise directs attend at each hearing until the suit has been disposed of.

(2) On the application of either party and the payment through the Churt of all necessary

expenses (if any), the Court may require any person so summoned and attending to furnish security

to attend at the next or any other hearing or until the suit is disposed of and, in default of his

furnishing such security, may order him to be detained in the civil prison.

17. Application of rules 10 to 13: The provisions of rules 10 to 13 shall, so far as they are

applicable, be deemed to apply to any person who having attended in compliance with a summons

departs, without lawful excuse, in contravention of rule 16.

18. Procedure where witnesses apprehended cannot give evidence or produce

document: Where any person arrested under a warrant is brought before the Court in custody and

cannot, owing to the absence of the parties or any of them, give the evidence or produce the

document which he has been summoned to give or produce, the Court may require him to give

reasonable bail or other security for his appearance at such time and place as it thinks fit, and, on

such bail or security being given, may release him, and, in default of his giving such bail or

security, may order him to be detained in the civil prison.

1[19. No witness to be ordered to attend in person unless resident within certain limits:

A person shall not be asked by a Court to attend in person to give evidence unless he resides at

any place in Pakistan.

20. Consequence of refusal of party to give evidence when called on by Court: Where

any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to

give evidence or to produce any document then and therein his possession or power, the Court may

pronounce judgment against him or make such order in relation to the suit as it thinks fit.

21. Rules as to witnesses to apply to parties summoned: Where any party to a suit is

required to give evidence or to produce a document, the provisions as to witnesses shall apply to

him so far as they are applicable.

_____________

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the original rule 19.

393

ORDER XVII

ADJOURNMENTS

1. Court may grant time and adjourn hearing: (1) The Court may, if sufficient cause is

shown at any stage of the suit grant time to the parties or to any of them, and may from time to

time adjourn the hearing of the suit.

2. Costs of adjournment: In every such case the Court shall fix a day for the further

hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned

by the adjournment:

Provided that, when the hearing of evidence has once begun, the hearing of the suit shall

be continued from day to day until all the witnesses in attendance have been examined, unless the

Court finds the adjournment of the hearing beyond the following day to be necessary for reasons

to be recorded.

2. Proceed if parties fails to appear on day fixed: Where, on any day to which the

hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to

dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order

as it thinks fit.

3. Court may proceed not withstanding either party fails to produce evidence, etc:

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause

the attendance of his witnesses, or to perform any other act necessary to the further progress of the

suit, for which time has been allowed, the Court may, notwithstanding each default, proceed to

decide the suit forthwith.

1[4. Appearance of parties on the day next after holiday: Where a suit or proceeding is

set down for a day which is a holiday, the parties thereto shall appear in the Court on the day next

following that day, or, when two or more successive days are holidays, on the day next following

the last of such successive days, and the Court may then either proceed with the suit on such day,

or fix some other day thereafter.

5. Appearance of parties on the day when the presiding officer is absent: When on day

the presiding officer of the Court is absent by reason of illness or any other cause, the parties to

the suit or proceeding set down for that day(notwithstanding the knowledge that the presiding

officer would be absent) shall appear in the Court in the Courthouse on that day and the ministerial

officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying

the other date fixed for proceeding with the suit or proceeding and signed by him].

____________

1 Rule 4 and 5 were added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

394

ORDER XVIII

HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

1. Right to begin: The plaintiff has the right to begin unless the defendant admits the facts

alleged by the plaintiff and contends that either in point of law or on some additional facts alleged

by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case

the defendant has the right to begin.

2. Statement and production of evidence:- (1) On the day fixed for the hearing of the suit

or on any other day to which the hearing is adjourned, the party having the right to begin shall state

his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then

address the Court generally on the whole case.

(3)The party beginning may then reply generally on the whole case.

3. Evidence where several issues: Where there are several issues, the burden of proving

some of which lies on the other party the party beginning may, at his option, either produce his

evidence on those issues or reserve it by way of answer to the evidence produced by the other

party; and in the latter case, the party beginning may produce evidence on those issues after the

other party has produced all his evidence, and the other party may then reply specially on the

evidence so produced by the party beginning; but the party beginning will then be entitled to reply

generally on the whole case.

4. Witnesses to be examined in open Court: The evidence of the witnesses in attendance

shall be taken orally in open Court in the presence and under the personal direction and

superintendence of the Judge.

5. How evidence shall be taken in appealable cases: In cases in which an appeal is

allowed the evidence of each witness shall be taken down in writing, in the language of the Court,

by or in the presence and under the personal direction and superintendence of the Judge, not

ordinarily in the form of question and answer, but in that of a narrative, and, when completed, shall

be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary,

correct the same, and shall sign it.

6. When deposition to be interrupted: Where the evidence is taken down in a language

different from that in which it is given, and the witness does not understand the language in which

it is taken down, the evidence as taken down in writing shall be interpreted to him in the language

in which it is given.

7. Evidence under section 138: Evidence taken down under section 138 shall be in the

form prescribed by rule 5 and shall be read over and signed and, as occasion may require,

interpreted and corrected as if it were evidence taken down under that rule.

395

8. Memorandum when evidence not taken down by judge: Where the evidence is not

taken down in writing by the Judge, he shall be bound, as the examination of each witness

proceeds, to make a memorandum of the substance of what each witness deposes, and such

memorandum shall be written and signed by the Judge and shall form part of the record.

9. When evidence may be taken in English: Where English is not the language of the

Court, but all the parties to the suit who appear in person, and the pleaders of such as appear by

pleaders, do not object to have such evidence as is given in English taken down in English, the

Judge may so take it down.

10. Any particular question and answer may be taken down: The Court may, of its own

motion or on the application of any party or his pleader, take down any particular question and

answer, or any objection to any question, if there appears to be any special reason for so doing.

11. Questions objected to and allowed by Court: Where any question put to a witness is

objected to by a party or his pleader, and the Court allows the same to be put, the Judge shall take

down the question the answer, the objection and the name of the person making it, together with

the decision of the Court thereon.

12. Remarks on demeanor of witness: The Court may record such remarks as it thinks

material respecting the demeanor of any witness while under examination.

13. Memorandum of evidence in un-appealable cases: In cases in which an appeal is not

allowed, it shall not be necessary to take down the evidence of the witnesses in writing at length;

but the Judge, as the examination of each witness proceeds, shall make a memorandum of the

substance of what he deposes, and such memorandum shall be written and signed by the Judge and

shall form part of the record.

14. Judge unable to make such memorandum to record reasons of his inability:- (1)

Where the Judge is unable to make a memorandum as required by this Order, he shall cause the

reason of such inability to be recorded, and shall cause the memorandum to be made in writing

from his dictation in open Court.

(2) Every memorandum so made shall form part of the record.

15. Power to deal with evidence taken before an other Judge:- (1) Where a Judge is

prevented by death, transfer or other cause from concluding the trial of a suit, his successor may

deal with any evidence or memorandum taken down or made under the foregoing rules as if such

evidence or memorandum had been taken down or made by him or under his direction under the

said rules and may proceed with the suit from the stage at which his predecessor left it.

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply

to evidence taken in a suit transferred under section 24.

16. Power to examine witness immediately:- (1) Where a witness is about to leave the

jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his

396

evidence should be taken immediately, the Court may, upon the application of any party or of the

witness, at any time after the institution of the suit, take the evidence of such witness in manner

hereinbefore provided.

(2) Where such evidence is not taken forthwith and in the presence of the parties, such

notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the

parties.

(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct,

shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it

may then be read at any hearing of the suit.

17. Court may recall and examine witness: The Court may at any stage of a suit recall

any witness who has been examined and may (subject to the law of evidence for the time being in

force) put such questions to him as the Court thinks fit.

18. Power of Court to inspect: The Court may at any stage of a suit inspect any property

or thing concerning which any question may arise.

____________

ORDER XIX

AFFIDAVITS

1. Power to order any point to be proved by affidavit: Any Court may at any time for

sufficient reason order that any particular fact or facts may be proved by affidavit, or that the

affidavit of any witness may be read at the hearing, on such conditions as the Court thinks

reasonable:

Provided that where it appears to the Court that either party bona fide desires the production

of a witness for cross-examination, and that such witness can be produced, an order shall not be

made authorizing the evidence of such witness to be given by affidavit.

2. Power to order attendance of deponent for cross examination: - (1) Upon any

application evidence may be given by affidavit, but the Court may, at the instance of either party,

order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal

appearance in Court, or the Court otherwise directs.

3. Matters to which affidavit shall be confined: (1) Affidavits shall be confined to such

facts as the deponent is able of his own knowledge to prove, except on interlocutory applications,

on which statements of his belief may be admitted; provided that the grounds thereof are stated.

(2) The cost of every affidavit which shall unnecessarily set forth matter of hearsay or

argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise

directs) be paid by the party filing the same.

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_____________

ORDER XX

JUDGMENT AND DECREE

1[1. Judgment when pronounced: (1) On completion of evidence, the Court, shall fix a

date,. Not exceeding fifteen days, for hearing of arguments of parties.

(2) The Court shall, after the case has been heard, pronounce judgment in open Court, either

at once or on some future day not exceeding thirty days, for which due notice shall be given to the

parties or their advocates.]

2. Power to pronounce judgment written by judge`s predecessor: A Judge may

pronounce a judgment written but not pronounced by his predecessor.

3. Judgment to be signed: The judgment shall be dated and signed by the Judge in open

Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added

to save as provided by section 152 or on review,

4. Judgment of Small Cause Courts: (1) Judgments of a Court of Small Causes need not

contain more than the points for determination and the decision thereon.

(2) Judgments of other Courts: Judgments of other Courts shall contain a concise

statement of the case, the points for determination, the decision thereon, and the reasons for such

decision.

5. Court to state its decision on each issue: In suits in which issues have been framed,

the Court shall state its finding or decision, with the reasons therefore, upon each separate issue,

unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

6. Contents of decree: - (1) The decree shall agree with the judgment; it shall contain the

number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall

specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out

of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set-off

against any sum which is admitted or found to be due from the former to the latter.

7. Date of decree: The decree shall bear date the day on which the judgment was

pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in

accordance with the judgment, he shall sign the decree.

1 Subs. by Act XIV of 1994, S.11.

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8. Procedure where Judge has vacated office before signing decree: Where a Judge has

vacated office after pronouncing judgment but without signing the decree a decree drawn up in

accordance with such judgment may be signed by his successor or, if the Court has ceased to exist,

by the Judge of any Court to which such Court was subordinate.

9. Decree for recovery of immovable property: Where the subject-mater of the suit is

immovable property, the decree shall contain a description of such property sufficient to identify

the same, and where such property can be identified by boundaries or by numbers in a record of

settlement or survey, the decree shall specify such boundaries or numbers.

10. Decree for delivery of movable property: Where the suit is for movable property,

and the decree is for the delivery of such property, the decree shall also state the amount of money

to be paid as an alternative if delivery cannot be had.

11. Decree may direct payment by installments:- (1) Where and in so far as a decree is

for the payment of money, the Court may for any sufficient reason at the time of passing the decree

order that payment of the amount decreed shall be postponed or shall be made by installments,

with or without interest, notwithstanding anything contained in the contract under which the

money is payable.

(2) After the passing of any such decree the Court may, on the application of the judgment-

debtor and with the consent of the decree-holders, order that payment of the amount decreed shall

be postponed or shall be made by installments on such terms as to the payment of interest, the

attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise,

as it thinks fit.

12. Decree for possession and mesne profits :-(1) Where a suit is for the recovery of

possession of immovable property and for rent or mesne profits, the Court may pass a decree-

a) For the possession of the property;

b) For the rent or mesne profits, which have accrued on the property during a period

prior to the institution of the suit or directing an inquiry as to such rent or mesne

profits;

c) Directing an inquiry as to rent or mesne profits from the institution of the suit until-

i. the delivery of possession to the decree-holder;

ii. the relinquishment of possession by the judgment-debtor with notice to the

decree-holder through the Court; or

iii. the expiration of three years from the date of the decree whichever event first

occurs.

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(2) Where an inquiry is directed under clause(b) or clause (c), a final decree in respect of

the rent or mesne profits shall be passed in accordance with the result of such inquiry.

13. Decree in administration suit:- (1) Where a suit is for an account of any property and

for its due administration under the decree of the Court, the Court shall, before passing the final

decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and

giving such other directions as it thinks fit.

(2) In the administration by the Court of the property of any deceased person, if such

property proves to be insufficient for the payment in full of his debts and liabilities, the same rules

shall be observed as to the respective rights of secured and unsecured creditors and as to debts and

liabilities provable and as to the valuation of annuities and future and contingent liabilities

respectively, as may be in force for the time being, within the local limits of the Court in which

the administration suit is pending with respect to the estates of persons adjudged or declared

insolvent; and all persons who in any such case would be entitled to be paid out of such property,

may come in under the preliminary decree, and make such claims against the same as they may

respectively be entitled to by virtue of this Code.

14. Decree in pre-emption suit:- (1) Where the Court decrees a claim to pre-emption in

respect of a particular sale of property and the purchase-money has not been paid into Court the

decree shall-

a) Specify a day on or before which the purchase-money shall be so paid, and

b) direct that on payment into Court of such purchase-money, together with the costs(if

any) decreed against the plaintiff, on or before the day referred to in clause(a), the

defendant shall deliver possession of the property to the plaintiff, whose title thereto shall

be deemed to have accrued from the date of such payment, but that, if the purchase-money

and the costs (if any) are not so paid the suit shall be dismissed with costs.

(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall

direct,-

a) If and in so far as the claims decreed are equal in decree that the claim of each pre-

emptor complying with the provisions of sub-rule (1) shall take effect in respect of a

proportionate share of the property including any proportionate share in respect of which

the claim of any pre-emptor failing to comply with the said provisions would, but for such

default, have taken effect; and

b) If and in so far as the claims decreed are different in degree, that the claim of the inferior

pre-emptor shall not take effect unless and until the superior pre-emptor has failed to

comply with the said provisions.

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15. Decree in suit for dissolution of partnership: Where a suit is for the dissolution of a

partnership or the taking of partnership accounts the Court, before passing a final, decree, may

pass as preliminary decree declaring the proportionate shares of the parties, fixing the day on which

the partnership shall stand dissolved or be deemed to have been dissolved, and directing such

accounts to be taken, and other acts to be done, as it thinks fit.

16. Decree in suits for account between principal and agent: In a suit for an account of

pecuniary transactions between a principal and an agent, and in any other suit not herein-before

provided for, where it is necessary, in order to ascertain the amount of money due to or from any

party, that an account should be taken, the Court shall, before passing its final decree, pass a

preliminary decree directing such accounts to be taken as it thinks fit.

17. Special directions as to accounts: The Court may either by the decree directing an

account to be taken or by any subsequent order give special directions with regard to the mode in

which the account is to be taken or vouched and in particular may direct that in taking the account

the books of account in which the accounts in question have been kept shall be taken as prima

facie evidence of the truth of the matters therein contained with liberty to the parties interested to

take such objection thereto as they may be advised.

18. Decree in suit for partition of property or separate possession of a share therein: Where the Court passes a decree for the partition of property or for the separate possession of a

share therein, then-

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to

the Government, the decree shall declare the rights of the several parties interested in the

property, but shall direct such partition or separation to be made by the Collector, or any

gazetted subordinate of the Collector deputed by him in this behalf, in accordance with

such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable

property, the Court may, if partition or separation cannot be conveniently made without

further inquiry, pass a preliminary decree declaring the rights of the several parties

interested in the property and giving such further directions as may be required.

19. Decree when set-off is allowed:- (1) Where the defendant has been allowed a set-off

against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what

amount is due to the defendant, and shall be for the recovery of any sum which appears to be due

to either party.

(2) Appeal from decree relating to set off: Any decree passed in a suit in which a set-off

is claimed shall be subject to the same provisions in respect of appeal to which it would have been

subject if no set-off had been claimed.

(3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of

Order VIII or otherwise.

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20. Certified copies of the judgment and decree to be furnished: Certified copies of the

judgment and decree shall be furnished to the parties on application to the Court and at their

expense.

____________

ORDER XXI

EXECUTION OF DECREES AND ORDERS

Payment under Decrees

1. Modes of paying money under decree:- (1) All money payable under a decree shall

be paid as follows, namely:-

a) into the Court whose duty it is to execute the decree;

or

b) Out of Court to the decree-holder [through a bank or by postal money order or

evidence by writing signed by the decree- holder or his authorized agent]; or

c) Otherwise as the Court which made the decree directs.

(2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment

shall be given to the decree-holder.

2. Payment out of Court to decree holder: - (1) Where any money payable under a decree

of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the

satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the

Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor also may inform the Court of such payment or adjustment and

apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the

Court, why such payment or adjustment should not be recorded as certified; and if, after service of

such notice, the decree-holder fails to show cause why the payment or adjustment should not be

recorded as certified, the Court shall record the same accordingly.

1[(3) Any payment not made in the manner provided in rule 1 or any adjustment not made in

writing shall not be recognized by the Court executing the decree.

Courts executing Decrees

3. Lands situate in more than one jurisdiction: Where immovable property forms one estate

or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such

Courts may attach and sell the entire estate or tenure.

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the original sub-rule (3).

402

4. Transfer to Court of Small Causes. Omitted by the A.O., 1949.

5. Mode of transfer: Where the Court to which a decree is to be sent for execution is

situate within the same district as the Court which passed such decree, such Court shall send the

same directly to the former Courts. But, where the Court to which the decree is to be sent for

execution is situate in a different district, the Court which passed it shall send it to the District

Court of the district in which the decree is to be executed.

6. Procedure where Court desires that its own decree shall be executed by another

Court: The Court sending a decree for execution shall send -

a) a copy of the decree;

b) a certificate setting forth that satisfaction of the decree has not been obtained by

execution within the jurisdiction of the Court by which it was passed, or where the

decree has been executed in part, the extent to which satisfaction has been obtained

and what part of the decree remains unsatisfied; and

c) a copy of any order for the execution of the decree, or, if no such order has been

made, a certificate to that effect.

7. Court receiving copies of decree, etc. to file same without proof: The Court to which

a decree is so sent shall cause such copies and certificates to be filed, without any further proof of

the decree or order for execution, or of the copies thereof unless the Court for any special reasons

to be recorded under the hand of the Judge, requires such proof.

8. Execution of decree or order by Court to which it is sent: Where such copies are so

filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by

such Court or be transferred for execution to any subordinate Court of competent jurisdiction.

9. Execution by High Court of decree transferred by other Court: Where the Court to

which the decree is sent for execution is a High Court, the decree shall be executed by such Court

in the same manner as if it had been passed by such Court in the exercise of its ordinary original

civil jurisdiction.

Application for Execution

10. Application for execution: Where the holder of a decree desires to execute it, he shall

apply to the Court which passed the decree to or the officer (if any) appointed in this behalf, or if

the decree has been sent under the provisions hereinbefore contained to another Court then to such

Court or to the proper officer thereof.

11. Oral application: (1) Where a decree is for the payment of money the Court may, on

he oral application of the decree-holder at the time of the passing of the decree, order immediate

execution thereof by the arrest of the judgment-debtor prior to the preparation of a warrant if he is

within the precincts of the Court.

403

(2) Written application: Save as otherwise provided by sub-rule (1), every application for

the execution of a decree shall be in writing, signed and verified by the applicant or by some other

person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall

contain in a tabular form the following particulars, namely -

(a) The number of the suit;

(b) The names of the parties;

(c) The date of the decree;

(d) Whether any appeal has been preferred from the decree;

(e) Whether any, and (if any), what payment or other adjustment of the matter

in controversy has been made between the parties subsequently to the

decree;

(f) Whether any, and (if any) what, previous applications have been made for

the execution of the decree, the dates of such applications and their results;

(g) the amount with interest (if any) due upon the decree, or other relief granted

thereby, together with particulars of any cross-decree, whether passed

before or after the date of the decree sought to be executed;

(h) The amount of the costs (if any) awarded;

(i) The name of the person against whom execution of the decree is sought;

and

(j) the mode in which the assistance of the Court is required, whether -

i) by the delivery of any property specifically decreed;

ii) by the attachment and sale, or by the sale without attachment, of any property;

iii) by the arrest and detention in prison of any person;

iv) by the appointment of a receiver;

v) otherwise as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule (2) may require the applicant

to produce a certified copy of the decree.

12. Application for attachment of movable property not in judgment debtor`s

possession: Where an application is made for the attachment of any movable property belonging

to a judgment-debtor but not in his possession, the decree- holder shall annex to the application an

inventory of the property to be attached, containing a reasonably accurate description of the same.

13. Application for attachment of immovable property to contain particulars: Where

an application is made for the attachment of any immovable property belonging to a judgment-

debtor, it shall contain at the foot-

(a) a description of such property sufficient to identify the same and, in case such

property can be identified by boundaries or numbers in a record of settlement or survey, a

specification of such boundaries or numbers; and

(b) a specification of the judgment-debtor's share or interest in such property to the

best of the belief of the applicant, and so far as he has been able to ascertain the same.

404

14. Power to require certified extract from Collector`s register in certain cases: Where

an application is made for the attachment of any land which is registered in the office of the

Collector, the Court may require the applicant to produce a certified extract from the register of

such office, specifying the persons registered as proprietors of, or as possessing any transferable

interest in the land or its revenue, or as liable to pay revenue for the land, and the shares of the

registered proprietors.

15. Application for execution by joint decree holder-(1) Where a decree has been passed

jointly in favour of more persons than one, any one or more of such persons may, unless the decree

imposes any condition to the contrary, apply for the execution of the whole decree for the benefit

of them all, or, where any of them has dies, for the benefit of the survivors and the legal

representatives of the deceased.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an

application made under this rule, it shall make such order as it deems necessary for protecting the

interest of the persons who have not joined in the application.

16. Application for execution by transferee of decree: Where a decree or, if a decree has

been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree

is transferred by assignment in writing or by operation of law, the transferee may apply for

execution of the decree to the Court which passed it; and the decree may be executed in the same

manner and subject to the same conditions as if the application were made by such decree-holder;

Provided that, where the decree, or such interest as aforesaid, has been transferred by

assignment, notice of such application shall be given to the transferor and the judgment-debtor,

and the decree shall not be executed until the Court has heard their objections (if any) to its

execution;

Provided also that, where a decree for the payment of money against two or more persons

has been transferred to one of them, it shall not be executed against the others.

17. Procedure on receiving application for execution of decree:- (1) On receiving an

application for the execution of a decree as provided by rule 11, sub-rule(2), the Court shall

ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have

been complied with; and if they have not been complied with, the Court may reject the application,

or may allow the defect to be remedied then and there or within a time to be fixed by it.

(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed

to have been an application in accordance with law and presented on the date when it was first

presented.

(3)Every amendment made under this rule shall be signed or initialed by the Judge.

(4) When the application is admitted, the Court shall enter in the proper register a not of

the application and the date on which it was made, and shall, subject to the provisions hereinafter

contained, order execution of the decree according to the nature of the application;

405

Provided that, in the case of decree for the payment of money, the value of the property

attached shall, as nearly as may be, correspond with the amount due under the decree.

18. Execution in case of cross-decrees: - (1) Where applications are made to a Court for

the execution of cross-decrees in separate suits for the payment of two sums of money passed

between the same parties and capable of execution at the same time such Court, then -

(a) If the two sums are equal, satisfaction shall be entered upon both decrees; and

(b) if the two sums are unequal, execution may be taken out only by the holder of the

decree for the larger sum and for so much only as remains after deducting the smaller sum,

and satisfaction for the smaller sum shall be entered on the decree for the larger sum as

well as satisfaction of the decree for the smaller sum.

(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees

and as well in respect of judgment-debts due by the original assignor as in respect of judgment-

debts due by the assignee himself.

(3) This rule shall not be deemed to apply unless -

a) The decree-holder in one of the suits in which the decrees have been made is the

judgment-debtor in the other and each party fills the same character in both suits; and

b) The sums due under the decree are definite.

(4) The holder of a decree passed against several persons jointly and severally may treat it

as a cross-decree in relation to a decree passed against him singly in favour of one or more of such

persons.

Illustrations

(a) A holds a decree against B for Rs1,000. B holds a decree against A for the payment of

Rs.1000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-

decree under this rule.

(b) A and B, co-plaintiffs, obtain a decree for Rs.1,000 against C, and C obtains a decree

for kRs.1,000 against B. C cannot treat his decree as a cross-decree under this rule.

406

(c) A, obtains a decree against B for Rs.1,000. C who is a trustee for B, obtains a decree

on behalf of B against A for Rs.1, 000. B cannot treat C's decree as a cross-decree under this rule.

(d) A, B, C, D and E are jointly and severely liable for Rs.1, 000 under a decree obtained

by F. A obtains a decree for Rs.100 against F singly and applies for execution to the Court in which

the joint-decree is being executed. F may treat his joint-decree as a cross-decree under this rule.

19. Execution in case of cross-claims under same decree: Where application is made to

a Court for the execution of a decree under which two parties are entitled to recover sums of money

from each other, then, -

(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b) if the two sums are unequal, execution may be taken out only by the party entitled to

the larger sum and for so much only as remains after deducting the smaller sum, and

satisfaction for the smaller sum shall be entered upon the decree.

20. Cross-decrees and cross-claims in mortgage suits: The provisions contained in rules

18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge.

21. Simultaneous execution: The Court may, in its discretion, refuse execution at the same

time against the person and property of the judgment-debtor.

22. Notice to show cause against execution in certain cases: - (1) Where an application

for execution is made -

a) more than one year after the date of the decree, or

b) against the legal representative of a party to the decree, 1[or where an application is made

for execution of a decree filed under the provisions of section 44-A the Court executing

the decree shall issue a notice to the person against whom execution is applied for requiring

him to show cause, on a date to be fixed, why the decree should not be executed against

him:

Provided that no such notice shall be necessary in consequence of more than one year

having elapsed between the date of the decree and the application for execution if the application

is made within one year from the date of the last order against the party against whom execution

is applied for, made on any previous application for execution, or in consequence of the application

being made against the legal representative of the judgment-debtor, if upon a previous application

for execution against the same person the Court has ordered execution to issue against him:

1 Ins. by the Code of Civil Procedure (Amdt.) Act, 1937 (8 of 1937), Section 3.

407

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing

any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons

to be recorded, it considers that the issue of such notice would cause unreasonable delay or would

defeat the ends of justice.

23. Procedure after issue of notice: (1) Where the person to whom notice is issued under

the last preceding rule does not appear or does not show cause to the satisfaction of the Court why

the decree should not be executed, the Court shall order the decree to be executed.

(2) Where such person offers any objection to the execution of the decree, the Court shall

consider such objection and make such order as it thinks fit.

1[Objection to Execution

23-A. Deposit of decretal amount, etc: An objection by the judgment-debtor to the

execution of a decree shall not be considered by the Court unless -

a) in case of a decree for the payment of money, he either deposits the decretal amount

in Court or furnishes security for its payment; and

b) in the case of any other decree, he furnishes security for the due performance of the

decree]

Process for Execution

24. Process of execution: (1) When the preliminary measures (if any) required by the

foregoing rule have been taken, the Court shall, unless it sees cause to the contrary, issue its process

for the execution of the decree.

(2) Every such process shall bear date the day on which it is issued, and shall be signed by

the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal

of the Court and delivered to the proper officer to be executed.

(3) In every such process a day shall be specified on or before which it shall be executed.

25. Endorsement on process: (1) The officer entrusted with the execution of the process

shall endorse thereon the day on, and the manner in, which it was executed, and, if the latest day

specified in the process for the return thereof has been exceeded, the reason of the delay, or, if it

was not executed, the reason why it was not executed, and shall return the process with such

endorsement to the Court.

1 Rule 23A and heading ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

408

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the

Court shall examine him touching his alleged inability, and, if it thinks fit, summon and examine

witnesses as to such inability, and shall record the result.

Stay of Execution

26.When Court may stay execution: (1) The Court to which a decree has been sent for

execution shall, upon sufficient cause being shown, stay the execution of such decree for a

reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was

passed, or to any Court having appellate jurisdiction in respect of the decree or, the execution

thereof, for an order to stay execution, or for any other order relating to the decree or execution

which might have been made by such Court of first instance or appellate Court if execution had

been issued thereby, or if application for execution had been made thereto.

(2) Where the property or person of the judgment-debtor has been seized under an

execution the Court which issued the execution may order the restitution of such property or the

discharge of such person pending the result of the application.

1* * * * * *

27. Liability of judgment debt or discharge: No order of restitution or discharge under

rule 26 shall prevent the property or person of a judgment-debtor from being retaken in execution

of the decree sent for execution.

28. Order of Court which passed decree or of appellate Court to be binding upon

Court applied to: Any order of the Court by which the decree was passed, or of such Court of

appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the Court to

which the decree was sent for execution.

29. Stay of execution pending suit between decree holder and judgment-debtor: Where a suit is pending in any Court against the holder of a decree of such Court, on the part of

the person against whom the decree was passed, the Court may, on such terms as to security or

otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.

Mode of Execution

30. Decree of payment of money: Every decree for the payment of money, including a

decree for the payment of money as the alternative to some other relief, may be executed by the

detention in … prison of the judgment-debtor, or by the attachment and sale of his property, or by

the both.

31. Decree for specific movable property: (1) Where the decree is for any specific

movable, or for any share in a specific movable, it may be executed by the seizure, if practicable,

of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or

1 Sub-rule (3) omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

409

to such person as he appoints to receive delivery on his behalf, or by the detention in [….] prison

of the judgment-debtor, or by the attachment of his property, or by both.

(2) Where any attachment under sub-rule (1) has remained in force for six months if the

judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached

property sold, such property may be sold, and out of the proceeds the Court may award to the

decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative

to delivery of movable property, such amount, and, in other cases, such compensation as it thinks

fit, and shall pay the balance (if any), to the judgment-debtor on his application.

(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the

same which he is bound to pay, or where, at the end of six months from the date of the attachment,

no application to have the property sold has been made, or if made, has been refused, the

attachment shall cease.

32. Decree for specific performance for restitution of conjugal rights, or for an

injuction: (1) Where the party against whom a decree for the specific performance of a contract,

or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity

of obeying the decree and has willfully failed to obey it the decree may be enforced 1[in the case

of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a

decree for the specific performance of a contract or for an injunction by his detention in 2[the evil]

prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction

has been passed is a corporation, the decree may be enforced by the attachment of the property of

the corporation, or with the leave of the Court, by the detention in 3[the civil] prison of the directors

or other principal officers thereof or by both attachment and detention.

(3)Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one

year if the judgment debtor has not obeyed the decree and the decree-holder has applied to have

the attached property sold, such property may be sold; and out of the proceeds the Court may award

to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any), to the

judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the

same which he is bound to pay, or where, at the end of one year from the date of the attachment,

no application to have the property sold has been made, or if made has been refused, the attachment

shall cease.

(5) Where decree for the specific performance of a contract or for an injunction has not

been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct

that the act required to be done may be done so far as practicable by the decree-holder or some

1 Ins. by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923), s.2. 2 Omitted by Act. XIV of 1994, s.11. 3 Omitted by Act. XIV of 1994, s. 11.

410

other person appointed by the Court,. At the cost of the judgment-debtor, and upon the act being

done the expenses incurred may be ascertained in such manner as the Court may direct and may

be recovered as if they were included in the decree.

Illustrations

A, a person of little substance, erects a building which renders uninhabitable a family

mansion belonging to B. A in spite of his detention in prison and the attachment of his property,

declines to obey a decree obtained against him by B and directing him to remove the building. The

Court is of opinion that no sum realizable by the sale of A's property would adequately compensate

B for the depreciation in the value of his mansion. B may apply to the Court to remove the building

and may recover the cost of such removal from A in the execution-proceedings.

33. (1) Discretion of Court in executing decrees for restitution of conjugal rights: (1)

Notwithstanding anything in rule 32, the Court either at the time of passing a decree1[ against a

husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree 2[ shall be executed in the manner provided in this rule].

(2) Where the Court has made an order under sub-rule (1)3***, it may order that, in the

event of the decree not being obeyed within such period as may be fixed in this behalf, the

judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if

it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder

such periodical payments.

(3)The Court may from time to time vary or modify any order made under sub-rule (2) for

the periodical payment of money, either by altering the times of payment or by increasing or

diminishing the amount, or may temporarily suspend the same as to the whole or any part of the

money so ordered to be paid, and again revive the same, either wholly or in part as it may think

just.

(4) Any money ordered to be paid under this rule may be recovered as though it were

payable under a decree for the payment of money.

34. Decree for execution of document or endorsement of negotiable instruments: (1)

Where a decree is for the execution of a document or for the endorsement of a negotiable

instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may

prepare a draft of the document or endorsement in accordance with the terms of the decree and

deliver the same to the Court.

1 Ins. by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923). 2 Subs. ibid., for “shall not be executed by deterntion in prision”. 3 The words “and the decree-holder is the wife” omitted, by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923).

411

(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together

with a notice requiring his objections (if any) to be made within such time as the Court fixes in

this behalf.

(3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within

such time, and the Court shall make such order approving or altering the draft, as it thinks fit.

(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if

any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law

for the time being in force; and the judge or such officer as may be appointed in this behalf shall

execute the document so delivered.

(5) The execution of a document or the endorsement of a negotiable instrument under this

rule may be in the following form, namely:-

"C.D., Judge of the Court of

(or as the case may be), for A. B., in a suit by E.F. against A.B." and shall have the same

effect as the execution of the document or the endorsement of the negotiable instrument by the

party ordered to execute or endorse the same.

(6) The Court, or such officer as it may appoint in this behalf, shall cause the document to

be registered if its registration is required by law for the time being in force or the decree-holder

desires to have it registered, and may make such order as it thinks fit as to the payment of the

expenses of the registration.

35. Decree for immovable property: (1) Where a decree is for the delivery of any

immovable property, possession thereof shall be delivered to the party to whom it has been

adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary,

by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall

be delivered by affixing a copy of the warrant in some conspicuous place on the property and

proclaiming by beat of drum, or other customary mode, at some convenient place, the substance

of the decree.

(3) Where possession of any building or enclosure is to be delivered and the person in

possession, being bound by the decree, does no afford free access, the Court, through its officers,

may after giving reasonable warning and facility to any woman not appearing in public according

to the customs of the country to withdraw, remove or open any lock or bolt or break open any door

or do any other act necessary for putting the decree-holder in possession.

36. Decree for delivery of immovable property when in occupancy of tenant: Where a

decree is for the delivery of any immovable property in the occupancy of a tenant or other person

412

entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court

shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the

property, and proclaiming to the occupant by beat of drum or other customary mode, at some

convenient place, the substance of the decree in regard to the property.

413

Arrest and Detention in Civil Prison

37. Discretionary power to permit judgment-debtor to show cause against detention

in prison: (1) Notwithstanding anything in these rules, where an application is for the execution

of a decree for the payment of money by the arrest and detention in [……] prison of a judgment-

debtor who is liable to be arrested in pursuance of the application, the Court 1[shall], instead of

issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day

to be specified in the notice and show cause why he should not be [detained in] prison.

2[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or

otherwise, that with the object or effect of delaying the execution of the decree, the judgment-

debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.]

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-

holder so requires, issue a warrant for the arrest of the judgment-debtor.

38. Warrant for arrest to direct judgment-debtor to be brought up: Every warrant for

the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him

before the Court with all convenient speed, unless the amount which he has been ordered to pay,

together with the interest thereon and the cost (if any) to which he is liable, be sooner paid.

3* * * * * *

4[40. Proceedings on appearance of judgment-debtor in obedience to notice or after

arrest:

(1) When a judgment-debtor appears before the Court in obedience to a notice issued under

rule 37, or is brought before the Court after being arrested in execution of a decree for the payment

of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be

produced by him in support of his application for execution, and shall then give the judgment-

debtor an opportunity of showing cause why he should not be [detained in] prison.

(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion,

order the judgment-debtor to be detained in the custody of an officer of the Court or release him

on his furnishing security to the satisfaction of the Court for his appearance when required.

(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the

provisions of section 51 and to the other provisions of this Code, make an order for the detention

of the judgment-debtor in [….] prison and shall in that event cause him to be arrested if he is not

already under arrest:

1 Subs. by the Code of Civil Procedure (Amdt.) Act, 1936 (21 of 1936), s.3 for “may”. 2 Proviso ins. ibid. 3 Subs omitted by Act XIV of 1994, s.11 4 Subs. by the Code of Civil Procedure (Amdt.) Act, 1936 (21 of 1936), s.4, for the original rule 40.

414

Provided that in order to give the judgment-debtor an opportunity of satisfying the decree,

the Court may, before making the order of detention, leave the judgment-debtor in the custody of

an officer of the Court for a specified period not exceeding fifteen days or release him on his

furnishing security to the satisfaction of the Court for his appearance at the expiration of the

specified period if the decree be not sooner satisfied.

(4) A judgment-debtor released under this rule may be re-arrested.

(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow

the application and, if the judgment-debtor is under arrest, direct his release.

Attachment of Property

41. Examination of judgment-debtor as to his property: Where a decree is for the

payment of money the decree-holder may apply to the Court for an order that -

(a) the judgment-debtor, or

(b) in the case of a corporation, any officer thereof, or

(c) any other person,

be orally examined as to whether any or what debts are owing to the judgment-debtor and

whether the judgment-debtor has any and what other property or means of satisfying the decree;

and the Court may make an order for the attendance and examination of such judgment-debtor or

officer or other person, and for the production of any books or documents.

42. Attachment in case of decree for rent or mense profits or other matter, amount of

which to be subsequently determined: Where a decree directs an inquiry as to rent or mesne

profits or any other matter, the property of the judgment-debtor may, before the amount due from

him has been ascertained, be attached, as in the case of an ordinary decree for the payment of

money.

43. Attachment of movable property, other than agricultural produce, in the

possession of the judgment-debtor: Where the property to be attached is movable property, other

than agricultural produce, in the possession of the judgment-debtor the attachment shall be made

by actual seizure, and the attaching officer shall keep the property in his own custody or in the

custody of one of his subordinates, and shall be responsible for the due custody thereof:

Provided that, when the property seized is subject to speedy and natural decay, or when the

expense of keeping in custody is likely to exceed its value, the attaching officer may sell it at once.

44. Attachment of agricultural produce Where the property to be attached is agricultural

produce, the attachment shall be made affixing a copy of the warrant of attachment,-

a) Where such produce is a growing crop, on the land on which such crop has grown or

415

b) Where such produce has been cut or gathered, on the threshing-floor or place for treading

out grain or the like or fodder-stack on or in which it is deposited,

and another copy on the outer door or on some other conspicuous part of the house in which

the judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some

other conspicuous part of the house in which he carries on business or personally works for gain

or in which he is known to have last resided or carried on business or personally worked for gain;

and the produce shall thereupon be deemed to have passed into the possession of the Court.

45. Provisions a to agricultural produce under attachment: (1) Where agricultural

produce is attached, the Court shall make such arrangements for the custody thereof as it may

deem sufficient and, for the purpose of enabling the Court to make such arrangements every

application for the attachment of a growing crop shall specify the time at which it is likely to be

fit to be cut or gathered.

(2) Subject to such conditions as may be imposed by the Court in this behalf either in the

order of attachment or in any subsequent order, the judgment-debtor may tend, cut, gather and

store the produce and do any other act necessary for maturing or preserving it; and if the judgment-

debtor fails to do all or any of such acts, the decree-holder may, with the permission of the Court

and subject to the like conditions, do all or any of them either by himself or by any person

appointed by him in this behalf, and the costs incurred by the decree-holder shall be recoverable

from the judgment-debtor as if they were included in, or formed part of, the decree.

(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to

be under attachment or to require re-attachment merely because it has been severed from the soil.

(4) Where an order for the attachment of a growing crop has been made a considerable

time before the crop is likely to be fit to be cut or gathered, the Court may suspend the execution

of the order for such time as it thinks fit, and may, in its discretion, make a further order prohibiting

the removal of the crop pending the execution of the order of attachment.

(5) A growing crop which from its nature does not admit of being stored shall not be

attached under this rule at any time less than twenty days before the time at which it is likely to be

fit to be cut or gathered.

46. Attachment of debt share and other property not in possession of judgment

debtor: (1) In the case of -

a) a debt not secured by a negotiable instrument,

b) a share in the capital of a corporation,

c) other movable property not in the possession of the judgment-debtor, except property

deposited in, or in the custody of, any Court,

the attachment shall be made by a written order prohibiting, -

416

i). in the case of debt the creditor from recovering the debt and the debtor from making

payment thereof until the further order of the Court;

ii). in the case of the share, the person in whose name the share may be standing from

transferring the same or receiving any dividend thereon;

iii). in the case of the other movable property except as aforesaid, the person in possession

of the same from giving it over to the judgment-debtor.

(2) A copy of such order shall be affixed on some conspicuous part of the Court-house and

another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the

proper officer of the corporation, and, in the case of the other movable property (except as

aforesaid), to the person in possession of the same.

(3) A debtor prohibited under clause (I) of sub-rule (1) may pay the amount of his debt into

Court, and such payment shall discharge him as effectually as payment to the party entitled to

receive the same.

47. Attachment of share in moveables: Where the property to be attached consists of the

share or interest of the judgment-debtor in movable property belonging to him and another as co-

owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from

transferring the share or interest or charging it in any way.

48 Attachment to salary or allowances of public officer or servant of railway company

or local authority: -(1) Where the property to be attached is the salary or allowance of a 1[servant

of the State] or a servant of a railway company or local authority, the Court, whether the judgment-

debtor or the disbursing officer is or is not within the local limits of the Court's jurisdiction, may

order that the amount shall, subject to the provisions of section 60, be withheld from such salary

or allowances either in one payment or by monthly installments as Court may direct; and upon

notice of the order to such officer as 2[the appropriate Government may by notification in the

official Gazette appoint 3[in this behalf,-

(a) where such salary or allowances are to be disbursed within the local limits to which this

Code for the time being extends, the officer or other person whose duty I is to disburse the

same shall withhold and remit to the Court the amount due under the order, or the monthly

installments, as the case may be;

(b)

where such salary or allowances are to be disbursed beyond the said limits, the officer or other

person within those limits whose duty it is to instruct the disbursing authority regarding the amount

of the salary or allowances to be disbursed shall remit to the Court the amount due under the order,

or the monthly installments, as the case may be, and shall direct the disbursing authority to reduce

the aggregate of the amounts from time to time be disbursed by the aggregate of the amounts from

time to time remitted to the Court.

1 The original words “public officer” were first subs. by the Code of Civil Procedure (Amdt.), Act, 1943, (5 of 1943) s.3 and then amended by A.O. , 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), to read as above. 2 Subs. by the Repealing and Amending Act, 1942 (25 of 1942), s. 3 and Second Sch., for “the Central Governemnt or the Provincial Governemnt

may by notification in their official Gazette” which had been subs. by A.O. 1937, for “the Govt. may by notification in the Gazette of India or in the local official Gazette, as the case may be.” 3 Subs. by the Code of Civil Procedure (Amdt.) Act, 1939 (26 of 1939), s.2, for certain words.

417

(2) Where the attachable proportion of such salary or allowances is already being withheld

and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer

appointed by 1[the appropriate Government in this behalf shall forthwith return the subsequent

order to the Court issuing it with a full statement of all the particulars of the existing attachment.

(3) Every order made under this rule, unless it is returned in accordance with the provisions

of sub-rule (2), shall, without further notice or other process, bind 2[the appropriate Government]

or the railway company or local authority, as the case may be, while the judgment-debtor is within

the local limits to which this Code for the time being extends and while he is beyond hose limits

if he is in receipt of any salary or allowances payable out of 3[the revenues of the 4[Federal

Government] or a Provincial Government or the funds of a railway company carrying on business

in any part of 5[Pakistan] or local authority in Pakistan; and the appropriate Government or the

railway company or local authority, as the case may be, shall be liable for any sum paid in

contravention of this rule.

6[Explanation - In this rule "appropriate Government" means -

i. as respects any 7[person] in the service of the Federal Government, or any servant 8*

* * of a "railway or of a cantonment authority or of the port authority of a major port,

the Central Government;

9* * * * * *

iii. as respects any other 10[Servant of the Stat]e or a servant of any 11*railway or local

authority the Provincial Government

1 Subs. by Act 25 of 1942, for “the Central or the Provincial Govt.., as she case mayb e” which were subs. by A.O., 1937, for “the Gvot.”. 2 Subs. by the Repealing and Amending Act, 1942 (25 of 1942), for “the Central Government or the Provincial Government” which was subs. by A.O., 1937, for “the Governemnt”

3 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd) March 1956) for “His Majesty’s (Pakistan Revenues)”. The words in chtches were subs. by A.O., 1949, for “Indian revenues”.

4 Subs. by F.A.O., 1975, Art. 2 and Table,f or “Central Government”. 5 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch., (with effect from the 14th October, 1955), for the

Provinces and the Capital of the Federataion which had been subs. by A.O., 1949, for “British India”. 6 Explanation added by Act 25 of 1942, s.3 and Second Sch.

7 Subs. by the Code of Civil Procedure (Amdt.) Act, 1943 (5 of 1973) s.3, for “public officer”.

8 The words “of a* Railway or” omitted by A.O., 1964, Art. 2 and Sch. The asterisk denotes the omittsion of “Federal” by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956).

9 Cl. (ii) omitted by A.O., 1949. 10 The original words “public officer” were first subs. by Act 5 of 1943, s.3 and then amended by A.O., 1961, Art 2 and Sch. (with effect from the

23rd March, 1956), to read above. 11 The word “other” omitted by A.O., 1964, Art. 2 and Sch.

418

49. Attachment of partnership property: -(1) Save as otherwise provided by this rule,

property belonging to a partnership shall not be attached or sold in execution of a decree other than

a decree passed against the firm or against the partners in the firm as such.

(2) The Court may, on the application of the holder of a decree against a partner, make an

order charging the interest of such partner in the partnership property and profits with payment of

the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver

of the share of such partner in the profits (whether already declared or accruing) and of any other

money which may be coming to him in respect of the partnership, and direct accounts and inquiries

and make an order for the sale of such interest or other orders as might have been directed or made

if a charge had been made in favour of the decree-holder by such partner, or as the circumstances

of the case may require.

(3) The other partner or partners shall be at liberty at any time to redeem the interest

charged or, in the case of a sale being directed, to purchase the same.

(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor

and on his partners or such of them as are within 1[Pakistan].

(5)Every application made by any partner of the judgment-debtor under sub-rule (3) shall

be served on the decree-holder and on the judgment-debtor and on such of the other partners as do

not join in the application and as are within [Pakistan].

(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the

partners and all orders made on such applications shall be similarly served.

50. Execution of decrees against firm: (1) Where a decree has been passed against a firm

execution may be granted -

a) against any property of the partnership;

b) against any person who has appeared in his own name under rule 6 or rule 7 of

Order XXX or who has admitted on the pleadings that he is, or who has been

adjudged to be, a partner;

c) against any person who has been individually served as a partner with a summons

and has failed to appear:

Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the

provisions of section 247 of the Contract Act. 1972.

(2) Where the decree-holder claims to be entitled to cause the decree to be executed against

any person other than such a person as is referred to in sun-rule (1), clauses (b) and (c), as being a

partner in the firm he may apply to the Court which passed the decree for leave, and where the

1 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14 October, 1955), for “the

Province and Capital of the Federation” which had been subs. by A.O, 1949, for “British India”.

419

liability is not disputed, such Court may grant such leave, or where such liability, is disputed, may

order that the liability of such person be tried and determined in any manner in which any issue in

a suit may be tried and determined.

(3) Where the liability of any person has been tried and determined under sub-rule (2), the

order made thereon shall have the same force and be subject to the same conditions as to appeal or

otherwise as if it were a decree.

(4) Save as against any property of the partnership, a decree against a firm shall not release,

render liable or otherwise affect any partner therein unless he has been served with a summons to

appear and answer.

51. Attachment of negotiable instruments: Where the property is a negotiable instrument

not deposited in a Court, nor in the custody of a public officer, the attachment shall be made by

actual seizure, and the instrument shall be brought into Court and held subject to further orders of

the Court.

52. Attachment of property in custody of Court of public officer: Where the property

to be attached is in the custody of any Court or public officer, the attachment shall be made by a

notice to such court or officer, requesting that such property and any interest or dividend becoming

payable thereon, may be held subject to the further orders of the Court from which the notice is

issued:

Provided that, where such property is in the custody of a Court any question of title or

priority arising between the decree-holder and any other person, not being the judgment-debtor,

claiming to be interested in such property by virtue of any assignment, attachment or otherwise,

shall be determined by such Court.

53. Attachment of decrees:- (1) Where the property to be attached is a decree, either for

the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be

made, -

a) if the decrees were passed by the same Court, then by order of such Court, and

b) if the decree sought to be attached was passed by another Court, then by the issue to

such other Court of a notice by the Court which passed the decree sought to be executed

requesting such other Court to stay the execution of its decree unless and until -

(i). the Court which passed the decree sought to be executed cancels the notice, or

(ii). the holder of the decree sought to be executed or his judgment-debtor applies

to the Court receiving such notice to execute its own decree.

(2) Where a Court makes an order under clause (a) of sub-rule (1) or receives an application

under sub-head (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who

420

has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply

the net proceeds in satisfaction of the decree sought to be executed.

(3) The holder of a decree sought to be executed by the attachment of another decree of the

nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the

attached decree and to be entitled to execute such attached decree in any manner lawful for the

holder thereof.

(4) Where the property to be attached in the execution of a decree is a decree other than a

decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice by the

Court which passed the decree sought to be executed, to the holder of the decree sought to be

attached, prohibiting him from transferring or charging the same in any way; and where such

decree has been passed by any other Court, also by sending to such other Court also by sending to

such other Court a notice to abstain from executing the decree sought to be attached until such

notice is cancelled by the Court from which it was sent.

(5) The holder of a decree attached under this rule shall give the Court executing the decree

such information and aid as may reasonably be required.

(6)On the application of the holder of a decree sought to be executed by the attachment of

another decree, the Court making an order of attachment under this rule shall give notice of such

order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the

attached decree made by the judgment-debtor in contravention of such order after receipt of notice

thereof, either through the Court or otherwise, shall be recognized by any Court so long as the

attachment remains in force.

54. Attachment of immovable property: - (1) Where the property is immovable, the

attachment shall be made by an order prohibiting the judgment-debtor from transferring or

charging the property in any way, and all persons from making any benefit from such transfer or

charge.

(2) The order shall be proclaimed at some place on or adjacent to such a property by beat

of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part

of the property and then upon a conspicuous part of the Court-house, and also, where the property

is land paying revenue to the Government, in the office of the Collector of the district in which the

land is situate.

55. Removal of attachment after satisfaction of decree: Where-

a) the amount decreed with costs and all charges and expenses resulting from the

attachment of any property are paid into Court or,

b) satisfaction of the decree is otherwise made through the Court or certified to the

Court or

c) the decree is set aside or reversed,

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The attachment shall be deemed to be withdrawn, and, in the case of immovable property,

the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy

of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

56. Order for payment of coin or currency notes to party entitled under decree: Where

the property attached is current coin or currency notes, the court may at any time during the

continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy

the decree, be paid over to the party entitled under the decree to receive the same.

57. Determination of attachment: Where any property has been attached in execution of a

decree but by reason of the decree-holder's default the Court is unable to proceed further with the

application for execution, it shall either dismiss the application or for any sufficient reason adjourn

the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.

Investigation of Claims and Objections

58. Investigation of claims to and objections to attachment of attached property: - (1)

Where any claim is preferred to, or any objection is made to the attachment of, any property

attached in execution of a decree on the ground that such property is not liable to such attachment,

the Court shall proceed to investigate the claim or objection with the like power as regards the

examination of the claimant or objector, and in all other respects, as if he was a party to the suit:

1[Provided that no such investigation shall be made where it appears to the Court that the

claim or objection (whether made before or after the sale) has been designedly or unnecessarily

delayed, or was not made within a reasonable time or within one year of the date of the first

attachment of the said property in the execution of the said decree, whichever is earlier, unless the

claimant or objector -

a) proves title acquired in good faith and for consideration subsequent to the date of

the first attachment;

b) Proves that his predecessors-in-interest, whether their interest existed at the time of

such attachment or was acquired thereafter, fraudulently omitted to make a claim or

objection; and.

c) imp-leads all such predecessors-in-interest, as parties

(2) Postponement of sale: Where the property to which the claim or objection applies has

been advertised for sale, the Court ordering the sale may postpone it pending the investigation of

the claim or objection.

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the Original Proviso.

422

1[59. Evidence to be adduced by claimant: The claimant or objector must adduce

evidence to show that at the date of the attachment he had a title to, or right or interest in, the

property attached.

60. Release of property from attachment: Where upon the said investigation the Court

is satisfied that the claimant or objector had a title to, or right or interest in, the said property and

the said property was not, by reason of such title, right or interest, wholly or partly liable to

attachment, the Court shall make an order releasing the property, wholly, or as the case may be, to

such extent as it is not so liable, from attachment.

61. Continuance of attachment subject to claim of encumbrance: Where the Court is

satisfied that the property is subject to mortgage or charge in favour of some person and thinks fit

to continue the attachment, it may do so subject to such mortgage or charge.

62. Questions relating to rights. Etc, of claimant in attached property to be decided

by Court: All questions relating to the right title or interest of the claimant or objector in the

attached property shall be adjudicated upon and determined by the Court and no separate sit shall

lie to establish such title, right or interest.

63. Savings of suits to establish right to attached property. Omitted by the Law Reforms

Ordinance, 1972 (XII of 1972), s.2 and Sch

Sale Generally

64. Power to order property attached to be sold and proceeds to be paid to person

entitled: Any Court executing a decree may order that any property attached by it and liable to

sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that

the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under

the decree to receive the same.

65. Sales by whom conducted and how made: Sale as otherwise prescribed, every sale

in execution of a decree shall be conducted by an officer of the Court or by such other person as

the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.

66. Proclamation of sales by public auction:- (1) Where any property is ordered to be

sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended

sale to be made in the language of such Court.

(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-

debtor and shall state the time and place of sale, and specify as fairly and accurately as possible -

a) The property to be sold;

1 Sbus. Ibid. for the original rules 59-62.

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b) The revenue assessed upon the estate or part of the estate, where the property to be sold

is an interest in an estate or in part of an estate paying revenue to the Government;

c) Any in-cumbrance to which the property is liable;

d) The amount for the recovery of which the sale is ordered; and

e) Every other thing which the Court considers material for a purchaser to know in order

to judge of the nature and value of the property.

(3) Every application for an order for sale under this rule shall be accompanied by a

statement signed and verified in the manner hereinbefore prescribed for the signing and

verification of pleadings and containing, so far as they are known to or can be ascertained by the

person making the verification, the matters required by sub-rule (2) to be specified in the

proclamation.

(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court

may summon any person whom it thinks necessary to summon and may examine him in respect

to any such matters and require him to produce any document in his possession or power relating

thereto.

67. Mode of making proclamation: - (1) Every proclamation shall be made and published,

as nearly as may be, in the manner prescribed by rule 54, sub-rule (2).

(2) Where the Court so directs, such proclamation shall also be published in the 1[official

Gazette] or in a local newspaper, or in both, and the costs of such publication shall be deemed to

be costs of the sale.

(3) Where property is divided into lots for the purpose of being sold separately, it shall not

be necessary to make a separate proclamation for each lot unless proper notice of the sale cannot,

in the opinion of the Court, otherwise be given.

68. Time of sale: Save in the case of property of the kind described in the proviso to rule

34, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until

after the expiration of at least thirty days in the case of immovable property, and of at least fifteen

days in the case of movable property, calculated from the date on which the copy of the

proclamation has been affixed on the Court-house of the Judge ordering the sale.

69. Adjournment or stoppage of sale: - (1) The Court may, in its discretion, adjourn any

sale hereunder to a specified day and hour, and the officer conducting any such sale may in his

discretion adjourn the sale, recording his reasons for such adjournment:

1 Subs. by A.O., 1937, for “local official Gazette”.

424

Provided hat, where the sale is made in, or within the precincts of, the Court-house, no such

adjournment shall be made without the leave of the Court.

(2) Where a sale is adjourned under sub-rule(1) for a longer period than seven days a fresh

proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs

(including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to

his satisfaction that the amount of such debt and costs has been paid into the Court which ordered

the same.

70. Saving of certain sales: Nothing in rules 66 to 69 shall be deemed to apply to any case

in which the execution of a decree has been transferred to the Collector.

71. Defaulting purchaser answerable for loss on re-sale: Any deficiency of price which

may happen on a re-sale by reason of the purchaser's default and all expenses attending such re-

sale, shall be certified to the Court or to the Collector or subordinate of the Collector, as the case

may be, by the officer or other person holding the sale, and shall at the instance of either the decree-

holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions

relating to the execution of a decree for the payment of money.

72. Decree holder not to bid for or buy property without permission:- (1) No holder of

a decree in execution of which property is sold shall, without the express permission of the Court,

bid for or purchase the property.

(2) Where a decree-holder purchases with such permission, the purchase-money and the

amount due on the decree may, subject to the provisions of section 73, be set-off against one

another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in

part accordingly.

(3) Where a decree-holder purchases, by himself or through another person, without such

permission the Court may, if it thinks fit, on the application of the judgment-debtor or any other

person whose interests are affected by the sale, by order set aside the sale; and the costs of such

application and order, and any deficiency of price which may happen on the re-sale and all

expenses attending it, shall be paid by the decree-holder.

73. Restrictions on binding or purchase by officer: No officer or other person having

any duty to perform in connection with any sale shall, either directly or indirectly, bid for,. acquire

or attempt to acquire any interest in the property sold.

Sale of Movable Property

74.Sale of agricultural products:- (1) Where the property to be sold is agricultural

produce the sale shall be held, -

425

a) If such produce is a growing crop, on or near the land on which such crop has grown,

or

b) If such produce has been cut or gathered, at or near the threshing-floor or place for

treading out grain or the like or fodder-stack on or in which it is deposited:

Provided that the Court may direct the sale to be held at the nearest place of public resort,

if it is of opinion that the produce is thereby likely to sell to greater advantage.

(2) Where on the produce being put up for sale, -

a) A fair price, in the estimation of the person holding the sale, is not offered for it,

and

b) The owner of the produce or a person authorized to act in his behalf applies to

have the sale postponed till the next day or, if a market is held at the place of sale,

the next market-day,

The sale shall be postponed accordingly and shall be then completed, whatever price maybe

offered for the produce.

75. Special provisions relating to growing crops:- (1) Where the property to be sold is a

growing crop and the crop from its nature admits of being stored but has not yet been stored, the

day of the sale shall be so fixed as to admit of its being made ready for storing before the arrival

of such day, and the sale shall not be held until the crop has been cut or gathered and is ready for

storing.

(2) Where the crop from its nature does not admit of being stored, it may be sold before it

is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is

necessary for the purpose of tending and cutting and or gathering it.

76. Negotiable instruments and shares in corporations: Where the property to be sold

is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale

to be made by public auction, authorize the sale of such instrument or share through a broker.

77. Sale by public auction:- (1) Where movable property is sold by public auction the

price of each lot shall be paid at the time of sale or as soon after as the officer or other person

holding the sale directs, and in default of payment the property shall forthwith be re-sold.

(2) On payment of the purchase-money the officer or other person holding the sale shall

grant a receipt for the same, and the sale shall become absolute.

(3) Where the movable property to be sold is a share in goods belonging to the judgment-

debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid

426

the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the

co-owner.

78. Irregularity not to vitate sale, but any person injured may sue: No irregularity in

publishing or conducting he sale of movable property shall vitiate the sale; but any person

sustaining any injury by reason of such irregularity at the hand of any other person may institute a

suit against him for compensation or (if such other person is the purchaser) for the recovery of the

specific property and for compensation in default of such recovery.

79. Delivery of moveable property debts, and shares:- (1) Where the property sold is

movable property of which actual seizure has been made, it shall be delivered to the purchaser.

(2) Where the property sold is movable property in the possession of some person other

than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to

the person in possession prohibiting him from delivering possession of the property to any person

except the purchaser.

(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share

in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the

creditor from receiving the debt or any interest thereon, and the debtor from making payment

thereof to any person except the purchaser, or prohibiting the person in whose name the share may

be standing from making any transfer of the share to any person except the purchaser, or receiving

payment of any dividend or interest thereon, and the manager, secretary or other proper officer of

the corporation from permitting any such transfer or making any such payment to any person

except the purchaser.

80. Transfer of negotiable instruments and shares:- (1) Where the execution of a

document or the endorsement of the party in whose name a negotiable instrument or a share in a

corporation is standing is required to transfer such negotiable instrument or share, the Judge or

such officer as he may appoint in this behalf may execute such document or make such

endorsement as may be necessary, and such execution or endorsement shall have the same effect

as an execution or endorsement by the party.

(2) Such execution or endorsement may be in the following form namely:-

AB by CD Judge of the Court of (or as the case may be) in a suit by EF against AB.

(3) Until the transfer of such negotiable instrument or share, the Court may by order appoint

some person to receive any interest or divided due thereon and to sign a receipt for the same; and

any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed

by the party himself.

81. Vesting order in case of other property: In case of any movable property not

hereinbefore provided for, the Court may make an order vesting such property in the purchaser or

as he may direct; and such property shall vest accordingly.

427

428

Sale of Immovable Property

82. What Court may order sales: Sales of immovable property in execution of decrees

may be ordered by any Court other than a Court of Small Causes.

83. Postponement of sale to enable judgment debtor to raise amount of decree:- (1)

Where an order for the sale of immovable property has been made, if the judgment-debtor can

satisfy the Court that there is reason to believe that the amount of the decree may be raised by the

mortgage or lease or private sale of such property, or some part thereof, or of any other immovable

property of the judgement-debtor the Court may on his application postpone the sale of the

property comprised in the order for sale on such terms and for such period as it thinks proper, to

enable him to raise the amount.

(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him

within a period to be mentioned therein, and notwithstanding anything contained in section 64 to

make the proposed mortgage lease or sale:

Provided that all monies payable under such mortgage, lease or sale shall be paid not to the

judgment-debtor, but save in so far as a decree-holder is entitled to set-off such money under the

provisions of rule 72 into Court:

Provided also that no mortgage leases or sale under this rule shall become absolute until it

has been confirmed by the Court.

(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in

execution of a decree for sale in enforcement of a mortgage of or charge on such property.

84. Deposit by purchaser and resale on default:- (1) On every sale of immovable

property the person declared to be the purchaser shall pay immediately after such declaration a

deposit ot twenty-five per cent. On the amount of his purchase money to the officer or other person

conducting the sale and in default of such deposit the property shall forthwith be resold.

(2) Where the decree holder is the purchaser and is entitled to set off the purchase-money

under rule 12, the Court may dispense with the requirements of this rule.

85. Time for payment in full of purchase maoney: The full amount of purchase-money

payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from

the sale of the property:

Provided that in calculating the amount to be so paid into Court, the purchaser shall have

the advantage of any set-off to which he may be entitled under rule 72.

86. Procedure in default of payment: In default of payment within the period mentioned

in the last preceding rule the deposit may if the court thinks fit after defraying the expenses of the

sale, be forfeited to the Government and the property shall be re-sold and the defaulting purchaser

429

shall forfeit all claim to the property or to any part of the sum for which it may subsequently be

sold.

87. Notification on re-sale: Every re-sale of immovable property in default of payment of

the purchase-money within the period allowed for such payment shall be made after the issue of a

fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

88. Bid of co-sharer to have prefernece: Where the property sold is a share of undivided

immovable property and two or more persons of whom one is a co-sharer, respectively bid the

same sum for such property or for any lot the bid shall be deemed to be the bid of the co-sharer.

89. Application to set aside on sale on deposit: - (1) Where immovable property has been

sold in execution of a decree, any person either owning such property or holding an interest therein

by virtue of a title acquired before such sale may apply to have the sale set aside on his depositing

in Court, -

a) for payment to the purchaser a sum equal to five per cent of the purchase money; and

b) for payment to the decree holder the amount specified in the proclamation of sale as

that for the recovery of which the sale was ordered less any amount which may since the

date of such proclamation of sale have been received by the decree holder.

(2) Where a person applied under rule 90 to set aside the sale of his immovable property

he shall not unless he withdraws his application be entitled to make or prosecute an application

under this rule.

(3) Nothing in this rule shall relieve the judgement-debtor from any liability he may be

under in respect of costs and interest not covered by the proclamation of sale.

90. Application to set aside on sale on ground of irregulairity of frsaud: Where any

immovable property has been sold in execution of a decree the decree-holder or any person entitled

to share in a rateable distribution of assets or whose interests are affected by the sale may apply to

the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or

conducting it:

Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon

the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason

of such irregularity or fraud [:]1

2[Provided further that no such application shall be entertained unless the applicant deposits

such amount not exceeding twenty per cent of the sum realized at the sale or furnishes such security

as the Court may direct.]

1 Subs. by the Law Reforms Ordinance 1972 (12 of 1972), s.2 and Sch., for full-stop. 2 Proviso added ibid.

430

91. Application by purchaser to set aside on ground of judgment debtor having no

saleable interest: The purchaser at any such sale in execution of a decree may apply to the Court

to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property

sold.

92. Sale when to become absolute or be set aside:- (1) Where no application is made

under rule 89, rule 90 or rule 91, or where such application is made and disallowed the Court shall

make an order confirming the sale and thereupon the sale shall become absolute.

(2) Where such application is made and allowed and where in the case of an application

under rule 89 the deposit required by that rule is made within thirty days from the date of sale the

Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all

persons affected thereby.

(3) No suit to set aside an order made under this rule shall be brought by any person against

whom such order is made.

93. Return of purchase-money in certain cases: Where a sale of immovable property is

set aside under rule 92 the purchaser shall be entitled to an order for repayment of his purchase

money with or without interest as the Court may direct against any person to whom it has been

paid.

94. Certificate to purchaser: Where a sale of immovable property has become absolute

the Court shall grant a certificate specifying the property sold and the name of the person who at

the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which

the sale became absolute.

95. Delivery of property in occupany of judgment-debtor: Where the immovable

property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of

some person claiming under a title created by the judgment debtor subsequently to the attachment

of such property and a certificate in respect thereof has been granted under rule 94 the Court shall

on the application of the purchaser order delivery to be made by putting such purchaser or any

person whom he may appoint to receive delivery on his behalf in possession of the property and if

need be by removing any person who refuses to vacate the same.

96. Delivery of property in occupany of tenant: Where the property sold is in the

occupancy of a tenant or other person entitled to occupy the same and a certificate in respect

thereof has been granted under rule 94, the Court shall, on the application of the purchaser order

delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the

property and proclaiming to the occupant by beat of drum or other customary mode, at some

convenient place that the interest of judgment debtor has been transferred to the purchaser.

431

Resistance to Delivery of Possession to Decree-holder

Or Purchaser

97. Resistance or obstruction to possession of movable property:- (1) Where the holder

of a decree for the possession of immovable property or the purchaser of any such property sold

in execution of a decree is resisted or obstructed by any person in obtaining possession of the

property he may make an application to the Court complaining of such resistance or obstruction.

(2) The Court shall fix a day for investigating the matter and shall summon the party against

whom the application is made to appear and answer the same.

98. Resistance or obstruction by judgment debtor: Where the Court is satisfied that the

resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some

other person at his instigation it shall direct that the applicant be put into possession of the property

and where the applicant is still resisted or obstructed in obtaining possession the Court may also

at the instance of the applicant order the judgment-debtor or any person acting at his instigation to

be detained in […..] prison for a term which may extend to thirty days.

99. Resistance or obstruction by bona fide claimant: Where the Court is satisfied that

the resistance or obstruction was occasioned by any person (other than the judgment-debtor)

claiming in good faith to be in possession of the property on his own account or on account of

some person other than the judgment-debtor the Court shall make an order dismissing the

application.

100.Dispossession by decree-holder bor purchaser:- (1) Where any person other than

the judgment-debtor is dispossessed of immovable property by the holder of a decree for the

possession of such property or where such property has been sold in execution of a decree by the

purchaser thereof he may make an application to the Court complaining of such dispossession.

(2) The Court shall fix a day for investigating the matter and shall summon the party against

whom the application is made to appear and answer the same.

101. Bona fide calimant to be restored to posession: Where the Court is satisfied that the

applicant was in possession of the property on his own account or on account of some person other

than the judgement-debtor it shall direct that the applicant be put into possession of the property.

102. Rules not applicable to transferee lite bedente: Nothing in rules 99 and 101 shall

apply to resistance or obstruction in execution of a decree for the possession of immovable

property by a person to whom the judgment-debtor has transferred the property after the institution

of the suit in which the decree was passed or to the dispossession of any such person.

1[103. Certain oders conclusive and suit barred: - All questions arising as to title, right

or interest in or possession of immovable property between an applicant under rule 97 and the

opposite-party or between an applicant under rule 100 and the opposite party shall be adjudicated

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 a.d Sch for the original rule 103.

432

upon and determined by the Court and no separate suit shall lie for the determination of any such

matter.]

____________

ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

1. No abatement by party`s death if right to sue survives: The death of plaintiff or

defendant shall not cause the suit to abate if the right to sue survives.

2. Procedure where one of several pliantiffs or defeandants dies and right to sue

survives: Where there are more plaintiffs or defendants than one, and any of them dies, and where

the right to sue survives to the surviving plaintiffs or plaintiffs alone or against the surviving

defendant or defendants alone the Court shall cause an entry to that effect to be made on the record

and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the

surviving defendant or defendants.

3. Procedure in case of death of one of sevaral plaintiffs or of sloe plaintiff: - (1) Where

one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs

alone 1[, or on receipt of an intimation of the death of such plaintiff from the person nominated by

him for that purpose under rule 26, Order VII or a sole plaintiff or sole surviving plaintiff dies and

the right to sue survives the Court on an application made in that behalf shall cause the legal

representative of the deceased plaintiff to be made a party and shall proceed with the suit.

2[(2) Where within the time allowed by law no application is made or intimation is given

under sub-rule (I), the Court may proceed with the suit and any order made or judgment

pronounced in such suit shall notwithstanding the death of such plaintiff have the same force and

effect as if it had been made or pronounced before the death took place.]

4. Procedure in case of death of one of several defandants or of sole defandant:- (1)

Where one of two or more defendants dies and the right to sue does not survive against the

surviving defendant or defendants alone 3[,or on receipt of an intimation of the death of such

defendant from the person nominated by him for that purpose under rule 13, Order VIII], or a sole

defendant or sole surviving defendant dies and the right to sue survives the Court on an application

made in that behalf, shall cause the legal representative of the deceased defendant to made a party

and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal

representative of the deceased defendant.

1 Ins. ibid. 2 Sbus. By the Law Reforms Ordinance, 1972 (12 of 1972), s.2, for the original sub-rule (2). 3 Ins. ibid.

433

1[(3) When within the time limited by law no application is made or intimation is given

under sub-rule (1) the Court may proceed with the suit and any order made or judgment

pronounced in such suit shall notwithstanding the death of such defendant have the same force and

effect as if it had been pronounced before the death took place.]

2[(4) It shall not be necessary to substitute the legal representatives of any such defendant

who has failed to file a written statement or has failed to appear and contest the suit at the hearing;

and judgment may in such case be pronounced against the said defendant notwithstanding his death

and such judgment shall have the same force and effect as if had been pronounced before his death

took place.]

5. Determination of question as to legal representative: Where a question arises as to

whether any person is or is not the legal representative of a deceased plaintiff or a deceased

defendant such question shall be determined by the Court.

6. No abatement by reason of death after hearing: Notwithstanding anything contained

in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by

reason of the death of either party between the conclusion of the hearing and the pronouncing of

the judgment, but judgment may in such case be pronounced notwithstanding death and shall have

the same force and effect as if it had been pronounced before the death took place.

7. Suit not abated by marriage of female party: - (1) The marriage of a female plaintiff

or defendant shall not cause the suit to abate but the suit may notwithstanding be proceeded with

to judgment and where the decree is against a female defendant it may be executed against her

alone.

(2) Where the husband is by law liable for the debts of his wife the decree may with the

permission of the |court be executed against the husband also; and in case of judgment for the wife

execution of the decree may with such permission, be issued upon the application of the husband

where the husband is by law entitled to the subject-matter of the decree.

8. When plaintiff`s insolvency bars suit: - (1) The insolvency of a plaintiff in any suit

which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the

suit to abate unless such assignee or receiver declines to continue the suit or (unless for any special

reason the Court otherwise directs) to give security for the costs thereof within such time as the

Court may direct.

(2) Procedure where assignee fails to continue suit or give security: Where the assignee

or receiver neglects or refuses to continue the suit and to give such security within the time so

ordered the defendant may apply for the dismissal of the suit on the ground of the plaintiff's

insolvency and the Court may make an order dismissing the suit and awarding to the defendant the

costs which he has incurred in defending the same to be proved as a debt against the plaintiff's

estate.

1 Subs. ibidi., for sub-rule (3). 2 Sub-rule (4) added ibid.

434

1[9. Effect of dismissal: - (1) When a suit is dismissed under rule 8 no fresh suit shall be

brought on the same cause of action.

(2) Any person claiming to be the legal representative of a deceased plaintiff or defendant

or the assignee or the receiver in the case of an insolvent [plaintiff may apply to the Court for

setting aside any order made or judgment pronounced by it in his absence; and if it is proved that

he was prevented by any sufficient cause from continuing the suit or defending the suit as the case

may be the Court shall set aside the order or the judgment upon such terms as to costs or otherwise

as it thinks fit.]

2[(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to

applications under sub-rule (2).

10. Procedure in case of assignmnent before final order in suit: - (1) In other cases of

an assignment, creation or devolution of any interest during the pendency of a suit the suit may,

by leave of the Court be continued by or against the person to or upon whom such interest has

come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an

interest entitling the person who procured such attachment to the benefit of sub-rule (1).

11. Application of order to appeals: In the application of this Order to appeals so far as

may be the word "Plaintiff" shall be held to include an appellant the word "defendant" a respondent

and the word "suit" an appeal.

12. Application of order to proceedings: Nothing in rules 3, 4 and 8 shall apply to

proceedings in execution of a decree or order.

_______________

ORDER XXIII

WITHDRAWAL AND ADJUSTMENT OF SUITS

1. Withdrawl of suit or abandenment of part of claim: -(1) At any time after the

institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or

abandon part of his claim.

(2) Where the Court is satisfied -

a) that a suit must fail by reason of some formal defect or

b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit

for the subject-matter of a suit or part of a claim,

1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the Original rule 9. 2 Sub-rule (3) added by the Civil Procedure (Amdt.) Act, 1990 (4 of 1990), s.2.

435

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such

suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject

matter of such suit or such part of a claim.

(3) Where the plaintiff withdraws from a suit or abandons part of a claim without the

permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and

shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of

the claim.

(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several

plaintiffs to withdraw without the consent of the others.

2. Limitation law not affected by first suit: In any fresh suit instituted on permission

granted under the last preceding rule the plaintiff shall be bound by the law of limitation in the

same manner as if the first suit had not been instituted.

3. Compromise of suit: Where it is proved to the satisfaction of the Court that a suit has

been adjusted wholly or in part by any lawful agreement or compromise or where the defendant

satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit the Court

shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in

accordance therewith so far as it relates to the suit.

4. Proceedings in execution of decree not affected: Nothing in this Order shall apply to

any proceedings in execution of a decree or order.

______________

ORDER XXIV

PAYMENT INTO COURT

1. Deposit by defendant of amount in satisfaction of claim: The defendant in any suit to recover

a debt or damages may at any stage of the suit deposit in Court such sum of money as he considers

a satisfaction in full of the claim.

2. Notice of deposit: Notice of the deposit shall be given through the Court by the

defendant to the plaintiff and the amount of the deposit shall (unless the Court otherwise directs)

be paid to the plaintiff on his application.

3. Interest on deposit not allowed to plaintiff after notice: No interest shall be allowed

to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice

whether the sum deposited is in full of the claim or falls short thereof.

4. Procedure where plaintiff accepts deposit as satisfaction in part: - (1) Where the

plaintiff accepts such amount as satisfaction in part only of his claim, he may prosecute his suit for

the balance; and if the court decides that the deposit by the defendant was a full satisfaction of the

436

plaintiff's claim the plaintiff shall pay the costs of the suit incurred after the deposit and the costs

incurred previous thereto so far as they were caused by excess in the plaintiff's claim.

(2) Procedure where he accepts it as satisfaction in full: Where the plaintiff accepts such

amount as satisfaction in full of his claim he shall present to the Court a statement to that effect

and such statement shall be filed and the Court shall pronounce judgment accordingly and in

directing by whom the costs of each party are to be paid the Court shall consider which of the

parties is most to blame for the litigation.

Illustrations

a) A owes B Rs.100 . B sues A for the amount, having made no demand for payment and

having no reason to believe that the delay caused by making a demand would place him at a

disadvantage. On the plaint being filed, A pays the money into Court. B accepts it in full

satisfaction of his claim, but the Court should not allow him any costs, the litigation being

presumably groundless on his part.

b) B sues A under the circumstances mentioned in Illustration (a). On the plaint being filed

A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of

his claim. The Court should also give B his costs of suit, A's conduct having shown that the

litigation was necessary.

c) A owes B Rs 100, and is willing to pay him that sum without suit. B claims Rs.150 and

sues A for that amount. On the plain being filed A pays Rs.100 into Court and disputes only his

liability to pay the remaining Rs.50. B accepts the Rs.100 in full satisfaction of his claim. The

Court should order him to pay A's costs.

___________

ORDER XXV

SECURITY FOR COSTS

1. When security for costs may be required from plaintiff:- (1) Where at any stage of a

suit it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that

all the plaintiffs are residing out of Pakistan and that such plaintiff does not or that no one of such

plaintiffs does possess any sufficient immovable property within Pakistan other than the property

in suit the Court may, either of its own motion or on the application of any defendant, order the

plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred

and likely to be incurred by any defendant.

(2) Residence out of Pakistan: Whoever leaves Pakistan under such circumstances as to

afford reasonable probability that he will not be forthcoming whenever he may be called upon

topay costs shall be deemed to be residing out of Pakistan within the meaning of sub-rule (1).

437

(3) On the application of any defendant in a suit for the payment of money, in which the

plaintiff is a woman, the Court may at any stage of the suit make a like order if it is satisfied that

such plaintiff does not possess any sufficient immovable property within Pakistan.

2. Effects of failure to furnish security:- (1) In the event of such security not being

furnished within the time fixed, the Court shall make an order dismissing the suit unless the

plaintiff or plaintiffs are permitted to withdraw therefrom.

(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the

dismissal aside, and,. If it is proved to the satisfaction of the Court that he was prevented by any

sufficient cause from furnishing the security within the time allowed, the Court shall set aside the

dismissal upon such terms as to security, costs or otherwise as is thinks fit, and shall appoint a day

for proceeding with the suit.

(3) The dismissal shall not be set aside unless notice of such application has been served

on the defendant.

___________

ORDER XXVI

COMMISSIONS

Commissions to Examine Witnesses

1. Cases in which Court may issue commission to examine witness: Any court may in

any suit issue a commission for the examination on interrogatories or otherwise of any person

resident within the local limits of its jurisdiction who is exempted under this Code from attending

the Court or who is from sickness or infirmity unable to attend it.

2. Order for commission: An order for the issue of a commission for the examination of

a witness may be made by the Court either of its own motion or on the application, supported by

affidavit or otherwise, of any party to the suit or of the witness to be examined.

3. Where witness resides within Court`s jurisdiction: A commission for the examination

of a person who resides within the local limits of the jurisdiction of the Court issuing the same

may be issued to any person whom the Court thinks fit to execute it.

4. Persons for whose examination commission may issue:- (1) Any Court may in any

suit issue a commission for the examination of -

a) any person resident beyond the local limits of its jurisdiction;

b) any person who is about to leave such limits before the date on which he is

required to be examined in Court; and

438

c) 1[any person in the service of the 2[State]] who cannot, in the opinion of the

Court, attend without detriment to the public service.

(2) Such commission may be issued to any Court, not being a High Court, within the local

limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court

issuing the commission may appoint.

(3) The Court on issuing any commission under this rule shall direct whether the

commission shall be returned to itself or to any subordinate Court.

5. Commission or rquest to examine witness not withn Pakistan: Where any Court to

which application is made for the issue of commission for the examination of a person residing at

any place not within Pakistan is satisfied that the evidence of such person is necessary, the Court

may issue such commission or a letter of request.

6. Court to examine witness pursuant to commission: Every Court receiving a

commission for the examination of any person shall examine him or cause him to be examined

pursuant thereto.

7. Return of commission with depositions of witnesses: Where a commission has been

duly executed it shall be returned, together with the evidence taken under it, to the Court from

which it was issued, unless the order for issuing the commission has otherwise directed, in which

case the commission shall be returned in terms of such order; and the commission and the return

thereto and the evidence taken under it shall (subject to the provisions of the next following rule)

form part of the record of the suit.

8. When depositon may be read in evidence: Evidence taken under a commission shall

not be read as evidence in the suit without the consent of the party against whom the same is

offered unless-

a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or

unable from sickness or infirmity to attend to be personally examined, or exempted from

personal appearance in Court, or is a 3[person in the service of the 4[State]] who cannot, in

the opinion of the Court attend without detriment to the public service, or

b) the Court in its discretion dispenses with the proof of any of the circumstances

mentioned in clause (a) and authorizes the evidence of any person being read as evidence

in the suit, notwithstanding proof that the cause for taking such evidence by commission

has ceased at the time of reading the same.

1 Subs. by A.O. 1937, for “any civil or military officer of the Govt.” 2 Subs. by A.O. 1961, Art. 2 and Sch. For “Crown ” (with effect from the 23rd March, 1956). 3 Subs. by A.O., 1937 for “civil or military officer of the Govt.”. 4 Subs. by A.O., 1961, Art. 2 and Sch. For “Crown” (with effect from the 23rd March, 1956).

439

Commissions for Local Investigations

9. Commission to make local investigation: In any suit in which the Court deems a local

investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of

ascertaining the market-value of any property, or the amount or any mesne profits or damages or

annual net profits, the Court may issue a commission to such person as it thinks fit directing him

to make such investigation and to report thereon to the Court:

Provided that, where the 1[Provincial Government] has made rules as to the persons to

whom such commission shall be issued, the Court shall be bound by such rules.

10. Procedure of Commissioner:- (1) The Commissioner, after such local inspection as

he deems necessary and after reducing to writing the evidence taken by him, shall return such

evidence, together with his report in writing signed by him to the Court.

(2) The report of the Commissioner and the evidence taken by him (but ot the evidence

without the report) shall be evidence in the suit and shall form part of the record; but the Court or,

with the permission of the Court, any of the parties to the suit may examine the

Commissioner personally in open Court touching any of the matters referred to him or mentioned

in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the

Commissioner, it may direct such further inquiry to be made as it shall think fit.

Commission to examine Accounts

11. Commission to examiner adjust accounts: In any suit in which an examination or

adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks

fit directing him to make such examination or adjustment.

12. Courts to give Commissioner necessary instructions, proceedings and report to be

evidence Court may direct further inquiry:- (1) The Court shall furnish the Commissioner with

such part of the proceedings and such instructions as appear necessary and the instructions shall

distinctly specify whether the Commissioner is merely to transmit the proceedings which he may

hold on the inquiry, or also to report his own opinion on the point referred for his examination.

1 Subs. by A.O. 1937, for “L.G.”

440

(2) The proceedings and report (if any) of the Commissioner shall be evidence in the suit,

but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as

it shall think fit.

Commissions to make Partitions

13. Commission to make partition of immovable property: Where a preliminary decree

for partition has been passed, the Court may, in any case not provided for by section 54, issue a

commission to such person as it thinks fit to make the partition or separation according to the rights

as declared in such decree.

14. Procedure of Commissioner:- (1) The Commissioner shall, after such inquiry as may

be necessary, divide the property into as many shares as may be directed by the order under which

the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto

by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The Commissioner shall then prepare and sign a report or the Commissioners(where

the commission was issued to more than one person and they cannot agree) shall prepare and sign

separate reports appointing the share of each party and distinguishing each share (if so directed by

the said order) by metes and bounds. Such report or reports shall be annexed to the commission

and transmitted to the Court; and the Court, after hearing any objections which the parties may

make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in

accordance with the same as confirmed or varied; but where the Court sets aside the report or

reports it shall either issue a new commission or make such other order as it shall think fit.

General Provisions

15. Expenses of Commission to be paid into Court: Before issuing any commission

under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of

the commission to be, within a time to be fixed paid into Court by the party at whose instance or

for whose benefit the commission is issued.

16. Powers of Commissioners: Any commissioner appointed under this Order may,

unless otherwise directed by the order of appointment,-

a) examine the parties themselves and any witness whom they or any of them may

produce, and any other person whom the Commissioner thinks proper to call upon to give

evidence in the matter referred to him;

b) call for and examine documents and other things relevant to the subject of inquiry;

441

c) at any reasonable time enter upon or into any land or building mentioned in the order.

17. Attendance and examination of witnesses before Commissioner:- (1) The

provisions of this Code relating to the summoning, attendance and examination of witnesses, and

to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required

to give evidence or to produce documents under this Order whether the commission in execution

of which they are so required has been issued by a Court situate within or by a Court situate beyond

the limits of Pakistan and for the purpose of this rule the Commissioner shall be deemed to be a

civil Court.

(2) A Commissioner may apply to any Court (not being a High Court) within the local

limits of whose jurisdiction a witness resides for the issue of any process which he may find it

necessary to issue to or against such witness, and such Court may, in its discretion, issue such

process a sit considers reasonable and proper.

18. Parties to appear before Commissioner:- (1) Where a commission is issued under

this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner

in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their

absence.

1[Commissions issued at the instance of Foreign Tribunals.

19. Cases in which High Court may issue commission to examine witness:- (1) If a

High Court is satisfied -

a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a

witness in any proceeding before it,

b) that the proceeding is of a civil nature, and

c) that the witness is residing within the limits of the High Court's appellate jurisdiction.

It may, subject to the provisions of rule 20, issue a commission for the examination of

such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule

(1)-

a) by a certificate signed by the consular officer of the foreign country of the highest rank

in 2[Pakistan] and transmitted to the High Court through the [Federal Government], or

1 Rules 19 to 22 and the heading above them wre ins. by the Code of Civil Procedure (Amdt.) Act, 1932 (10 of 1932), s.3. 2 Subs. by A.O., 1949,f ir “India,.

442

b) by a letter of request issued by the foreign Court and transmitted to the High Court

through the 1[Federal Government], or

c) by a letter of request issued by the foreign Court and produced before the High Court

by a party to the proceeding.

20. Application for commission: The High Court may issue a commission under rule 19

-

a) upon application by a party to the proceeding before the foreign Court or

b) upon an application by a law officer of the Provincial Government acting under instructions

from the 2[Provincial Government].

21. To whom commission may be issued: A commission under rule 19 may be issued to

any Court within the local limits of whose jurisdiction the witness resides, or, where 3*** the

witness resides within the local limits of 4[the ordinary original civil jurisdiction of the High

Court], to any person whom the Court thinks fit to execute the commission.

22. Issue, execution and return of commission and transmission of evidence to foreign

Court: The provisions of rules 6, 15, 16, 17 and 18 of this Order in so far as they are applicable

shall apply to the issue, execution and return of such commissions, and when any such commission

has been duly executed it shall be returned, together with the evidence taken under it, to the High

Court, which shall forward it to the 5[Federal Government] along with the letter or request for

transmission to the foreign Court.

__________________

ORDER XXVII

SUITS BY OR AGAINST 6[THE GOVERNMENT] OR PUBLIC OFFICERS

IN THEIR OFFICIAL CAPACITY

1. Suits by or against Government: In any suit by or against 7[the Government], the

plaint or written statement shall be signed by such person as the Government may, by general or

special order, appoint in this behalf, and shall be verified by any person whom the Government

may so appoint and who is acquainted with the facts of the case.

1 Subs. F.A.O., 1975 Art. 2 and Table. For “Central Government”, wihich was previously subs. by A.O., 1937, for “G.G. in C.”. 2 Subs. by A.O., 1937, for “L.G”. 3 The words “the High Court is established under the Indian High Courts Act, 1861, or the G. of I. Act, 1915, and” rep., ibid. 4 Subs. ibid., for “its ordinary original civil jurisdiction”. 5 Subs. by F.A.O., 1975, Art. 2 and table, for “Central Government” which was previously subs. by A.O., 1937. for G.G. in C”. 6 The original words “the Government were first subs. by A.O., 1937, and then amended by A.O., 1961, Art. 2 and Sch (with effect from the 23rd

March, 1956 to read as above. 7 The original words “the Secretary of State for India in Council” were first subs. by A.O., 1937 and then amended by A.O., 1961, Art. 2 and Sch

(with ffect fromteh 23rd March, 1956), to read as above.

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12. Person authorized to act for Government: Persons being ex officio or other wise

authorised to act for the Government in respect of any judicial proceeding shall be deemed to be

the recognized agents by whom appearances, acts and applications under this Code maybe made

or done on behalf of 5[the Government].

3. Plaints in suits by or against Government: In suits by or 2[against the Government],

instead of inserting in the plaint the name and description and place of residence of the plaintiff or

defendant, it shall be sufficient to insert 3[the appropriate name as provided in section 79, 4* * *] .

5[4. Agent for Government to recive process: The 6[Government] pleader in any Court

shall be the agent of the Government for the purpose of receiving processes against the

Government issued by such Court.

5. Fixing of day for appearance on behalf of Government: The Court, in fixing the day

for 7[the Government] to answer to the plaint, shall allow a reasonable time for the necessary

communication 8[with the Government] through the proper channel, and for the issue of

instructions to the 9[Government] pleader to appear and answer on behalf of 10[the Government] 11* * * and may extend the time at its discretion.

6. Attendance of person able to answer question relatinmg to suit against

Government: The Court may also, in any case in which the Government pleader is not

accompanied by any person on the part of the Government who may be able to answer any material

questions relating to the suit, direct the attendance of such a person.

7. Extension of time enable piblic officer to make reference to Government: - (1)

Where the defendant is a public officer and, on receiving the summons, considers it proper to make

a reference to the Government before answering the plaint, he may apply to the Court to grant such

extension of the time fixed in the summons as may be necessary to enable him to make such

reference and to receive orders thereon through the proper channel.

(2) Upon such application the court shall extend the time for so long as appears to it to be

necessary.

1 For notifn. Under this rule, see Gaz. Of P., 1956, Pt. I, P. 486. 2 The original words “against the Secretary of State for India in Council” were first subs by A.O., 1937 and then amended by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), toread as above. 3 Subs. by A.O., 1937, for the words “The Secretary of State for India in Council”. 4 The words “or, if the suit is against the Secretary of State,” the words “the Secretary of State,” omitted by A.O., 1949. 5 Subs. by A.O., 1937, for the words” ‘the Secretary of state for Idnia in Council”. 6 Subs. by A.O., 1961, Art. 2 and Sch. For “Crown” (with effect from the 23rd Marach, 1956). 7 See footnote 6 on preceding page. 8 The original words “with the Government” were first subs. by A.O., 1937 and tehn amended by A.O., 1961, Art. 2 and Sch. (with effect from

the 23rd March, 1956), to read as above. 9 The original words “Governemnt pleader” were first subs. by A.O., 1937 10 The original words “the said Secretary amended by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), to read as above. 11 The words” or the Government” omitted by A.O., 1949.

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18. Procedure in suits against public officer:- (1) Where 2[the Government] undertakes

the defence of a suit against a public officer 3[the Government pleader], upon being furnished with

authority to appear and answer the plaint, shall apply to the Court, and upon such application the

Court shall cause a note of his authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by [the [Government] pleader] on or before

the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a

suit between private parties:

Provided that the defendant shall not be liable to arrest, nor his property to attachment

otherwise than in execution of a decree.

4[8.A. No security to be required from Government or a public officer in certain

cases: No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the 5[Government] or where the Government has undertaken the defence of the suit, from any public

officer sued in respect of an act alleged to be done by him in his official capacity.

8B. Definitions of “Government” and “Government pleader”: In this Order

"Government" and "Government pleader" means respectively-

a) in relation to any suit by or against 6* * * the 7[Federal Government], or against a public

officer in the service of that Government, the Federal Government and such pleader as that

Government may appoint whether generally or specially for the purposes of this Order:

8* * * * * *

c) in relation to any suit by or against a Provincial Government or against a public officer

in the service of a Province, the Provincial Government and the Government pleader, or such other

pleader as the Provincial Government may appoint, whether generally or specially for the purposes

of this Order.]

____________________

1 For notifn. Under these rules, see Gaz. Of P. 1956, Pt. 1, p. 486. 2 See foot-note 5 on page 572, supra. 3 The original words “the Government pleader” have successively been amended by A.O., 1937, and A.O., 1961, Art. 2 and Sch. (with effect the

23rd March, 1956), to read as above. 4 Rules 8A and 8B were ins. by A.O., 1937. 5 Subs. by A.O., 1961, Art. 2 and Sch. For “Crown” (with ffect from the 23rd march, 1956). 6 The words “the Secretary of State or “omitted by A.O., 1949. 7 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”. 8 Cl. (b) omitted by A.O., 1949.

445

1[ORDER XXVIIA

SUITS INVOLVING 2[ANY SUBSTANTIAL QUESTION AS TO THE

INTERPRETATION OF CONSTITIONAL LAW]

1. Notice to the Advocate General: In any suit in which it appears to the Court that [ any

substantial question as to the interpretation of constitutional law is involved, the Court shall not

proceed to determine the question until after notice has been given to the 3[Attorney-General for

Pakistan] if the question of law concerns the Central Government and to the Advocate-General of

the Province if the question of law concerns a Provincial Government.

2. Court may add Government as party: The Court may at any stage of the proceedings

order that the 4[Federal Government] or a provincial Government shall be added as a defendant in

any suit involving any substantial question as to the interpretation of constitutional law if the

Attorney-General for Pakistan or the Advocate-General of the Province as the case may be,

whether upon receipt of notice under rule 1, or otherwise applies for such addition and the Court

is satisfied that such addition is necessary or desirable for the satisfactory determination of the

question of law involved.

3. Costs when Government added as party: Where under rule 2 Government is added as

a defendant in a suit 5[the Attorney-General,] the Advocate General or the Government shall not

be entitled to or liable for costs in the Court which ordered the addition unless the Court having

regard to all the circumstances of the case for any special reason otherwise orders .

4. Application of Order: In the application of this Order to appeals the word “ defendant”

shall be held to include a respondent and the word “suit” an appeal.

_________________

ORDER XXVIII

SUITS BY OR AGAINST MILITARY 6[OR NAVAL] MEN 7[OR AIRMEN]

1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorize any

person to sue or defend for them: - (1) Where any officer, 8[soldier, sailor or airman] actually 9[in the service of the State] in 10[such] capacity is a party to a suit, and cannot obtain leave of

1 Order XXVIIA ins. by the Codeo f Civil Procedure (Amdt.) Act, 1942 (23 of 1942), s.2 2 Subs. by A.O., 1961, Art. 2 and Sch (with effect from the 23rd March, 1956), for “any such question as is referred to in sub-section (1) of section

205 of the Government of Idnia Act, 1935” which had been subs. by A.O., 1949, for “a substantial question of law as to the interprectation of the

Government of India Act, 1935, or any Order in Council made thereudner”. 3 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), for “Advocate-General of Paksitan” which had been subs. by

A.O., 1949, for “Advocate-General of India”. 4 Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”. 5 Ins. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956). 6 Ins. by the Amending Act, 1934 (35 of 1934), s. 2 and Sch. 7 Ins. by the Repealing and Amending Act, 1927 (10 of 1927), s.2 and 1st Sch. 8 The words “soldier or airman” were subs. by Act, 10 of 1927, s.2 and 1st Sch., for the words “or soldier” and the words “sailor” was ins. by Act

35 of 1934, s.2 and Sch. 9 Sbus. By A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), for “serving under the Crown” which had been subs. by A.O>< 1937, for “serving the Gov.t” 10 Subs. by Act 35 of 1934, s.2 and Sch., for “a military or air-force” The words “or air-force” had been ins. by Act 10 of 1927, s.2 and 1st Sch.

446

absence for the purpose of prosecuting or defending the suit in person, he may authorise any

person to sue or defend in his stead.

(2) The authority shall be in writing and shall be signed by the officer, soldier, sailor or

airman in the presence of (a) his commanding officer, or he next subordinate officer, if the party

is himself the commanding officer, or (b) where the officer, soldier, sailor or airman is serving in

military naval or air force staff employment, the head or other superior officer of the office in

which he is employed. Such commanding or other officer shall counter sign the authority which

shall be filed in Court.

(3) When so filed the countersignature shall be sufficient proof that he authority was duly

executed, and that the officer, 1[soldier, sailor or airman] by whom it was granted could not obtain

leave of absence for the purpose of prosecuting or defending the suit in person.

Explanation - In this Order the expression "commanding officer" means the officer in

actual command for the time being of any regiment, corps, 2[ship] detachment or depot to which

the officer, soldier, sailor or airman belongs.

2. Person to auhtorised may act personally or appoint pleader: Any person authorised

by an officer, soldier, sailor or airman to prosecute or defend a suit in his stead may prosecute or

defend it in person in the same manner as the officer, soldier, sailor or airman could do if present;

or he may appoint a pleader to prosecute or defend the suit on behalf of such officer, soldier, sailor

or airman.

3. Service on person so authorisesd or on his pleader to be good service: Processes

served upon any person authorised by an officer, soldier, sailor or airman under rule 1 or upon any

pleader appointed as aforesaid by such person shall be as effectual as if they had been served on

the party in person.

________________________

ORDER XXIX

SUITS BY OR AGAINST CORPORATIONS

1. Subscription and verification of pleading:. In suits by or against a corporation, any

pleading may be signed and verified on behalf of the corporation by the secretary or by any director

or other principal officer of the corporation who is able to depose to the facts of the case.

2. Service on corporation: Subject to any statutory provision regulating service of

process, where the suit is against a corporation the summons may be served -

a) on the secretary, or on any director, or other principal officer of the corporation , or

1 The words “soldier or airman” were subs. by the Repealing and Amending Act, 1927 (10 of 1927), s.2 and 1st Sch., for the words “or soldier” and the word “sailor” was ins. by the Amending Act, 1934 (35 of 1934), s. 2 and Sch. 2 Ins. by Act 35 of 1934, s.2 and Sch.

447

b) by leaving it or sending it by post addressed to the corporation at the registered office,

or if there is no registered office then at the place where the corporation carries on business.

3. Power to require personal attendance of officer of corporation: The Court may, at

any stage of the suit, require the personal appearance of the secretary or of any director, or other

principal officer of the corporation who may be able to answer material questions relating to the

suit.

___________________

ORDER XXX

SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON

BUSINESS IN NAMES OTHER THAN THEIR OWN

1. Suing of partner in name of firms:- (1) Any two or more persons claiming or being

liable as partners and carrying on business in 1[Pakistan] may sue or be sued in the name of firm

(if any) of which such persons were partners at the time of the accruing of the cause of action and

any party to a suit may in such case apply to the Court for a statement of the names and addresses

of the persons who were at the time of the accruing of the cause of action partners in such firm, to

be furnished and verified in such manner as the Court may direct.

(2) Where persons sue on sued as partners in the name of their firm under sub-rule (1) it

shall in the case of any pleading or other document required by or under this Code to be signed

verified or certified by the plaintiff or the defendant suffice if such pleading or other document is

signed, verified or certified by any one of such persons.

2. Disclosure of partners name:- (1) Where a suit is instituted by partners in the name of

their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any

defendant, forthwith declare in writing the names and places of residence of all the persons

constituting a firm on whose behalf the suit is instituted.

(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-

rule (1) all proceedings in the suit may upon an application for that purpose, be stayed upon such

terms as the Court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub-rule (1),

the suit shall proceed in the same manner, and the same consequences in all respects shall follow,

as if they had been named as plaintiffs in the plaint:

Provided that all the proceedings shall nevertheless continue in the name of the firm.

3. Service: Where persons are sued as partners in the name of their firm, the summons

shall be served either -

1 See footnote 4 on page 544, supra.

448

a) upon any one or more of the partners, or

b) at the principal place at which the partnership business is carried on within 1[Pakistan]

upon any person having, at the time of service, the control or management of the partnership

business there, as the Court may direct; and such service shall be deemed good service upon the

firm so sued, whether all or any of the partners are within or without Pakistan:

Provided that, in the case of a partnership which has been dissolved to the knowledge of

the plaintiff before the institution of the suit, the summons shall be served upon every person within

Pakistan whom it is sought to make liable.

4. Right of suit on death of partner: - (1) Notwithstanding anything contained in section

45 of the Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm

under the foregoing provisions and any of such persons dies, whether before the institution or

during the pendency of any suit, it shall not be necessary to join the legal representative of the

deceased as a party to the suit.

(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal

representative of the deceased may have -

a) to apply to be made a party to the suit, or

b) to enforce any claim against the survivor or survivors.

5. Notice in what capacity served: Where a summons is issued to a firm and is served in

the manner provided by rule 3, every person upon whom it is served shall be informed by notice

in writing given at the time of such service, whether he is served as a partner or as a person having

the control or management of the partnership business, or in both characters, and in default of such

notice, the person served shall be deemed to be served as a partner.

6. Apperance of partners: Where persons are sued as partners in the name of their firm,

they shall appear individually in their own names, but all subsequent proceedings shall,

nevertheless continue in the names of the firm.

7. No apperance except by partners: Where a summons is served in the manner provided

by rule 3 upon a person having the control or management of the partnership business no

appearance by him shall be necessary unless he is a partner of the firm sued.

8. Apperance under protest: Any person served with summons as a partner under rule 3

may appear under protest, denying that he is a partner, but such appearance shall not preclude the

plaintiff from otherwise serving a summons on the firm and obtaining a decree against the firm

in default of appearance where no partner has appeared.

1 See footnote 4 on page 544, supra.

449

9. Suits between co-partners: This Order shall apply to suits between a firm and one or

more of the partners therein and to suits between firms having one or more partners in common;

but no execution shall be issued in such suits except by leave of the Court and on an application

for leave to issue such execution, all such accounts and inquiries may be directed to be taken and

made and directions given as may be just.

10. Suit against person carrying on buisness in name other than his own: Any person

carrying on business in a name or style other than his own name may be sued in such name or style

as if it were a firm name; and so far as the nature of the case will permit, all rules under this Order

shall apply.

__________________

ORDER XXXI

SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND

ADMINISTRATORS

1. Represenattion of beneficiaries n suits concerning property vested in trustees etc: In all suits concerning property vested in a trustee, executor or administrator, where the contention

is between the persons beneficially interested in such property and a third person, the trustee,

executor or administrator shall represent the person so interested, and it shall not ordinarily be

necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of

them to be made parties.

2. Joinder of trustees, executors and administration: Where there are several trustees,

executors or administrators they shall all be made parties to a suit against one or more of them:

Provided that the executors who have not proved their testator's will, and trustees executors

and administrators outside 1[Pakistan] need not be made parties.

3. Husband of married exectrix not to be join: Unless the Court directs otherwise the

husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by

or against her.

__________________________

ORDER XXXII

SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

1. Mionr to sue by next friend: Every suit by a minor shall be instituted in his name by

a person who in such suit shall be called the next friend of the minor.

1 See footnote 4 on page 544, supra.

450

2. Where suit is instituted without next friend plaint to be taken off the file: - (1) Where

a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to

have the plaint taken off the file, with costs to us paid by the pleader or other person by whom it

was presented.

(2) Notice of such application shall be given to such person and the Court after hearing his

objections (if any) may make such order in the matter as it thinks fit.

3. Guardian for the suit to be appointed by Court for minor defendant:- (1) Where the

defendant is a minor, the Court on being satisfied of the fact of his minority shall appoint a proper

person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon

application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed

guardian has no interest in the matters in controversy in the suit adverse to that of the minor and

that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to minor

and to any guardian of the minor appointed or declared by an authority competent in that behalf,

or, where there is no such guardian upon notice to the father or other natural guardian of the minor,

or, where there is no father or other natural guardian, to the person in whose case the minor is, and

after hearing any objection which may be urged on behalf of any person served with notice under

the sub-rule.

1[(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall,

unless his appointment is terminated by retirement, removal or death, continues as such throughout

all proceedings arising out of the suit including proceedings in any appellate or revisional Court

and any proceedings in the execution of a decree.

4. Who may act as next friend or be appointed guardian for the suit: - (1) Any person

who is of sound mind and has attained majority may act as next friend of a minor or as his guardian

for the suit:

Provided that the interest of such person is not adverse to that of the minor and that of the

minor and that he is not, in the case of a next friend, a defendant or, in the case of a guardian for

the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person

other than such guardian shall act as the next friend of the minor or be appointed his guardian for

the suit unless the Court considers for reasons to be recorded, that it is for the minor's welfare that

another person be permitted to act or be appointed, as the case may be.

1 Sub-section (3) ins. by the Code of Civil Procedure (Third Amdt.) Act, 1937 (16 of 1937), s.2.

451

(3) No person shall without his consent be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the Court

may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by

such officer in the performance of his duties as such guardian shall be borne either by the parties

or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is

interested, and may give directions for the repayment or allowance of such costs as justice and the

circumstances of the case may require.

5. Representation of minor by next friend or guardian for the suit: - (1) Every

application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2)

shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application before the Court in or by which a minor

is in any way concerned or affected, without such minor being represented by a next friend or

guardian for the suit, as the case may be, may be discharged and, where the pleader of the party at

whose instance such order was obtained knew, or might reasonably have known, the fact of such

minority, with costs to be paid by such pleader.

6. Receipt by next friend or guardian for the suit of property under decree for minor:-

(1) A next friend or guardian for the suit shall not, without the leave of the Court receive any

money or other movable property on behalf of a minor either-

a) by way of compromise before decree or order or

b) under a decree or order in favour of the minor.

(2)Where the next friend or guardian for the suit has not been appointed or declared by

competent authority to be guardian of the property of the minor, or, having been so appointed or

declared, is under any disability known to the Court to receive the money or other movable

property the Court shall if it grants him leave to receive the property require such security and give

such directions as will in its opinion, sufficiently protect the property from waste and ensure its

proper application.

7. Agreement or compromise by next friend or guardian for the suit:- (1) No next

friend or guardian for the suit shall without the leave of the Court expressly recorded in the

proceedings enter into any agreement or compromise on behalf of a minor with reference to the

suit in which he acts as next friend or guardian.

(2) Any such agreement or compromise entered into without the leave of the Court so

recorded shall be voidable against all parties other than the minor.

8. Retriemnet of next friend:- (1) Unless otherwise ordered by the Court a next friend

shall not retire without first procuring a fit person to be put in his place and giving security for the

costs already incurred.

452

(2) The application for the appointment of a new next friend shall be supported by an

affidavit showing the fitness of the person proposed and also that he has no interest adverse to that

of the minor.

9. Removal of next friend: - (1) Where the interest of the next friend of a minor is adverse

to that of the minor or where he is so connected with a defendant whose interest is adverse to that

of the minor as to make it unlikely that the minor's interest will be properly protected by him, or

where he does not do his duty, or, during the pendency of the suit, ceases to reside within 1[Pakistan], or for any other sufficient cause application may be made on behalf of the minor or

by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned

may order the next friend to be removed accordingly and make such other order as to costs as it

thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent

in this behalf and an application is made by a guardian so appointed or declared, who desires to be

himself appointed in the place of the next friend, the Court shall remove the next friend unless it

considers for reasons to be recorded by it that the guardian ought not to be appointed the next

friend of the minor and shall thereupon appoint the applicant to be next friend in his place upon

such terms as to the costs already incurred in the suit as it thinks fit.

10. Stay of proceedings on removal etc, of next friend: - (1) On the retirement removal

or death of the next friend of a minor, further proceedings shall be stayed until the appointment of

a next friend in his place.

(2) Where the pleader of such minor omits within a reasonable time to take steps to get a

new next friend appointed, any person interested in the minor or in the matter in issue may apply

to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

11. Retirement, removal or death of guardian for the suit: - (1) Where the guardian for

the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear,

the Court may permit such guardian to retire or may remove him, and may make such order as to

costs as it thinks fit.

(2) Where the guardian for the suit retires, dies or is removed by the Court during the

pendency of the suit the Court shall appoint a new guardian in his place.

12. Course to be followed by minor plaintiff or applicant on attaining majority: - (1)

A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall,

on attaining majority, elect whether he will proceed with the suit or application.

(2) Where he elects to proceed with the suit or application be shall apply for an order

discharging the next friend and for leave to proceed in his own name.

1 See foot-note 4 on page 5’4, supra.

453

(3) The title of the suit or application shall in such case may be corrected so as to read

henceforth:-

"A. B., late a minor, by C.D., his next friend, but now having attained majority."

(4) Where he elects to abandon the suit or application, he shall if a sole plaintiff or sole

applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred

by the defendant or apposite-party or which may have been paid by his next friend.

(5) Any application under this rule may be made ex parte: but no order discharging a next

friend and permitting a minor plaintiff to proceed in his own name shall be made without any

notice to the next friend.

13. When minor co-plaintiff attainig majority desires to repudiate suit: - (1) Where a

minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his

name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party shall

dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.

(2) Notice of the application shall be served on the next friend on any co-plaintiff and on

the defendant.

(3) The costs of all parties of such application and of all or any proceedings theretofore had

in the suit, shall be paid by such persons as the Court directs.

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be

made a defendant.

14. Unreasonable or imporper suit: - (1) A minor on attaining majority may, if a sole

plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that

it was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court

upon being satisfied of such unreasonableness or impropriety, may grant the application and order

the next friend to pay the costs of all parties in respect of the application and of anything done in

the suit, or make such other order as it thinks fit.

15. Application of rules to porsons of unsound mind: The provisions contained in rules

1 to 14 so far as they are applicable, shall extend to persons adjudged to be of unsound mind and

to persons who though not so adjudged are found by the Court in inquiry, by reason of unsoundness

of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.

454

1[16. Certain laws not to be affected: Nothing in this Order shall be construed to affect

or in any way derogate from the provisions of any local law for the time being in force relating to

suits by or against minors or by or against lunatics or other persons of unsound mind.]

_______________

ORDER XXXIII

SUITS BY PAUPERS

1. Suits may be instituted in forma pauperis: Subject to the following provisions, any suit may

be instituted by a pauper.

Explanation:- A person is a "pauper" when he is not possessed of sufficient means to

enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is

prescribed when he is not entitled to property worth 2[one thousand) rupees other than his

necessary wearing apparel and the subject matter of the suit.

2. Contents of application: Every application for permission to sue as a pauper shall

contain the particulars required in regard to plaints in suits a schedule of any movable or

immovable property belonging to the applicant with the estimated value thereof shall be annexed

thereto; and it shall be signed and verified in the manner prescribed for the signing and verification

of pleadings.

3. Presentation of application: Notwithstanding anything contained in these rules, the

application shall be presented to the Court by the applicant in person unless he is exempted from

appearing in Court, in which case the application may be presented by an authorised agent who

can answer all material questions relating to the application and who may be examined in the same

manner as the party represented by him might have been examined had such party attended in

person.

4. Examination of application: - (1) Where the application is in proper form and duly

presented the Court may if it thinks fit examine the applicant or his agent when the applicant is

allowed to appear by agent regarding the merits of the claim and the property of the applicant.

(2) If presented by agent, Court may order applicant to be examined by commission: Where

the application is presented by an agent, the Court may if it thinks fit order that the applicant be

examined by a commission in the manner in which the examination of an absent witness may be

taken.

5. Rejection of application: The Court shall reject an application for permission to sue as a pauper

-

1 Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Sch. For the original

rule 16, which was previously amended by various enactments from time to time. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for “one hundred”.

455

a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or

b) where the applicant is not a pauper, or

c) where he has, within two months next before the presentation of the application,

disposed of any property fraudulently or in order to be able to apply for permission to sue

as a pauper, or

d) where his allegations do not show a cause of action, or

e) where he has entered into any agreement with reference to the subject matter of the

proposed suit under which any other person has obtained an interest in such subject

matter.

6. Notice of day for receiving evidence of applicants pauperism: Where the Court sees

no reason to reject the application on any of the grounds stated in rule, 5, it shall fix a day (of

which at last ten days clear notice shall be given to the opposite party and the Government pleader)

for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing

any evidence which may be adduced in disproof thereof.

7. Procedure at hearing: - (1) On the day so fixed or as soon thereafter as may be

convenient, the Court shall examine the witnesses (if any) produced by either party and may

examine the applicant or his agent and shall make a memorandum of the substance of their

evidence.

(2) The Court shall also hear any argument which the parties may desire to offer on the

question whether, on the face of the application and of the evidence (if any) taken by the Court as

herein provided, the applicant is or is not subject to any of the prohibitions specified in rule 5.

(3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper.

8. Procedure if application admitted: Where the application is granted it shall be

numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in

all other respects as a suit instituted in the ordinary manner, except that plaintiff shall not be liable

to pay any court-fee (other than fee payable for service of process) in respect of any petition,

appointment of a pleader or other proceeding connected with the suit.

9. Dispaupering: The Court may on the application of the defendant or of the Government

pleader of which seven days clear notice in writing has been given to the plaintiff order the plaintiff

to be dispaupered-

a) if he is guilty of vexatious or improper conduct in the course of the suit;

b) if it appears that his means are such that he ought not to continue to sue as a pauper; or

456

c) if he has entered into any agreement with reference to the subject-matter of the suit

under which any other person has obtained an interest in such subject matter.

10. Costs where pauper succeeds: Where the plaintiff succeeds in the suit, the Court shall

calculate the amount of court fees which would have been paid by the plaintiff if he had not been

permitted to sue as a pauper; such amount shall be recoverable by the 1[Provincial Government]

from any party ordered by the decree to pay the same, and shall be a first charge on the subject

matter of the suit.

11. Procedure where pauper fails: Where the plaintiff fails in the suit or is dispaupered,

or where the suit is withdrawn or dismissed, -

a) because the summons for the defendant to appear and answer has not been served upon

him in consequence of the failure of the plaintiff to pay the court fee or postal charges (if

any) chargeable for such service, or

b) because the plaintiff does not appear when the suit is called on for hearing.

The Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay

the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a

pauper.

2[11.-A. Procedure where pauper suit abates: Where the suit abates by reason of the

death of the plaintiff or of any person added as a co-plaintiff the Court shall order that the amount

of court fees which would have been paid by the plaintiff if he had not been permitted to sue as a

pauper shall be recoverable by the Provincial Government from the estate of the deceased plaintiff.

12. Provincial Government may apply for payment or court-fees: The 3[Provincial

Government] shall have the right at any time to apply to the Court to make an order for the payment

of court fees under 4[rule 10 rule 11 or rule 11-A].

13. Provincila Government to be deemed a party: All matters arising between the

Provincial Government and any party to the suit under rule 10, rule 11 5[rule 11A] or rule 12 shall

be deemed to be questions arising between the parties to the suit within the meaning of section 47.

6[14. Recovery of amount of court-fees: Where an order is made under rule 10, rule 11

or rule 11A the court shall forthwith cause a copy of the decree or order to be forwarded to the

Collector, who may without prejudice to any other mode of recovery recover the amount of court

fees specified therein from the person or property liable for the payment as if it were an arrear of

land revenue.

1 Subs. by A.O., 1937, for “Govt.” 2 Rule 11A ins. by the Code of Civil Procedure (Second Amdt.) Act, 1942 (24 of 1942), s.2. 3 Subs. ibid., for the words and figures “or rule 11”. 4 Subs. ibid., for the words and figures” rule 11”. 5 The word, figures and letter “rule 11A” ins. ibid. 6 Subs. by Act 24 of 1942, s.2 for the Original s. 14.

457

15. Refusal to allow applicant as pauper to bar subsequent application of like nature: An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent

application of the like nature by him in respect of the same right to sue; but the applicant shall be

at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first

pays the costs, (if any) incurred by the Provincial Government and by the opposite party in

opposing his application for leave to sue as a pauper.

16. Costs: The costs of an application for permission to sue as a pauper and of an inquiry

into pauperism shall be costs in the suit.

_______________

458

ORDER XXXIV

SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

1. Prties to suit for foreclouser, sale and redemption: Subject to the provisions of this

Code, all persons having an interest either in the mortgage-security or in the right of redemption

shall be joined as parties to any suit relating to the mortgage.

Explanation: - A puisne mortgagee may sue for foreclosure or for sale without making the

prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a

subsequent mortgage.

1[2. Preliminary decree in foreclouser suit: In a suit for foreclosure, if the plaintiff

succeeds, the Court shall pass a preliminary decree -

a) Ordering that an account be taken of what was due to the plaintiff at the date of

such decree for –

i. principal and interest on the mortgage,

ii. the costs of suit, if any, awarded to him and

iii. other costs, charges and expenses properly incurred by himup to that

date in respect of his mortgage-security together with interest thereon; or

b) declaring the amount so due at that date; and

c) directing -

i). that, if the defendant pays into Court the amount so found or

declared due on or before such date as the Court may fix within six months

from the date on which the Court confirms and countersigns the account

taken under clause (a) or from the date on which such amount is declared in

Court under clause (b) as the case may be, and thereafter pays such amount

as may be adjudged due in respect of subsequent costs, charges and

expenses as provided in rule 10, together with subsequent interest on such

sums respectively as provided in rule 11 the plaintiff shall deliver up to the

defendant or to such person as the defendant appoints, all documents in his

possession or power relating to the mortgaged property, and shall, if so

required, retransfer the property to the defendant at his cost free from the

mortgage and from all encumbrances created by the plaintiff or any person

claiming under him, or, where the plaintiff claims by derived title by those

under whom he claims, and shall also if necessary put the defendant in

possession of the property; and

1 Rules 2 to 8 were subs. by the Transfer of Property (Amdt.) Supplementary aCt, 1929 (21 of 1929), s.4 for the original rules.

459

ii). that, if payment of the amount found or declared due under or by the

preliminary decree is not made on or before the date so fixed, or the

defendant fails to pay within such time as the Court may fix, the amount

adjudged due in respect of subsequent costs, charges, expenses and interest

the plaintiff shall be entitled to apply for a final decree debarring the

defendant from all right to redeem the property.

(2) The Court may on good cause shown and upon terms to be fixed by the Court, from

time to time, at any time before a final decree is passed, extend the time fixed for the payment of

the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of

subsequent costs, charges expenses and interest.

(3) Where in a suit for foreclosure, subsequent mortgagees or persons deriving title from

or subrogated to the rights of any such mortgagees are joined as parties the preliminary decree

shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in

the manner and form set forth in Form No.9 or Form No.10, as the case may be of Appendix D

with such variations as the circumstances of the case may require.

13. Final decree in foreclosure suit: - (1) Where, before a final decree debarring the

defendant from all right to redeem the mortgaged property has been passed, the defendant makes

payment into Court of all amounts due from him under sub-rule (1) of rule 2, the Court shall on

application made by the defendant in this behalf, pass a final decree -

a) ordering the plaintiff to deliver up the documents referred to in the preliminary

decree, and if necessary, -

b) ordering him to re-transfer at the cost of the defendant the mortgaged property

as directed in the said decree,

and also if necessary

c) ordering him to put the defendant in possession of the property.

(2) where payment in accordance with sub-rule (1) has not been made the Court shall on

application made by the plaintiff in this behalf, pass a final declaring that the defendant and all

persons claiming through or under him are debarred from all right to redeem the mortgaged

property and also, if necessary, ordering the defendant to put the plaintiff in possession of the

property.

1 See foot-note 1 on page 522, supra.

460

(3) On the passing of a final decree under sub-rule (2) all liabilities to which the defendant

is subject in respect of the mortgage or on account of the suit shall be deemed to have been

discharged.

14- Preliminary decree in suit for sale: (1) In a suit for sale if the plaintiff succeeds the

Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (I) of sub

rule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned

the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a

sufficient part thereof be sold and the proceeds of the sale (after deduction therefrom of the

expenses of the sale) be paid into Court and applied in payment of what has been found or declared

under or by the preliminary decree due to the plaintiff, together with such amount as may have

been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance,

if any, be paid to the defendant or other persons entitled to receive the same.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from

time to time at any time before a final decree for sale is passed, extend the time fixed for the

payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in

respect of subsequent costs, charges, expenses and interest.

(3) Power to decree sale in foreclosure suit: In a suit for foreclosure in the case of an

anomalous mortgage, if the plaintiff succeeds the Court may at the instance of any party to the suit

or of any other person interested in the mortgage-security or the right of redemption pass a like

decree (in liew of a decree for foreclosure) on such terms as it thinks fit, including the deposit in

Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the

performance of the terms.

(4)Where in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent

mortgages or persons deriving title from or subrogated to the rights of any such mortgagees are

joined as parties the preliminary decree referred to in sub-rule (1) shall provide for the adjudication

of the respective rights and liabilities of the parties to the suit in the manner and form set forth in

Form No.9, form No.,10 or Form No.11 as the case may be of Appendix D with such variations as

the circumstances of the case may require.

25. Final decree in suit for sale: Where on or before the day fixed or at any time before

the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this

rule, the defendant makes payment into Court of all amounts due from him under sub-sule (1) of

rule 4, the Court shall on application made by the defendant in this behalf pass a final decree or if

such decree has been passed an order -

a) ordering the plaintiff to deliver up the documents referred to in the preliminary

decree,

and if necessary, -

1 See foot-note 1 on page 522, supra. 2 See foot-note 1 on page 522 supra.

461

b) ordering him to transfer the mortgaged property as directed in the said decree,

and also if necessary,-

c) ordering him to put the defendant in possession of the property.

(2) where the mortgaged property or part thereof has been sold in pursuance of a decree

passed under sub-rule (3) of this rule the Court shall not pass an order under sub-rule (1) of this

rule unless the defendant in addition to the amount mentioned in sub-rule (1) deposits in Court for

payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid

into Court by the purchaser.

Where such deposit has been made the purchaser shall be entitled to an order for re-

payment of the amount of the purchase-money paid into Court by him, together with a sum equal

to five percent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall on

application made by the plaintiff in this behalf pass a final decree directing that the mortgaged

property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the

manner provided in sub-rule (1) of rule 4.

16. Recovery of balance due on mortgage in suit for slae: Where the net proceeds of

any sale held under the last preceding rule are found insufficient to pay the amount due to the

plaintiff the Court, on application by him may, if the balance is legally recoverable from the

defendant otherwise than out of the property sold, pass a decree for such balance.

7. Preliminary decree in redemption suit:- (1) In a suit for redemption if the plaintiff

succeeds the Court shall pass a preliminary decree-

a) Ordering that an account be taken of what was due to the defendant at the date of such

decree for -

i) principal and interest on the mortgage,

ii) the costs of suit if any awarded to him and

iii) other costs, charges and expenses properly incurred by him up to that date in

respect of his mortgage security together with interest thereon; or

b) declaring the amount so due at that date; and

c) directing -

i) that, if the plaintiff pays into Court the amount so found or declared due

on or before such date as the Court may fix within six months from the date

on which the Court confirms and countersigns the account taken under

1 See foot-note 1 on page 522, supra.

462

clause (a) or from the date on which such amount is declared in Court under

clause (b) as the case may be and thereafter pays such amount as may be

adjudged due in respect of subsequent costs, charges and expenses as

provided in rule 10 together with subsequent interest on such sums

respectively as provided in rule 11, the defendant shall deliver up the

plaintiff or to such person as the plaintiff appoints all documents in his

possession or power relating to the mortgaged property and shall if so

required re-transfer the property to the plaintiff \at his cost free from the

mortgage and from all encumbrances created by the defendant or any person

claiming under him, or where the defendant claims by derived itle, by those

under whom he claims, and shall also if necessary put the plaintiff in

possession of the property; and

ii) that, if payment of the amount found or declared due under or by the

preliminary decree is not made on or before the date so fixed or the plaintiff

fails to pay within such time as the Court may fix the amount adjudged due

in respect of subsequent costs charges expenses and interest the defendant

shall be entitled to apply for a final decree-

a) in the case of a mortgage other than a usufructuary mortgage a

mortgage by conditional sale or an anomalous mortgage the terms

of which provide for foreclosure only and not for sale that the

mortgaged property be sold or

b) in the case of a mortgage by conditional sale or such an anomalous

mortgage as aforesaid, that the plaintiff be debarred from all rights

to redeem the property.

(2) The Court may on good cause shown and upon terms to be fixed by the Court from

time to time at any time before the passing of a final decree for foreclosure or sale as the case may

be extend the time fixed for the payment of the amount found or declared due under sub-rule (1)

or of the amount adjudged due in respect of subsequent costs charges, expenses and interest.

18. Final decree in redemption suit:- (1) Where before a final decree debarring the

plaintiff from all right to redeem the mortgaged property has been passed or before the

confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the

plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the

Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree

has been passed, an order -

1 See foot-note 1 on page 522, supra.

463

a) ordering the defendant to deliver up the documents referred to in the

preliminary decree,

and if necessary,-

b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property

as directed in the said decree,

and also if necessary,-

c) ordering him to put the plaintiff in possession of the property.

(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree

passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this

rule, unless the plaintiff in addition to the amount mentioned is sub-rule (1) deposits in Court for

payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid

into Court by the purchaser.

Where such deposit has been made the purchaser shall be entitled to an order for re-

payment of the amount of the purchase money paid into Court by him, together with a sum equal

to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made the Court shall on

application made by the defendant in this behalf, -

a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is

hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons

claiming under him are debarred from all right to redeem the mortgaged property and also if

necessary ordering the plaintiff to put the defendant in possession of the mortgaged property; or

b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree

that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after

deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what

is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons

entitled to receive the same.

18.-A Recovery of balance due on mortgage in suit for redemption:- Where the net

proceeds of any sale held under the last preceding rule are found insufficient to pay the amount

due to the defendant, the Court on application by him may, if the balance is legally recoverable

from the plaintiff otherwise than out of the property sold, pass a decree for such balance

9. Decree where nothong is found dur or where mortgage has been over paid: Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred

1 Rule 8A ins. by the Transfer of Property (Amdt.) Supplementary Act, 1919 (21 of 1929), s.5.

464

to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass

a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff

the amount which may be found due to him; and the plaintiff shall, if necessary, be put in

possession of the mortgaged property.

110. Costs of mortgage subsequent to decree: In finally adjusting the amount to be paid

to a mortgagee in case of a foreclosure, sale or redemption, the Court shall unless in the case of

costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the

mortgage-money such costs of the suit and other costs charges and expenses as have been properly

incurred by him since the date of the preliminary decree for foreclosure sale or redemption up to

the time of actual payment.

11. Payment of interets: In any decree passed in a suit for foreclosure sale or redemption,

where interest is legally recoverable, the Court may order payment of interest to the mortgagee as

follows, namely:-

a) interest up the date on or before which payment of the amount found or declared due is

under the preliminary decree to be made by the mortgagor or other person redeeming the

mortgage -

i) on the principal amount found or declared due on the mortgage, - at the rate

payable on the principal, or where no such rage is fixed, at such rate as the Court

deems reasonable,

ii) on the amount of the costs of the suit awarded to the mortgagee, - at such rate as

the Court deems reasonable from the date of the preliminary decree, and

iii) on the amount adjudged due to the mortgagee for costs, charges and expenses

properly incurred by the mortgagee in respect of the mortgage-security up to the

date of the preliminary decree and added to the mortgage money, at the rate agreed

between the parties, or failing such rate, a the same rate as is payable on the

principle, or failing both such rates at nine per cent per annum; and

(b) subsequent interest up to the ate of realization or actual payment at such rate as the

Court deems reasonable -

i) on the aggregate of the principal sums specified in clause (a) and of the interest

thereon as calculated in accordance with that clause; and

ii) on the amount adjudged due to the mortgagee in respect of such further costs

charges and expenses as may be payable under rule 10.]

12. Sale of property subject to prior mortgage: Where any property the sale of which is

directed under this Order is subject to a prior mortgage, the Court may, with the consent of the

1 Subs. ibid., s.6, for the original rules 10 and 11.

465

prior mortgagee, direct that the property be sold free from the same giving to such prior mortgagee

the same interest in the proceeds of the sale as he had in the property sold.

13. Application of proceeds: - (1) Such proceeds shall be brought into Court and applied

as follows:-

first in payment of all expenses incident to the sale or properly incurred in any

attempted sale;

secondly, in payment of whatever is due to the prior mortgagee on account of the

prior mortgage and of cost properly incurred in connection therewith.

Thirdly in payment of all interest due on account of the mortgage in consequence

whereof the sale was directed and of the cost of the suit in which the decree

directing the sale was made;

Fourthly in payment of the principal money due on account of that mortgage; and

Lastly the residue (if any) shall be paid to the person proving himself to the

interested in the property sold, of if there are more such persons than one,

then to such persons according to their respective interests therein or upon

their joint receipt.

(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by

section 57 of the Transfer of Property Act, 1882.

14. Suits for sale necessary for bringing mortgaged property to sale: (1) Where a

mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under

the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by

instituting a suit for sale in enforcement of the mortgage, and he may institute such suit

notwithstanding anything contained in Order II, rule 2.

(2) Nothing in sub-rule (1) shall apply to ny territories to which the Transfer of Property

Act, 1882 has not been extended.

1[15. Mortgages byt the deposit of title-deeds and charges: All the provisions contained

in this Order which apply to a simple mortgage shall, so far as may be apply to a mortgage by

deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of

section 100 of the Transfer of Property Act 1882]

_______________________

1 Subs. by the Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s.7, for the original rule 15.

466

ORDER XXXV

INTERPLEADER

1. Plaint in interpleader suits: In every suit of interpleader the plaint shall, in addition to

other statements necessary for plaints, state -

a) that the plaintiff claims no interest in the subject matter in dispute other than for

charges or costs;

b) the claims made by the defendants severally ; and

c) that there is no collusion between the plaintiff and any of the defendants.

2. Payment of thing claimed into Court: Where the thing claimed is capable of being

paid into Court or placed in the custody of the Court the Plaintiff may be required to so pay or

place it before he can be entitled to any order in the suit.

3. Procedure where defendants issuing plaintiff: Where any of the defendants in an

interpleader-suit is actually suing the plaintiff in respect of the subject-matter of such suit, the

Court in which the suit against the plaintiff is pending shall on being informed by the Court in

which the interpleader suit has been instituted stay the proceedings as against him; and his costs

in the suit so stayed may be provided for in such suit; but if and in so far as they are not provided

for in that suit they may be added to his costs incurred in the interpleader suit.

4. Procedure at first hearing: - (1) At the first hearing the Court may -

a) declare that the plaintiff is discharged from all liability to the defendants in

respect of the thing claimed, award him his costs and dismiss him from the suit; or

b) if it thinks that justice or convenience so require retain all parties until the final

disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to

do so, it may adjudicate the title to the thing claimed.

(3) Where the admission of the parties do not enable the Court so to adjudicate it may direct

-

a) that an issue or issues between the parties be framed and tried and

b) that any claimant be made a plaintiff in lieu of or in addition to the original

plaintiff,

and shall proceed to try the suit in the ordinary manner.

5. Agents and tenants may not institute interpleader suits: Nothing in this Order shall

be deemed to enable agents to sue their principals, or tenants to sue then landlords for the purpose

467

of compelling them to interplead with any persons other than persons making claim through such

principals or the landlords.

Illustrations

a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully

obtained from him by A and claims them from B. B cannot institute an interpleader-suit against A

and C.

b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of

making the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt

is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute an

interpleader-suit against A and C.

6. Charge for plaintiff`s costs: Where the suit is properly instituted the Court may provide

for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other

effectual way.

______________________

ORDER XXXVI

SPECIAL CASE

1. Power to state case for Court opinion:-(1) Parties claiming to be interested in the

decision of any question of fact or law may enter into an agreement in writing stating such question

in the form of a case for the opinion of the Court and providing that, upon the finding of the Court

with respect to such question,-

a) a sum of money fixed by the parties or to be determined by the Court shall be paid by

one of the parties to the other of them ; or

b) some property, movable or immovable, specified in the agreement, shall be delivered by

one of the parties to the other of them; or

c) one or more of the parties shall do, or refrain from doing, some other particular act

specified in the agreement.

(2) Every case stated under this rule shall be divided into consecutively numbered

paragraphs and shall concisely state such facts and specify such documents as may be necessary

to enable the Court to decide the question raised thereby.

2. where value of subject matter must be stated: Where the agreement is for the delivery

of any property, or for the doing, or the refraining from doing, any particular act, the estimated

value of the property to be delivered or to which the act specified has reference shall be stated in

the agreement.

468

3. Agreement to be filed and regietered as suit: -(1) The agreement if framed in

accordance with the rules hereinbefore contained, may be filed in the Court which would have

jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as

the amount or value of the subject-matter of the agreement.

(2) The agreement when so filed shall be numbered and registered as a suit between one or

more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of

them as defendant or defendants; and notice shall be given to all the parties to the agreement other

than the party or parties by whom it was presented.

4. Parties to be subject to Court`s jurisdiction: Where the agreement has been filed the

parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements

contained therein.

5. Hearing and disposal of case:- (1) The case shall be set down for hearing as a suit

instituted in the ordinary manner, and the provisions of this Code shall apply to such suits so far

as the same are applicable.

(2) Where the Court is satisfied, after examination of the parties or after taking such

evidence as it thinks fit,-

a) that the agreement was duly executed by them,-

b) that they have a bona fide interest in the question stated therein and

c) that the same is fit to be decided,

it shall proceed to pronounce judgement thereon in the same way as in an ordinary suit

and upon the judgement so pronounced a decree shall follow.

_________________

ORDER XXXVII

SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS

1[1. Application of Order: This order shall apply only to the High Court 2[to the District

Court and to any other Civil Court notified in this behalf by the High Court.]

2. Instituition of summary suits upon bills of exchange, etc: - (1) All suits upon bills of

exchange hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder be

1 The original rule 1 has successively been amended by A.O., 1937 A.O., 1949, the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960),

s.3 and 2nd Sch. (with effect from the 14th October, 1955) and the civil Procedure and Limititation (Amdt.) Ordinance, 1961 (9 of 1961), s.2, to read as above. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For “and to the District Court’.

469

instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in

Appendix B or in such other form as may be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms respectively the

defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter

provided so to appear and defend; and in default of his obtaining such leave or of his appearance

and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and

the plaintiff shall be entitled to a decree -

1[a) for the principal sum due on the instrument and for interest calculated in accordance

with the provisions of section 79 or section 80 as the case may be of the Negotiable

Instruments Act 1881 up to the date of the institution of the suit or for the sum mentioned

in the summons whichever is less and for interest up to the date of the decree at the same

rate or at such other rate as the Court thinks fit; and

b) for such subsequent interest if any as the Court may order under section 34 of this Code;

and

c) for such sum for costs as may be prescribed:

Provided that if the plaintiff claims more than such fixed sum for costs the costs shall be

ascertained in the ordinary way.

(3) A decree passed under this rule may be executed forthwith.

3. Defendant showing defence on merit to have leave to appear: - (1) The Court shall

upon application by the defendant give leave to appear and to defend the suit, upon affidavits

which disclose such facts as would make it incumbent on the holder to prove consideration, or

such other facts as the Court may deem sufficient to support the application.

(2) Leave to defend may be given unconditionally or subject to such terms as to payment

into Court giving security, framing and recording issues or otherwise as the Court thinks fit.

2[(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908) shall apply to

applications under sub-rule (1)].

4. Power to set aside decree: After decree the Court may under special circumstances, set

aside the decree and if necessary stay or set aside execution, and may give leave to the defendant

to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do and

on such terms as the Court thinks fit.

5. Power to order bill, etc., to be deposited woth officer Court: In any proceedings under

this Order the Court may order the bill hundi or note on which the suit is founded to be forthwith

1 Subs. by the Negotiable Instruments (Interest) Act, 1926 (30 of 1926), section 4, for certain original words. 2 New sub-rule (3) added by the Code of Civil Procedure (Amdt.), Ordinance, 1980 (10 of 1980), s.14.

470

deposited with an officer of the Court and may further order that all proceedings shall be stayed

until the plaintiff gives security for the costs thereof.

471

6. Recovery of cost of nothing non-acceptance of dishonoured bill or note: The holder

of every dishonoured bill of exchange or promissory note shall have the same remedies for the

recovery of the expenses incurred in noting the same for non-acceptance or non-payment or

otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount

of such bill or note.

7. Procedure suits: Save as provided by this Order the procedure in suits hereunder shall

be the same as the procedure in suits instituted in the ordinary manner.

_____________________

ORDER XXXVIII

ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest before Judgment

1. Where defendants may be called upon to furnish security for appearnces: Where at

any stage of a suit other than a suit of the nature referred to in section 16, clauses (a) to (d), the

Court is satisfied by affidavit or otherwise, -

a) that the defendant with intent to delay the plaintiff or to avoid any process of the Court

or to obstruct or delay the execution of any decree that may be passed against him,-

i) has absconded or left the local limits of the jurisdiction of the Court, or

ii) is about to abscond or leave the local limits of the the jurisdiction of the Court

or

iii) has disposed of or removed from the local limits of the jurisdiction of the Court

his property or any part thereof, or

b) that the defendant is about to leave Pakistan under circumstances affording reasonable

probability that the plaintiff will or may thereby be obstructed or delayed in the execution

of any decree that may be passed against the defendant in the suit,

the Court may issue a warrant to arrest the defendant and bring him before the Court to

show cause why he should not furnish security for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the

execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's

claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the

further order of the Court.

2. Security:- (1) Where the defendant fails to show such cause the Court shall order him

either to deposit in Court money or other property sufficient to answer the claim against him, or to

furnish security for his appearance at any time when called upon while the suit is pending and

472

until satisfaction of any decree that may be passed against him in the suit, or make such order as it

thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the

last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself in default of such

appearance to pay any sum of money which the defendant may be ordered to pay in the suit.

3. Procedure on application by surety to be discharged:- (1) A surety for the appearance

of a defendant may at any time apply to the Court in which he became such surety to be discharged

from his obligation.

(2) On the application being made, the Court shall summon the defendant to appear or, if

it thinks fit, may issue a warrant for his arrest in the first instance.

(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his

voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall

call upon the defendant to find fresh security.

4. Procedure where defendats fails to furnish security or find fresh security: Where

the defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to

…. prison until the decision of the suit or, where a decree is passed against the defendant, until the

decree has been satisfied:

Provided that no person shall be detained in prison under this rule in any case for a longer

period than six months, nor for a longer period than six weeks when the amount or value of the

subject-matter of the suit does not exceed fifty rupees:

Provided also that no person shall be detained in prison under this rule after he has complied

with such order.

Attachment before Judgment

5. Where defendants may be called upon to furnish security for production of

property: - (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that

the defendant with intent to obstruct or delay the execution of any decree that may be passed

against him, -

a) is about to dispose of the whole or any part of his property, or

b) is about to remove the whole or any part of his property from the local limits of the

jurisdiction of the Court,

the court may direct the defendant, within a time to be fixed by it either to furnish security

in such sum as may be specified in the order, to produce and place at the disposal of the Court,

when required, the said property or the value of the same, or such portion thereof as may be

sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

473

(2) The plaintiff shall unless the Court otherwise directs, specify the property required to

be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any

portion of the property so specified.

6. Attachment where cause not shown or secuirty not furnished: - (1) Where the

defendant fails to show cause why he should not furnish security, or fails to furnish the security

required, within the time fixed by the Court the Court may order that the property specified, or

such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be

attached.

(2) Where the defendant shows such cause or furnishes the required security, and the

property specified or any portion of it has been attached, the Court shall order the attachment to

be withdrawn, make such other order as it thinks fit.

7. Mode of making attachment: Save as otherwise expressly provided, the attachment

shall be made in the manner provided for the attachment of property in execution of a decree.

8. Investigation of claim to property attached before judgment: Where any claim is

preferred to property attached before judgment such claim shall be investigated in the manner

hereinbefore provided for the investigation of claims to property attached in execution of a decree

for the payment of money.

9. Removal of attachemnt when security furnished or suit dismissed: Where an order

is made for attachment before judgment, the Court shall order the attachment to be withdrawn

when the defendant furnishes the security required, together with security for the costs of the

attachment, or when the suit is dismissed.

10. Attachment before judgment not to affect the rights of strangers nor bar decree

holder from applying for sale: Attachment before judgment shall not affect the rights, existing

prior to the attachment of persons not parties to the suit, nor bar any person holding a decree against

the defendant from applying the for the sale of the property under attachment in execution of such

decree.

11. Property attached before judgment not to be re-attached in execution of decree: Where property is under attachment by virtue of the provisions of this Order and a decree is

subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for

execution of such decree to apply for a re-attachment of the property.

12. Agricultural produce not attachable before judgment: Nothing in this Order shall

be deemed to authorise the plaintiff to apply for the attachment of any agricultural produce in the

possession of an agriculturist, or to empower the Court to order the attachment or production of

such produce.

474

1[13. Small cause Court not to attach immovable property: Nothing in this Order shall

be deemed to empower any Court of Small Causes to make an order for the attachment of

immovable property.

_________________

ORDER XXXIX

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary Injunctions

1. Cases in which temporary injunction may be granted: Where in any suit it is proved

by affidavit or otherwise-

a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated

by any party to the suit, or wrongfully sold in execution of a decree, or

b) that the defendant threatens or intends to remove or dispose of his property with a view

to defraud his creditors,

the Court may by order grant a temporary injunction to restrain such act, or make such

other order for the purpose of staying and preventing the wasting, damaging, alienation, sale,

removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until

further orders.

2. Injunction to restrain repition or continunace of breach: (1) In any suit for

restraining the defendant from committing a breach of contract or other injury of any kind whether

compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement

of the suit, and either before or after judgment, apply to the Court for a temporary injunction to

restrain the defendant from committing the breach of contract or injury complained of or any

breach of contract or injury of a like kind arising out of the same contract or relating to the same

property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the

injunction keeping an account giving security or other wise, as the Court thinks fit.

(3) In case of disobedience, or breach of any such terms, the Court granting an injunction

may order the property of the person guilty of such disobedience of breach to be attached, and

may also order such person to be detained in …… prison for a term not exceeding six months,

unless in the meantime the Court directs his release.

(4) No attachment under this rule shall remain in force for more than one year, at the end

of which time, if the disobedience or breach continues the property attached may be sold, and out

1 Rule 13 ins. by the Small Cause Courts (Attachment of Immovable Property) Act, 1926 (1 of 1926), s.4.

475

of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance,

if any, to the party entitled thereto.

1[(2-A) An interim injunction passed under rule 1 or 2 in the absence of defendant shall not

ordinarily exceed fifteen days:

Provided that such injunction may be extended for failure of its service on the defendant

when such failure is not attributable to the plaintiff or when the defendant seeks time for defence

of application for injunction.

(2-B) The order of injunction made under rule 1 or 2 after hearing the parties or after notice

to the defendant shall cease to have effect on the expiration of six months unless extended by the

court after hearing the parties again and for reasons to be recorded for such extension:

Provided that report of such extension shall be submitted to the High Court.

2[3. Before granting injunction Court to direct notice to opposite party: The Court

shall in all cases, before granting an injunction direct notice of the application for the same to be

given to the opposite-party:

3[Provided that except in the case of sale of goods for default in payment at the stipulated

time of a debt in respect of which the goods were pledged with any bank, or where the injunction

is to be granted against Government or a Government servant as such or any statutory authority,

board or corporation set up or established by Government in any case not involving the ejectment

of any person from or the demolition of, any premises, the Court may where it appears that the

object of granting injunction would be defeted by the delay, dispense with such notice:

Provided further that the period of notice under this rule to Government or a Government

servant as such or any statutory authority, board or corporation set up or established by

Government shall not be less than two days nor exceed seven days.

4. Order for injunction may be discharged varied or set aside: Any order for an

injunction may be discharged, or varied, or set aside by the Court on application made thereto by

any party dissatisfied with such order.

4[4-A. Injunction to cease to be in force after certain period: An injunction granted by a

Court in a suit which seeks to question the validity or legal effect of any order made, proceedings

taken or act done by authority or person, which has been made, taken or done, or purports to have

been made, taken or done under any law which is specified in Part I of the First Schedule to the

Constitution or relates to, or is connected with assessment or collection of public revenues shall

cease to have effect on the expiration of a period of 5[ six months] following the day on which it

1 Omitted and ins. by Act. SIV of 1994, s.11. 2 Subs. by the civil Procedure and Limitation (Amdt.) Ordinance, 1961 (9 of 1961), s.2, for the original rule3. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For the original provisos. 4 Rule 4A ins. by the code of Civil Procedure (Amdt.) Act, 1976 (15 of 1976), s.2. 5 Subs. by the code of Civil Procedure (Amdt.) Ordinance, 1977 (25 of 1977), s.2,f or “sixty days”.

476

is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court

earlier.

Explanation - In this rule, 'public revenues' includes the dues of any bank owned by the

Federal Government or of any corporation or undertaking owned or controlled by the Federal

Government or a Provincial Government.]

5. Injuction to corpoarion binding on its officers, An injunction directed to a corporation

is binding not only on the corporation itself, but also on all members and officers of the corporation

whose personal action it seeks to restrain.

6. Power to order interim sale: The Court may, on the application of any party to a suit,

order the sale by any person named in such order, and in such manner and on such terms as it

thinks fit, of any movable property, being the subject-matter of suit or attached before judgment

in such suit, which is subject to speedy and natural decay or which for any other just and sufficient

cause it may be desirable to have sold at once.

7. Detention, preservation or inspection, etc., of subject matter of suit: (1) The Court may, on

the application of any party to a suit and on such terms as it thinks fit -

a) make an order for the detention, preservation or inspection of any property which is the

subject matter of such suit or as to which any question may arise therein;

b) for all or any of the purposes aforesaid authorise any person to enter upon or into any

land or building in the possession of any other party to such suit; and

c) for all or any of the purposes aforesaid authorise any samples to be taken or any

observation to be made or experiment to be tried, which may seem necessary or expedient

for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons

authorised to enter under this rule.

8. Applictaion for such orders to be after notice: - (1) An application by the plaintiff for

an order under rule 65 or rule 7 may be made after notice to the defendant at any time after

institution of the suit.

(2) An application by the defendant for a like order may be made after notice to the plaintiff

at any time after appearance.

9. When party may be put in immediate posession of land the subject matter of suit: Where land paying revenue to Government or a tenure liable to sale, is the subject-matter of a suit,

if the party in possession of such land or tenure neglects to pay the government revenue, or the

rent due to the proprietor of the tenure, as the case may be and such land or tenure is consequently

ordered to be sold any other party to the suit claiming to have an interest in such land or tenure

477

may upon payment of the revenue or rent due previously to the sale (and with or without security

at the discretion of the Court) be put in immediate possession of the land or tenure;

and the Court in its decree may award against the defaulter the amount so paid, with interest

thereon at such rate as the Court thinks fit, or may charge the amount so paid with interest thereon

at such rate as the Court orders in any adjustment of accounts which may be directed in the decree

passed in the suit.

10. Deposit of money etc., in Court: Where the subject matter of a suit is money or some

other thing capable of delivery and any party thereto admits that he holds such money or other

thing as a trustee for another party or that it belongs or is due to another party the Court may order

the same to be deposited in |court or delivered to such last named party with or without security

subject to the further direction of the Court.

______________________

ORDER XL

APPOINTMENT OF RECEIVERS

1. Appointment of recievers: - (1) Where it appears to the Court to be just and

convenient, the Court may by order -

a) appoint a receiver of any property, whether before or after decree;

b) remove any person from the possession or custody of the property;

c) commit the same to the possession, custody or management of the receiver; and

d) confer upon the receiver all such powers as to bringing and defending suits and for the

realization, management, protection, preservation and improvement of the property the

collection of the rents and profits thereof, the application and disposal of such rents and

profits, and the execution of documents as the owner himself has or such of those powers

as the Court thinks fit.

(2) Nothing in this rule shall authorise the court to remove from the possession or custody

of property any person whom any party to the suit has not present right so to remove.

2. Remuneration The Court may by general or special order fix the amount to be paid as

remuneration for the service of the receiver.

3. Duties: Every receiver so appointed shall -

a) furnish such security (if any as the Court thinks fit, duly to account for what he

shall receive in respect of the property;

b) submit his accounts at such periods and in such form as the Court directs;

478

c) pay the amount due from him as the Court directs; and

d) be responsible for any loss occasioned to the property by his wilful default or

gross negligence.

4. Enforcement of reciver`s duties: Where a receiver -

a) fails to submit his accounts at such periods and in such form as the Court directs,

or

b) fails to pay the amount due from him as the Court directs or

c) occasions loss to the property by his wilful default or gross negligence,

the Court may direct his property to be attached and may sell such property and may apply

the proceeds to make good any amount found to be due from him or any loss occasioned by him,

and shall pay the balance (if any) to the receiver.

5. When Collector may be appointed reciever: Where the property is land paying

revenue to the Government or land of which the revenue has been assigned or redeemed and the

Court considers that the interests of those concerned will be promoted by the management of the

Collector, the Court may, with the consent of the Collector appoint him to be receiver of such

property.

___________________

ORDER XLI

APPEALS FROMORIGINAL DECREES

1. Form of appeal. What to accompany memorandum:- (1) Every appeal shall be

preferred in the form of a memorandum signed by the appellant or his pleader and presented to the

Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a

copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the

judgment on which it is founded.

(2) Contents of memorandum: The memorandum shall set forth concisely and under

distinct heads the grounds of objection to the decree appealed from without any argument or

narrative; and such grounds shall be numbered consecutively.

2. Grounds which may be taken in appeal: The appellant shall not except by leave of the

Court, urge or be heard in support of any ground of objection not set forth in the memorandum of

appeal; but the Appellate Court in deciding the appeal, shall not be confined to the grounds of

objection set forth in the memorandum of appeal or taken by leave of the Court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the party who

may be affected thereby has had sufficient opportunity of contesting the case on that ground.

479

3. Rejection or amendment ofmemorandum: - (1) Where the memorandum of appeal is

not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the

appellant for the purpose of being amended within a time to be fixed by the Court or be amended

then and there.

(2) Where the Court rejects any memorandum it shall record the reasons for such rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints

in this behalf, shall sign or initial the amendment.

4. One of several palintiffs or defendants may obtain reversal of whole decree where

it proceeds on ground common to all: Where there are more plaintiffs or more defendants than

one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs

or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole

decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the

plaintiffs or defendants, as the case may be.

STAY OF PRECEEDINGS AND OF EXECUTION

5. Stay by Appellate Court: - (1) An appeal shall not operate as a stay of proceedings

under a decree or order, appealed from except so far as the Appellate Court may order, nor shall

execution of a decree be stayed by reason only of an appeal having been preferred from the decree;

but the Appellate Court may for sufficient cause order stay of execution of such decree.

(2) Stay by Court which passed the decree: Where an application is made for stay of

execution of an appealable decree before the expiration of the time allowed for appealing therefrom

the Court which passed the decree may on sufficient cause being shown order the execution to be

stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule(2) unless

the Court making it is satisfied,

a) that substantial loss may result to the party applying for stay of execution unless

the order is made;

b) that the application has been made without unreasonable delay; and

c) that security has been given by the applicant for the due performance of such

decree or order as may ultimately be binding upon him.

(4) Notwithstanding anything contained in sub-rule(3), the Court may make an ex parte

order for stay of execution pending the hearing of the application.

6. Security in case of order for execution of decree appealed from: - (1) Where an order

is made for the execution of a decree from which an appeal is pending, the Court which passed the

480

decree shall, on sufficient cause being shown by the appellant, require security to be taken for the

restitution of any property which may be or has been taken in execution of the decree or for the

payment of the value of such property and for the due performance of the decree or order of the

Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree

to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a

decree, and an appeal is pending from such decree, the sale shall on the application of the judgment

debtor to the Court which made the order, be stayed on such terms as to giving security or

otherwise as the Court thinks fit until the appeal is dispose of.

17. [No security to be required from the Government or a public officer in certain cases.]

Rep. By the A.O. 1937.

8. Exercise of powers in appeal from order made in execution of decree: The powers

conferred by Rules 5 and 6 shall be exercise-able where an appeal may be or has been preferred

not from the decree but from an order made in execution of such decree[:]2

3[Provided that, where such appeal has been preferred by judgment-debtor he shall be

required, unless the Court is of opinion that prima facie the appeal is one which must succeed

owing to an error apparent on the face of the record.-

a) in the case of a decree for the payment of money, to deposit the decretal amount or to

furnish security for its payment; and

b) in the case of any other decree, to furnish security for the due performance of the decree]

PROCEDURE ON ADMISSION OF APPEAL

9. Registery of memorandum of appeal: - (1) Where a memorandum of appeal is

admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of

presentation, and shall register the appeal in a book o be kept for the purpose.

(2) Register of Appeals: Such book shall be called the Register of Appeals.

10. Appellate court may require appellant to furnish security for costs:- (1) The

Appellate court may, in its discretion, either before the respondent is called upon to appear and

answer or afterwards on the application of the respondent, demand from the appellant security for

the costs of the appeal, or of the original suit, or of both:

Where appellant resides out of Pakistan: Provided that the Court shall demand such

security in all cases in which the appellant is residing out of Pakistan and is not possessed of any

1 See Order XXVII, rule 8A, supra. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. For full-stop. 3 Proviso added ibid.

481

sufficient immovable property within Pakistan other than the property (if any) to which the appeal

relates.

(2) Where such security is not furnished within such time as the Court orders the Court

shall reject the appeal.

11. Power to dismiss appeal without sending notice to Lower Court: - (1) The Appellate

Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the

appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the

appeal without sending notice to the Court from whose decree the appeal is preferred and without

serving notice on the respondent or his pleader.

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant

does not appear when the appeal is called on for hearing, the Court may make an order that the

appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose

decree the appeal is preferred.

12. Day for hearing appeal: - (1) Unless the Appellate Court dismisses the appeal under

rule 11, it shall fix a day for hearing the appeal.

(2) Such day shall be fixed with reference to the current business of the Court, the place of

residence of the respondent, and the time necessary for the service of the notice of appeal so as to

allow the respondent sufficient time to appear and answer the appeal on such day.

13. Appellate Court to give notice to Court whose decree appealed from: - (1) Where

the appeal is not dismissed under rule 11, the Appellate Court shall send notice of the appeal to

the Court from whose decree the appeal is preferred.

(2) Transmission of papers to Appellate Court Where the appeal is from the decree of a

Court, the records of which are not deposited in the Appellate Court, the Court receiving such

notice shall send with all practicable dispatch all material papers in the suit or such papers as may

be specially called for by the Appellate Court.

(3) Copies of exhibits in Court whose decree appealed from: Either party may apply in

writing to the Court from whose decree the appeal is preferred specifying any of the papers in such

Court of which he requires copies to be made; and copies of such papers shall be made at the

expense of and given to the applicant.

14. Publication and service of notice of day for hearing appeal: - (1) Notice of the day

fixed under rule 12 shall be affixed in the Appellate Court-house and a like notice shall be sent by

the Appellate Court to the Court from whose decree the appeal is preferred and shall be served on

the respondent or on his pleader in the Appellate court in the manner provided for the service on a

defendant of a summons to appear and answer; and all the provisions applicable to such summons

and to proceedings with reference to the service thereof shall apply to the service of such notice.

482

(2) Instead of sending the notice to the Court from whose decree the appeal is preferred,

the Appellate court may itself cause the notice to be served on the respondent or his pleader under

the provisions above referred to.

15. Contents of notice: The notice to the respondent shall declare that if he does not appear

in the Appellate Court on the day so fixed the appeal will be heard ex parte.

PROCEDURE ON HEARING

16. Right to begin:- (1) On the day fixed or on any other day to which the hearing may be

adjourned, the appellant shall be heard in support of the appeal.

(2) The Court shall then if it does not dismiss the appeal at once, hear the respondent against

the appeal and in such case the appellant shall be entitled to reply.

17. Dismissal of appeal for appellant`s default: - (1) Where on the day fixed, or on any

other day to which the hearing may be adjourned, the appellant does not appear when the appeal

is called on for hearing the Court may make an order that the appeal be dismissed.

(2) Hearing appeal ex-parte: Where the appellant appears and the respondent does not

appear, the appeal shall be heard ex parte.

18. Dismissal of appeal where notice not served in consequences of appellant`s failure

to deposit costs: Where on the day fixed or on any other day to which the hearing may be

adjourned it is found that the notice to the respondent has not been served in consequence of the

failure of the appellant to deposit within the period fixed the sum required to defray the cost of

serving the notice the Court may make an order that the appeal be dismissed

Provided that no such order shall be made although the notice has not been served upon

the respondent, if on any such day the respondent appears when the appeal is called on for hearing.

19. Readmission of appeal dismissed for default: - 1[(1)] Where an appeal is dismissed

under rule 11, sub-rule (2) of rule 17 or rule 18 the appellant may apply to the Appellate Court for

the re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause

from appearing when the appeal was called on for hearing or from depositing the sum so required,

the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

(2) The provisions of section 5 of the Limitation Act 1908 (IX of 1908) shall apply to an

application for re-admission of an appeal dismissed under sub-rule (2) of rule 11 or sub-rule (1) of

rule 17.

20. Power to adjourn hearing and direct person appearing interested to be made

respodents: Where it appears to the Court at the hearing that any person who was a party to the

1 Re-numbered as sub-rule (1) of that rule by the Code of Civil Procedure (Amendt.) Act, 1990 (4 of 1990), s.2.

483

suit in the Court from whose decree the appeal is preferred, but who has not been made a party to

the appeal is interested in the result of the appeal the Court may adjourn the hearing to a future day

to be fixed by the Court and direct that such person be made a respondent.

21. Rehearing on application of respondent against whom ex-parte decree made: - (1)

Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may

apply to the Appellate court ro re-hear the appeal; and if he satisfies the Court that the notice was

not duly served or that he was prevented by sufficient cause from appearing when the appeal was

called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as

it thinks fit to impose upon him.

1[(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to

applications under sub-rule (1).

22. Upon hearing respondent may be object to decree as if he had preferred separate

appeal:- (1) Any respondent though he may not have appealed from any part of the decree, may

not only support the decree on any of the grounds decided against him in the Court below but take

any cross-objection to the decree which he could have taken by way of appeal provided he has

filed such objection in the Appellate Court within one month from the date of service on him or

his pleader of notice of the day fixed for hearing the appeal, or within such further time as the

Appellate Court may see fit to allow.

(2) Form of objection and provisions applicable thereto: Such cross-objection shall be

in the form of a memorandum and the provisions of rule 1, so far as they relate to the form and

contents of the memorandum of appeal shall apply thereto.

(3) Unless the respondent files with the objection a written acknowledgment from the party

who may be affected by such objection or his pleader of having received a copy thereof, the

Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection,

on such party or his pleader at the expense of the respondent.

(4) Where in any case in which any respondent has under this rule filed a memorandum of

objection , the original appeal is withdrawn or is dismissed for default, the objection so filed may

nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to pauper appeals shall, so far as they can be made applicable

apply to an objection under this rule.

23. Remand of case by Appellate Court Where the Court from whose decree an appeal

is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal,

the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what

issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and

order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit

under its original number in the register of civil suits, and proceed to determine the suit; and the

1 Sub-rule (2) added ibid.

484

evidence (if any) recorded during the original trial shall subject to all just exceptions be evidence

during the trial after remand.

24. Where evidence on record sufficient . Appellate Court may determine finally: Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce

judgment the Appellate Court may after resettling the issues if necessary finally determine the suit,

notwithstanding that the judgment of the court from whose decree the appeal is preferred has

proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

25. Where Appellate Court may frame issues and refer them for trial to Court whose

decree appealed from: Where the court from whose decree the appeal is preferred has omitted

to frame or try any issue, or to determine any question of fact which appears to the Appellate Court

essential to the right decision of the suit upon the merits the Appellate Court may if necessary,

frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred

and in such case shall direct such Court to take the additional evidence required.

And such court shall proceed to try such issues, and shall return the evidence to the

appellate Court together with its findings thereon and the reasons therefore.

26. Findings and evidence to be put on record. Objections to findings: - (1) Such

evidence and findings shall from part of the record in the suit; and either party may, within a time

to be fixed by the Appellate Court, present a memorandum of objections to any findings.

(2) After the expiration of the period so fixed for presenting such memorandum the

Appellate Court shall proceed to determine the appeal.

27. Production of additional evidence in Appellate Court - (1) The parties to an appeal

shall not be entitled to produce additional evidence, whether oral or documentary in the appellate

Court, But if -\

a) the Court from whose decree the appeal is preferred has refused to admit evidence which

ought to have been admitted or,

b) The Appellate Court requires any document to be produced or any witness to be

examined to enable it to pronounce judgment, or for any other substantial cause,

The Appellate Court may allow such evidence or document to be produced or witness to

be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court the

Court shall record the reason for its admission.

28. Mode of taking additional evidence: Wherever additional evidence is allowed to be

produced the Appellate Court may either take such evidence or direct the Court from whose decree

485

the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when

taken to the Appellate Court.

29. Points to be defined and recorded: Where additional evidence is directed or allowed

to be taken the Appellate Court shall specify the points to which the evidence is to be confined and

record on its proceedings the points so specified.

JUDGMENT IN APPEAL

30. Judgment when and where pronounced: The Appellate Court after hearing the parties or

their pleaders and referring to any part of the proceedings whether on appeal or in the Court from

whose decree the appeal is preferred to which reference maybe considered necessary, shall

pronounce judgment in open Court, either at once or on some future day of which notice shall be

given to the parties or their pleaders.

31. Contents, date and signature of judgment: The judgment of the Appellate Court shall be in

writing and shall state -

a. the points for determination;

b. the decision thereon;

c. the reasons for the decision; and

d. where the decree appealed from is reversed or varied, the relief to which the

appellant is entitled;

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges

concurring therein.

32. What judgment may direct: The judgment may be for confirming, varying or

reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to

the form which the decree in appeal shall take, or as to the order to be made in appeal the Appellate

Court may pass a decree or make an order accordingly.

33. Power of Court of Appeal. The Appellate Court shall have power to pass any decree

and make any order which ought to have been passed or made and to pass or make such further or

other decree or order as the case may require, and this power may be exercised by the Court

notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of

all or any of the respondents or parties although such respondents or parties may not have filed

any appeal or objection:

486

1[Provided that the Appellate Court shall not make any order under section 35-A in

pursuance of any objection on which the Court from whose decree the appeal is preferred has

omitted or refused to make such order.

Illustration

A claims a sum of money as due to him form X or Y, and in a suit against both obtains a

decree against X, X appeals and A and Y are respondents. The Appellate Court decides in favour

of X. It has power to pass a decree against Y.

34. Dissen to be recorded: Where the appeal is heard by more Judges that one, any Judge

dissenting from the judgment of the Court shall state in writing the decision or order which he

thinks should be passed on the appeal and he may state his reasons for the same.

DECREE IN APPEAL

35. Dtae and contents of decree: - (1) The decree of the Appellate Court shall bear date

the day on which the judgment was pronounced.

(2) The decree shall contain the number of the appeal the names and descriptions of the

appellant and respondent and a clear specification of the relief granted or other adjudication made.

(3) The decree shall also state the amount of costs incurred in the appeal and by whom or

out of what property, and in what proportions such costs and the costs in the suit are to be paid.

(4) The decree shall be signed and dated by the Judge or Judges who passed it:

Judge dissenting from judgment need not sign decree: Provided that where there are

more Judges than one and there is a difference of opinion among them, it shall not be necessary

for any Judge dissenting from the judgment of the Court to sign the decree.

36. Copies of judgment and decree to be furnished parties: Certified copies of the

judgment and decree in appeal shall be furnished to the parties on application to the Appellate

Court and at their expense.

37. Certified copy of decree to be sent to Court whose decree appealed from: A copy

of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in

this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed

with the original proceedings in the suit and an entry of the judgment of the Appellate Court shall

be made in the register of civil suits.

__________________

ORDER XLII

1 Proviso ins. by the civil Procedure (Amdt.) Act, 1922 (9 of 1922), which under s. 1(2) thereof may be brought into force in any Province by the

Provincial Government on any specified dat. The Act has been brought into force in the Punjab, and Sind.

487

AAPPEALS FROM APPELLATE DECREES

1. Procedure: The rules of Order XLI shall apply so far as may be to appeals from

Appellate decrees.

___________________

ORDER XLIII

APPEALS FROM ORDERS

1. Appeals from Order: An appeal shall lie from the following orders under the

provisions of section 104, namely:-

a) an order under rule 10 of Order VII returning a plaint to be presented to the proper

Court;

b) an order under rule 10 of Order VIII pronouncing judgment against a party;

c) an order under rule 9 of Order IX rejecting an application (in a case open to

appeal) for an order to set aside the dismissal of a suit;

d) an order under the rule 13 of Order IX rejecting an application (in a case open to

appeal) for an order to set aside a decree passed ex parte;

e) an order under rule 4 of Order X pronouncing judgment against a party;

f) an order under rule 21 of Order XI

g) an order under rule 10 of Order XVI pronouncing judgment against a party;

h) an order under rule 20 of Order XVI pronouncing judgment against a party;

i) an order under rule 34 of Order XXI on an objection to the draft of a document or

of an endorsement;

1[ii) an order under rule 62 or rule 103 of Order XXI relating to the right title or

interest of the claimant or objector in attached property;

j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set

aside a sale;

1 Cl. (ii), added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

488

k) an order under rule 9 of Order XXII refusing to set aside the abatement or

dismissal of a suit;

l) an order under rule 10 of Order XXII giving or refusing to give leave;

m) an order under rule 3 of Order XXIII recording or refusing to record an agreement

compromise or satisfaction;

n) an order under rule 2 of Order XXV rejecting an application (in a case open to

appeal) for an order to set aside the dismissal of a suit;

o) an order 1[under rule 2 rule 4 or rule 7] of Order XXIV refusing to extend the time

for the payment of mortgage money;

p) an order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;

q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;

r) an order under rule 1, rule 2 rule 4 or rule 10 of Order XXXIX;

s) an order under rule 1 or rule 4 of Order XL;

t) an order of refusal under rule 19 of Order XLI to readmit or under rule 21 of

Order XLI to re-hear an appeal;

u) an order under rule 23 of Order XLI remanding a case where an appeal would lie

from the decree of the Appellate Court;

v) an order made by any Court other than a High Court refusing the grant of a

certificate under rule 6 of Order XLV;

w) an order under rule 4 of Order XL:VII granting an application for review.

2. Procedure: The rules of Order XLI shall apply so far as may be to appeals from orders.

23. Notice before presentation appeal: - (1) Where an appeal against an order is preferred

during the pendency of a suit the appellant shall before presenting the appeal give notice of such

appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of

appeal alongwith a copy of the order appealed against either personally or through registered post

acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal

for the record of the appellate Court.

1 Subs. by the Transfer of Property (Amdt.) Supplementary Act, 1930 (16 of 1930), s.2, for “under rule 3 or rule 8”. 2 New sub-rules 3 and 4 added by the Code of Civil Procedure (Amdt.), Ordinance, 1980 (10 of 1980), s.14.

489

(2) On receipt of notice referred to in sub-rule (1) the respondent may with the permission

of the Court appear before it and contest the appeal and may be awarded costs on dismissal of the

appeal in limine.

4. Application of rule 3 The provisions of rule 3 shall mutatis mutandis, apply to all

applications filed before an appellate Court during the pendency of a suit.

____________________

ORDER XLIV

PAUPER APPEALS

1. Who may appeal as pauper: Any person entitled to prefer an appeal who is unable to

pay the fee required for the memorandum of appeal may present an application accompanied by a

memorandum of appeal and may be allowed to appeal as a pauper subject in all matters including

the presentation of such application to the provisions relating to suits by paupers in so far as those

provisions are applicable:

Procedure on application for admission of appeal: Provided that the Court shall reject

the application unless upon a perusal thereof and of the judgment and decree appealed from it sees

reason to think that the decree is contrary to law or to some usage having the force of law or is

otherwise erroneous or unjust .

2. Inquiry into the pauperism: The inquiry into the pauperism of the applicant may be

made either by the Appellate Court or under the orders of the Appellate Court by the Court from

whose decision the appeal is preferred:

Provided that if the applicant was allowed to sue or appeal as a pauper in the Court fro

whose decree the appeal is preferred no further inquiry in respect of his pauperism shall be

necessary unless the Appellate Court sees cause to direct such inquiry.

____________________

490

ORDER XLV

APPEALS TO THE 1[SUPREME COURT]

2[1. “Decree” defined: In this Order unless there is something repugnant in subject or

context the expression "decree" shall include a judgment or a final Order.

2. Application to Court whose decree complianed of: Whoever desires to appeal to 3[the Supreme Court] shall apply by petition to the Court whose decree is complained of.

3. Certificate as to value or fitness:- 4[(1) A petition made under rule 2 shall briefly state

the grounds of appeal and pray for a certificate.

(2) Upon receipt of such petition the Court shall direct notice to be served on the opposite-

party to show cause why the said certificate should not be granted[:]5

6[Provided that no notice shall be directed to be served on or given to the opposite party or

to the legal representative of a deceased opposite party in a case where such opposite party did not

appear either at the hearing in the Court whose decree is complained of or at any proceedings

subsequent to the decree of that Court.

7[(3) The Court may if the opposite party in response to the notice issued under sub-rule

(2) appears after hearing both the parties or if the opposite party does not appear in response to

such notice then after hearing the party making the petition, grant or refuse the certificate

(4) If on the date fixed for the hearing the party making the petition does not appear and

the opposite party appears in response to such notice or if both the parties do not appear on such

date the petition shall be dismissed.

4. Cosolidation of suitts: For the purposes of pecuniary valuation suits involving

substantially the same questions for determination and decided by the same judgment may be

consolidated; but suits decided by separate judgments shall not be consolidated notwithstanding

that they involve substantially the same questions for determination.

5. Remission of dispute to Court of first instance: In the event of any dispute arising

between the parties as to the amount or value of the subject matter of the suit in the Court of first

instance or as to the amount or value of the subject matter in dispute on appeal to 8[the Supreme

Court], the Court to which a petition for a certificate is made under rule 2 may, if it thinks fit refer

such dispute for report to the Court of first instance which last mentioned Court shall proceed to

1 Subs. by A.O, 1961, Art. 2 and Sch., for “King in Council” (with effect from the 23rd March, 1956). 2 Subs. by F.A.A., 1975, Art, 2 and Sch. (with effect from the 14th August, 1973), for the original rule1. 3 Subs. by A.O, 1961, Art. 2 and Sch., for “His Majesty in council” (with effect from the 23rd March, 1956). 4 Subs. by F.A.O., 1975, Art. 2 and Sch. (with effect from the 14th August, 1973), for the original sub-rule (1). 5 Subs. ibid., for full-stop 6 Proviso added by F.A.O., 1975, Art. 2 and Sch. (with effect from the 14th August, 1973). 7 Sub-rules (3) and (4) added ibid. 8 Subs. by A.O., 1961, Art. 2 and Sch., for “His Majesty in Council” (with effect from the 23rd March, 1956).

491

determine such amount or value and shall return its report together with the evidence to the Court

by which the reference was made.

6. Effect of refusal of certificate [Omitted by Federal Adaptation of Laws Order (P.O. 4

of 1975) w.e.f. 1st August 1975]

7. Security and deposit required on grant of certificate: - (1) Where the certificate is

granted the applicant shall within 1[ninety days or such further period, not exceeding sixty days as

the Court may upon cause shown allow] from the date of the decree complained of or within six

weeks from the date of the grant of the certificate whichever is the later date, -

a) furnish security 2[in cash or in Government securities for the costs of the respondent and

b) deposit the amount required to defray the expense of translating, transcribing, indexing 3[, printing] and transmitting to 4[the Supreme Court] a correct copy of the whole record of

the suit, except –

(1) formal documents directed to be excluded by any 5[Rule of the Supreme Court] in force

for the time being

(2) papers which the parties agree to exclude;

(3) accounts or portions of accounts which the officer empowered by the Court for that

purpose considers unnecessary and which the parties have not specifically asked to be included;

and

(4) such other documents as the High Court may direct to be excluded;

Provided that the Court at the time of granting the certificate may after hearing any opposite

party who appears order on the ground of special hardship that some other form of security may

be furnished;

Provided further that no adjournment shall be granted to an opposite party to contest the

nature of such security.

6* * * * *

8. Admission of appeal and procedure thereon: Where such security has been furnished

and deposit made to the satisfaction of the Court the Court shall -

1 Subs. by the Indian Limitation and Code of Civil Procedure (Amdt.) Act, 1920 (26 of 1920), s.3, for “six months”. 2 Ins. by the Indian Limitation and Code of Civil Procedure (Amdt.) Act, 1920 (26 of 1920), s.3. 3 Ins. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956). 4 Subs. ibid., for “His Majesty in Council” (with effect from the 23rd March, 1956). 5 Subs. ibid., for “Order of His Majesty in Council” (witheffect from the 23rd March, 1956). 6 Sub-section (2), as amended by the Federal Laws (Revision and Declaration) Act 1951 (26 of 1951), s.4 and Third Sch., has been omitted by

A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956).

492

a) declare the appeal admitted

b) give notice thereof to the respondent

c) transmit to [the Supreme Court] under the seal of the Court a correct copy of the said

record except as aforesaid and

d) give to either party one or more authenticated copies of any of the papers in the suit on

his applying therefore any paying the reasonable expenses incurred in preparing them.

9. Revocation of acceptance of security: At any time before the admission of the appeal

the Court may upon cause shown revoke the acceptancy of any such security and make further

directions thereon.

9.-A.Power to dispense with notices in case of deceased parties [Omitted by Federal

Adaptation of Laws Order (P.O. 4 of 1975) with effect from 1st August 1975.]

10. Power to order further security or payment: Where at any time after the admission

of an appeal but before the transmission of the copy of the record except as aforesaid to the

Supreme Court wuch security appears inadequate.

Or further payment is required for the purpose of translating, transcribing, printing,

indexing or transmitting the copy of the record except as aforesaid,

The Court may order the appellant to furnish within a time to be fixed by the Court other

and sufficient security or to make within like time the required payment.

11. Effect of failure to comply with order: Where the appellant fails to comply with such

order, the proceedings shall be stayed.

And the appeal shall not proceed without an order in this behalf of 1[the Supreme Court],

And in the meantime execution of the decree appealed from shall not be stayed.

12. Refund of balance deposit: When the copy of the record except as aforesaid, has been

transmitted to 2[the supreme Court] the appellant may obtain a refund of the balance (if any) of the

amount which he has deposited under rule 7.

13. Powers of Court of pending appeal: - (1) Notwithstanding the grant of a certificate

for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless

the Court otherwise directs.

1 Subs. by A.O., 1961, Art. 2 and Sch., for “His Majesty in Council” (with effect from the 23rd March, 1956). 2 Subs. by A.O., 1961. Art. 2 and Sch. For “His Majesty in Council” (with effect from the 23rd March, 1956).

493

(2) The Court may, if it thinks fit, on special cause shown by any party interested in the

suit, or otherwise appearing to the Court, -

a) impound any movable property in dispute or any part thereof, or

b) allow the decree appealed from to be executed, taking such security from the respondent

as the Court thinks fit for the due performance of any order which the Supreme Court may

make on the appeal, or

c) stay the execution of the decree appealed from taking such security from the appellant

as the Court thinks fit for the due performance of the decree appealed from or of any order

which the Supreme Court may make on the appeal, or

d) place any party seeking the assistance of the Court under such conditions or give such

other direction respecting the subject-matter of the appeal, as

it thinks fit, by the appointment of a receiver or otherwise.

14. Increase on security found inadequate: - Where at any time during the pendency of

the appeal the security furnished by either party appears inadequate, the Court may, on the

application of the other party, require further security.

(2) in default of such further security being furnished as required by the Court, -

(a) if the original security was furnished by the appellant, the Court may, on the application

of the respondent, execute the decree appealed from as if the appellant had furnished no

such security;

(b) if the original security was furnished by the respondent, the Court shall, so far as may

be practicable, stay the further execution of the decree, and restore the parties to the

position in which they respectively were when the security which appears inadequate was

furnished, or give such direction respecting the subject-matter of the appeal as it thinks fit.

15. Procedure to enforce orders of the Supreme Court: - (1) Whoever desires to obtain

execution of any order of 1[the Supreme Court] shall apply by petition, accompanied by a certified

copy of the decree passed or order made in appeal and sought to be executed, to the Court from

which the appeal to the Supreme Court was preferred.

(2) Such Court shall transmit the order of the Supreme Court to the Court which passed the

first decree appealed from, or to such other Court as the Supreme Court by such order may direct,

and shall (upon the application of either party) give such directions as may be required for the

execution of the same; and the Court to which the said order is so transmitted shall execute it

1 Subs. by A.O., 1961, Art. 2 andSch., for “His Majesty in Council” (with effect from the 23rd March, 1956).

494

accordingly, in the manner and according to the provisions applicable to the execution of its

original decrees.

1* * * * * *

2[(4) Unless the Supreme Court is pleased otherwise to direct, no order of the Supreme

Court shall be inoperative on the ground that no notice has been served on or given to the legal

representative of any deceased opposite-party or deceased respondent in a case where such

opposite-party or respondent did not appear either at the hearing in the Court whose decree was

complained of or at any proceedings subsequent to the decree of that Court but such order shall

have the same force and effect as if it had been made before the death took place.]

16. Appeal from order relating to execution: The orders made by the Court which

executes the order of 3[the Supreme Court], relating to such execution, shall be appeal able in the

same manner and subject to the same rules as the orders of such Court relating to the execution of

its own decrees.

417. [Appeals to the Federal Court]. Omitted by the Federal Court Act 1941 (XXI of

1941), S.2.

____________________

ORDER XLVI

REFERENCE

1. Reference of question to High Court: Where before or on the hearing of a suit or an

appeal in which the decree is not subject to appeal, or where, in the execution of any such decree,

any question of law or usage having the force of law arises on which the Court trying the suit or

appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own

motion or on the application of any of the parties, draw up a statement of the facts of the case and

the point on which doubt is entertained and refer such statement with its own opinion on the point

for the decision of the High Court.

2. Court may pass decree contigent upon decision of High Court: The Court may either

stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree

or make an order contingent upon the decision of the High Court on the point referred;

But no decree or order shall be executed in any case in which such reference is made until

the receipt of a copy of the judgment of the High Court upon the reference.

3. Judgment of High Court to be transmitted and case disposed of accordingly: The

High Court, after hearing the parties if they appear and desire to be heard, shall decide the point

1 Sub-rule (3) omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch., which was previously

amended by various enacments, from time to time. 2 Sub-section (4) ins. by the Indian Limitation and Code of Civil Procedure (Amdt.) Act, 1920 (26 of 1920), s.5. 3 Subs. by A.O., 1961, Art. 2 and Sch., for “His Majesty in Council” (with effect from the 23rd March, 1956). 4 This section was ins. by A.O., 1937.

495

so referred, and shall transmit a copy of its judgment, under the signature of the Registrar, to the

Court by which the reference was made; and such Court shall, on the receipt thereof, proceed to

dispose of the case in conformity with the decision of the High Court.

4. Costs of refernce to High Court: The costs (if any) consequent on a reference for the

decision of the High Court shall be costs in the case.

5. Power to alter etc., decree of Court making reference: Where a case is referred to the

High Court under rule 1, the High Court may return the case for amendment, and may alter, cancel

or set aside any decree or order which the Court making the reference has passed or made in the

case out of which the reference arose, and make such order as it thinks fit.

6. Power to refer to High Court questions as jursidiction in small causes:- (1) Where

at any time before judgment a Court in which a suit has been instituted doubts whether the suit is

cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the

High Court, with a statement of its reasons for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Court either to

proceed with the suit or to return the plaint for presentation to such other Court as it may in its

order declare to be competent to take cognizance of the suit.

7. Power to District Court to submit for revision porceedings had under mistake as to

jurisdiction in small causes:- (1) Where it appears to a District Court that a Court subordinate

thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes

or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or if required by a

party shall submit the record to the High Court with a statement of its reasons for considering the

opinion of the subordinate Court with respect to the nature of the suit to be erroneous.

(2) On receiving the record and statement the High Court may make such order in the case

as it thinks fit.

(3) With respect to any proceedings subsequent to decree in any case submitted to the High

Court under this rule, the High Court may make such order as in the circumstance appears to it to

be just and proper.

(4) A Court subordinate to a District Court shall comply with any requisition which the

District Court may make for any record or information for the purpose of this rule.

___________________

ORDER XLVII

REVIEW

1. Application for review of judgment:- (1) Any person considering himself aggrieved -

496

(a) by a decree or order from which an appeal is allowed, but from which no appeal

has been preferred.

(b) By a decree or order from which no appeal is allowed, or

(c) By a decision on a reference from a Court of Small Causes,

And who, from the discovery of new and important matter or evidence which, after the

exercise

of due diligence, was ot within his knowledge or could not be produced by him at the time

when the decree was passed or order made, or on account of some mistake or error apparent on

the face of the record, or for any other sufficient reason, desires to obtain a review of the decree

passed or order made against him, may apply for a review of judgment to the Court which passed

the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment

notwithstanding the pendency of an appeal by some other party except where the ground of such

appeal is common to the applicant and the appellant, or when, being respondent, he can present to

the Appellate Court the case on which he applies for the review.

2. To whom application for review may be made: An application for review of a decree

or order of a Court, not being a High Court, upon some ground other than the discovery of such

new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or

arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge

who passed the decree or made the order sought to be reviewed; but any such application may, if

the Judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-

rule (2), proviso, (a) be disposed of by his successor.

3. Form of application for review: The provisions as to the form of preferring appeal

shall apply, mutatis mutandis, to applications for review.

4. Application where rejected:- (1) Where it appears to the Court that there is not

sufficient ground for a review, it shall reject the application.

(2) Application where granted Where the Court is of opinion that the application for

review should be granted it shall grant the same;

Provided that -

(a) no such application shall be granted without previous notice to the opposite-party to

enable him to appear and be heard in support of the decree or order, a review of which is

applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or

evidence which, the applicant alleges was not within his knowledge or could not be

497

adduced by him when the decree or order was passed or made, without strict proof of such

allegation.

5. Application for review in Court consisting of two or more Judges: Where the Judge

or Judges, or any one of the Judges, who passed the decree or made the order, a review of which

is applied for, continues or continue attached to the Court at the time when the application for a

review is presented and is not or are not precluded by absence or other cause for a period of six

months next after the application from considering the decree or order to which the application

from considering the decree or order to which the application refers, such Judge or Judges or any

of them shall hear the application and no other judge or judges of the Court shall hear the same.

6. Application where rejected:- (1) Where the application for a review is heard by more

than one Judge and the Court is equally divided, the application shall be rejected.

(2) Where there is a majority the decision shall be according to the opinion of the majority.

7. Oder of rejection not appealable. Objections to order granting application:-(1) An

order of the Court rejecting the application shall not be appealable; but an order granting an

application may be objected to on the ground that the application was -

(a) in contravention of the provisions of rule 2,

(b) in contravention of the provisions of rule 4, or

(c) after the expiration of the period of limitation prescribed therefore and without

sufficient cause.

Such objection may be taken at once by an appeal from the order granting the application

or in any appeal from the final decree or order passed or made in the suit.

(2) Where the application has been rejected in consequence of the failure of the applicant

to appear, he may apply for an order to have the rejected application restored to the file, and where

it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from

appearing when such application was called on for hearing the Court shall order it to be restored

to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for

hearing the same.

(3) No order shall be made under sub rule (2) unless notice of the application has been

served on the opposite-party.

8. Registry of application garnted and order for re-hearing: When an application for

review is granted, a note thereof shall be made in the register and the Court may at once re-hear

the case or make, such order in regard to the re-hearing as it thinks fit.

498

1[9. Bars of certain applications:- (1) No application to review an order made on an

application for a review or a decree or order passed or made on a review shall be entertained.

(2) Nothing in this order shall apply to any judgment pronounced or order made by the

Supreme Court.

________________________

ORDER XLVIII

MISCELLANEOUS

1. Process to be served at expense of party issuing: - (1) Every process issued under this Code

shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise

directs.

(2) Costs of service: The court-fee chargeable for such service shall be paid within a time

to be fixed before the process is issued.

2. Orders and notices how served: All orders, notices and other documents required by

this Code to be given to or served on any person shall be served in the manner provided for the

service of summons.

3. Use of forms in appendices: The forms given in the appendices, with such variation as

the circumstances of each case may require shall be used for the purposes therein mentioned.

________________

ORDER XLIX 2*HIGH COURTS

1. Who may serve processes of High Court: Notice to produce documents, summonses

to witnesses, and every other judicial process, issued in the exercise of the original civil jurisdiction

of the High Court, and of its matrimonial, testamentary and intestate jurisdictions, except

summonses to defendants, writs of execution and notices to respondents may be served by the

attorneys in the suits, or by persons employed by them, or by such other persons as the High Court,

by any rule or order, directs.

2. Saving in respect of High Court: Nothing in this Schedule shall be deemed to limit or

otherwise affect any rules in force at the commencement of this Code for the taking of evidence

or the recording of judgment and orders by a High Court.

1 Subs. by F.A.O., 1975, Art. 2 and Sch., for the original rule 9. 2 The word “Charter” omitted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch (with effect from the 14th

October, 1955).

499

3. Application of rules: The following rules shall not apply to any High Court in the

exercise of its ordinary or extraordinary original civil jurisdiction, namely:-

1) rule 10 and rule 11, clauses (b) and (c), of Order VII,

2) rule 3 of Order X;

3) rule 2 of Order XVI;

4) rules 5,6,8,9,10,11,13,14,15 and 16 (so far as relates to the manner of taking evidence)

of Order XVIII;

5) rules 1 to 8 of Order XX; and

6) rule 7 of Order XXXIII (so far as relaxes to the making of a memorandum);

and rule 35 of Order XLI shall not apply to any High Court in the exercise of its appellate

jurisdiction.

_______________

ORDER L

PROVINCIAL SMALL CAUSE COURTS

1. Provincial Small Cause Courts: The provisions hereinafter specified shall not extend to Courts

constituted under the Provincial Small Cause Courts Act, 1887, 1* * * or to Courts exercising the

jurisdiction of a Court of Small Causes 2[under the said Act], that is to say -

a) so much of this schedule as relates to –

i) suit excepted from the cognizance of a Court of Small Causes or the execution of

decrees in such suits;

ii) the execution of decrees against immovable property or the interest of a partner

in partnership property;

ii) the settlement of issues; and

b) The following rules and Orders, -

Order II, rule 1 (frame of suit);

1 The words and figures “or under the Berar Small Cause Courts Law, 1905” which were ins. by the Berar Laws Act, 1941 (4 of 1941), s.2 and Thir Sch., have been omitted by A.O., 1949. 2 The original words “under that Act” have successively been amended by Act 4 of 1941, and A.O., 1949, to read as above.

500

Order X, rule 3 (record of examination of parties);

Order XV, except so much of rule 4 as provides for the pronouncement at once of

judgment ;

Order XVIII, rules 5 to 12 (evidence);

Order XLI to XLV (appeals);

Order XLVII, rules 2,3,5,6,7 (review);

Order LI.

__________________

ORDER LI

[PRESIDENCY SMALL CAUSE COURTS]

Omitted by the A.O., 1949.

_____________________

APPENDIX A

PLEADINGS

(1)TITLES OF SUITS

IN THE COURT OF

A.B. (add description and residence) … Plaintiff

Against

C. D. (add description and residence) … Defendant

(2) Description of Parties in Particular Cases

1[2* * *Pakistan or the Province of, as the case may be]

____________

The Advocate-General of

1 The original words “The Secretary of State for India in Council,” have successively been amended by A.O., 1937 and A.O., 1949, to read as above. 2 The words “the Federation of” have been omitted by A.O., 1961], Art. 2 andSch. (with effect from the 23rd March, 1956).

501

____________

The Collector of

____________

The State of

The A.B. Company, Limited, having its registered office at

____________

A.B., a public officer of the C.D. Company.

____________

A.B. (add description and residence) on behalf of himself and all other creditors of C.D., late of

(add description and residence).

____________

A.B. (add description and residence) on behalf of himself and all other holders

of debentures issued by the Company, Limited

____________

The Official Receiver

____________

A.B., minor (add description and residence), by C.D., (or by the Court of Wards], his next friend.

____________

A.B. (add description and residence) a person of unsound mind (or of weak mind], by C.D., his

next friend

____________

A.B, a firm carrying on business in partnership.

A.B, (add description and residence by his constituted attorney C.D (add description and

residence).

____________

A.B, (add description and residence), Shebait Thakar.

502

FORMS OF PLEADINGS

A B. (add description and residence) executor of C.D. deceased.

A.B. (add description and residence), heir of C.D., deceased.

(3) Plaints

No. 1 MONEY LENT

A.B., the above-named plaintiff, states as follows:-

1. On the_____day of_____19 he lent the defendant rupees repayable on the ____ day of ____.

2. The defendant has not paid the same except _____ rupees paid on the ____ day of ___19. (If

the plaintiff was a minor (or insane) from the ____day of _____ till the ____day of ___.

3. The plaintiff was a minor (or insane) from the day of_____.

4. Facts showing when the cause of action arose and that the court has jurisdiction).

5. The value of the subject matter of the suit for the purpose of jurisdiction is____ rupees.

6. The plaintiff claims____ rupees with interest at _____ percent from the ____ day of ___19.

NO. 2 MONEY OVERPAID (Title)

A.B. the above named plaintiff states as follows:-

1. On the____ day of ____19 the plaintiff agreed to buy and the defendant to sell_____ bars of

silver at_____annas per tola of fine silver.

2. The plaintiff procured the said bars to be assayed by E.F., who was paid by the defendant for

such assay, and E.F. declared each of the bars to contain 1.500 tolas of fine silver, and the

plaintiff accordingly paid the defendant rupees.

3. Each of the said bars contained only 1,200 tolas of fine silver, of which fact the plaintiff was

ignorant when he made the payment.

4. The defendant has not repaid the sum so overpaid.

(As in paras, 4 and 5 of Form No. 1 and Relief claimed).

503

NO. 3. GOODS SOLD AT A FIXED PRICE AND DELIVERED (Title)

A.B., the above-named plaintiff, states as follows:-

1. On the_____ day of_____ 13, E.P. sold and delivered to the defendant (one hundred barrels of

flour, or the goods mentioned in the schedule hereto annexed or sundry goods).

2. The defendant promised to pay ____ rupees for the said goods on delivery (or on the___day

of___some day before the plaint was filed].

3. He has not paid the same.

4. E.F. died on the______day of 19___ By his last_____will he appointed his brother the

plaintiff, his executor.

(As in paras 4 and 5 of Form No. 1]

7. The plaintiff as executor of E.F. claims (Relief claimed].

NO 4 GOODS SOLD AT A REASONABLE PRICE AND DELIVERED (Title)

A.B., the above-named plaintiff, states as follows:

1. On the______day of____19, plaintiff sold and delivered to the defendant (sundry articles of

house-furniture), but no express agreement was made as to the price.

2 The goods were reasonably worth ________ rupees.

3. The defendant has not paid the money.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO. 5 GOODS MADE AT DEFENDANT'S REQUEST, AND NOT ACCEPTED (Title)

A B., the above-named plaintiff, states as follows:-

1. On the_____ day of 19___, E.F. agreed with the plaintiff that the plaintiff should make for

him [tables and fifty chairs] and that E.F. should pay for the goods on delivery_____ rupees.

2. The plaintiff made the goods, and on the______day of 19___ , offered to deliver them to E.F.,

and has ever since been ready and wiling so to do.

3. E.F. has not accepted the goods or paid for them.

(As in paras 4 and 5 of Form No. 1, and Relief claimed)

504

NO. 6 DEFICIENCY UPON A RE-SALE GOODS AT AUCTION (Title)

A B , the above-named plaintiff, states as follows -

1. On the____ day of____19___ , the plaintiff put up at auction sundry (goods], subject to the condition

that all goods not paid, for and removed by the purchaser within (ten days) after the sale should be re-sold

by auction on his account, of which condition the defendant had notice.

2. The defendant purchased (one crate of crockery] at the auction at the price of____rupees.

3. The plaintiff was ready and willing to deliver the goods to the defendant on the date of the sale and for

(ten days] after.

4. The defendant did not take away the goods purchased by him nor pay for them within (ten days) after

the sale, nor afterward.

5. On the _____ day of ____19__, the plaintiff re-sold the crate of crockery, on account of the defendant,

by public auction, for____ rupees.

6. The expenses attendant upon such re-sale amounted to____ rupees.

7. The defendant has not paid the deficiency thus arising amounting to_____

rupees.

(As in paras 4 and 5 of Form No. 1, and Relief claimed).

NO. 7 SERVICES AT REASONABLE RATE (Title)

A.B. the above named plaintiff, states as follows:-

1. Between the___ day of___ 19 and the ___day of___ 19, plaintiff (executed sundry drawings, designs and

diagrams) for the defendant, at his request but no express agreement was made as to the sum to be paid for such

services.

2. The services were reasonably worth rupees.

3. The defendant has not paid the money.

(As in paras 4 and 5 of Form No. 1, and Relief claimed).

NO. 8. SERVICES AND MATERIALS AT A REASONABLE COST

(Title)

A B., the above-named plaintiff, states as follows:-

505

1. On the____ day of ___19 at the plaintiff built a house [known as No. in ], and

furnished, the materials therefore, for the defendant at his request, but no express agreement was made as to the

amount to be paid for such work and materials.

2. The work done and materials, supplied were reasonably worth ____ rupees.

3. The defendant has not paid the money.

(As in paras’s 4 and 5 Form No. 1)

NO. 9. USE AND OCCUPATION

(Title)

A.B., the above-named plaintiff, executor of the will of X. Y. deceased, states as follows:

1. That the defendant occupied the [House No, _____Street______, by permission of the said X.Y. from the day 19,

until the ___ day of 19, and no agreement was made as to payment for the use of the said premises.

2. That the use of the said premises for the said period was worth ____ rupees.

3. The defendant has not paid the money.

(As in paras 4 & 5 of Form No. 1)

4. The plaintiff as executor of Y. X. claims (Relief claimed).

NO. 10 ON AN AWARD

(Title)

A. B. the above-named plaintiff states as follows:-

1. On the ____ day of 19, the plaintiff and defendant having a difference between them concerning [a demand of the

plaintiff for the price of ten barrels of oil which the defendant refused to pay) agreed in writing to submit the

difference to the arbitration of £ F. 3rd Gd!. and the originals document is annexed hereto.

2. On the____day of ____ 19 the arbitrators awarded that the defendant should (pay the plaintiff_____ rupees).

3. The defendant has not paid the money.

[As in para 4 and 5 of Form No. 1 and relief claimed)

NO. 11 ON A FOREIGN JUDGMENT

(Title)

A. B. the above-named plaintiff states as follows:-

506

1. On the ____ day of ____ 19, at _____ in the State [or Kingdom) of _____the Court of that State [Kingdom], in a

Suit therein pending between the defendant, duly adjudged that the defendant should pay to the plaintiff ____rupees,

with interest from the said date.

2. The defendant has not paid the money.

[As in paras 4 and 5 of Form No 1, and Relief claimed]

NO. 12 AGAINST SURETY FOR PAYMENT OF RENT

(title)

A. B. the above-named plaintiff states as follows:-

1. On the____ day of___ 19 E. F. hired from the plaintiff for the term of____ years, the (House

No._____ Street____) at the annual rent of_____ rupees, payable (monthly).

2. The defendant agreed, in consideration of the letting of the premises to E.F. to guarantee the

punctual payment of the rent.

3. The rent for the month of____ 19, amounting to rupees, has not been paid.

(If, by the terms of the agreement, notice is required to be given to the surety, add:-

4. On the ___ day of ____ 19 the plaintiff gave notice to the defendant of the non-payment of the

rent and demanded payment thereof.

5. The defendant has not paid the same.

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

NO. 13 BREACH OF AGREEMENT TO PURCHASE LAND

A. B. the above named plaintiff states as follows:-

1. On the ____ day of ____ 19, the plaintiff and defendant entered into agreement and the

original document is hereto annexed.

(Or, on the______day of ___ 19,. The plaintiff and defendant mutually agreed that the plaintiff

should sell to the defendant and that the defendant should purchase from the plaintiff forty

bighas of land in the village of _____ for ______ rupees).

2. On the____day of 19, the plaintiff, being then the absolute owner of the property (and the

same being tree from encumbrances as was made to appear to the defendant], tendered to the

defendant a sufficient instrument, of transfer of the same (or, was ready and willing, and is still

ready and willing, and offered to transfer the same to the defendant by sufficient instrument on

the payment by the defendant of the sum agreed upon.

3. The defendant has not paid the money.

507

(As in paras 4 and 5 of Form No. 1 and relief claimed).

NO. 14 NOT DELIVERING GOODS SOLD

A. B. the above-named plaintiff, states as follows:-

1. On the_____day of 19, at______ the plaintiff and defendant mutually agreed that the

defendant should deliver [one hundred barrels of flour] to the plaintiff on the____ day of 19 and

that the plaintiff should pay therefore ______ rupees on delivery.

2. On the (said) day the plaintiff was ready and willing, and offered to pay the defendant the said

sum upon delivery of the goods.

3. The defendant has not delivered the goods and the plaintiff has been deprived of the profits

which would have accrued to him, from such delivery.

(As in paras 4 and 5 of Form No. 1, and Relief claimed)

NO. I5 WRONGFUL DISMISSAL

(Title)

A.B., the above-named plaintiff, states as follows:-

1. On the _____ day of___ 19, the plaintiff and defendant mutually agreed that the plaintiff

should serve the defendant as [an accountant or in the capacity of foreman, or as the case may

be) and that the defendant should employ the plaintiff as such for the term of [one year] and pay

him for his service ______rupees (monthly).

2. On the____day of ___19, the plaintiff entered upon the service of the defendant and has ever

since been, and still is, ready and willing to continue in such service during the remainder of the

said year whereof the defendant always has had notice.

3. On the ____day of 19 , the defendant wrongfully discharged the plaintiff, and refused to

permit him to serve as aforesaid or to pay him for his services.

(As in paras 4 & 5 of Form No. 1 and relief claimed).

NO. 16. BREACH OF CONTRACT TO SERVE

(Title)

A. B. the above-named plaintiff states as follows:-

On the____day of 19 , the plaintiff and defendant mutually agreed that the plaintiff should

employ the defendant at an annual salary of ______rupees, and that the defendant should serve

the plaintiff as An artist for the term of (one year). I

508

2. The plaintiff has always been ready and willing to perform his part of the agreement (and on

the___ day of____19 offered so to do).

3. The defendant [entered upon] the service of the plaintiff on the above mentioned day, but

afterwards on the____________day of 19, he refused to serve the plaintiff as aforesaid.

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

NO. 17. AGAINST A BUILDER FOR DEFECTIVE WORKMANSHIP

(Title)

A.B., the above-named plaintiff. states as follows:-

1. On the______ day of____19 , the plaintiff and defendant entered into an agreement, and, the original

document is hereto annexed. [or state the tenor of the contract].

2. The plaintiff duly performed all the conditions of the agreement on his part.

3. The defendant built the house referred to in the agreement in a bad and un-workman-like manner.

(As in paras 4 & 5 of Form NO. 1 and relief claimed)

NO.18 ON A BOND FOR THE FIDELITY OF A CLERK

(Title)

A.B, the above-named plaintiff, states as follows:-

1. On the_____day of____19 , the plaintiff took E.F. into his employment as a clerk

2. In consideration thereof, on the day of ______ 19, the defendant agreed with the plaintiff that if E.F.

should fail to account to the plaintiff for all monies, evidences of debt or other property received by him

for the use of the plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain reason

thereof, not exceeding ___rupees.

(Or 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the

plaintiff the penal sum of_____ rupees, subject to the condition that if E.F. should faithfully perform his

duties of clerk and cashier the plaintiff and should justly account to the plaintiff for all monies, evidences

of debt or other property which should be at any time held by him in trust, for the plaintiff the bond

should be void].

(Or 2. In consideration thereof on the same date the defendant executed a bond in favour of the plaintiff

and the original document is hereto annexed).

509

3. Between the day of l9, and the ___day of___19, E.F. received money and other property, amounting to

the value of ____rupees, for the use of the plaintiff for which sum he has not accounted to him, and the

same still remains due and unpaid.

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

NO. 19. BY TENANT AGAINST LANDLORD WITH SPECIAL DAMAGE

(Title)

A. B. the above-named plaintiff, states as follows:-

1. On the___day of___19, the defendant by a registered instrument let to the plaintiff the house no. _____

Street____for the term of____ years, constructing with the plaintiff that he, the plaintiff, and his

legal representatives should quietly enjoy possession thereof for the said term.

2. All conditions were fulfilled and all things happened necessary to entitle plaintiff to maintain

this suit.

3. On the___day of___19 , during the said term, E. F., who was the lawful owner of the said

house, lawfully evicted the plaintiff there from and still withholds the possession thereof from

him.

4. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place

and was compelled to expend ____rupees in moving, and lost the custom of G.H and I. J. by

such removal].

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

NO. 20 ON AN AGREEMENT OF INDEMNITY

(Title)

A. B, the above-named plaintiff states as fellows:-

1. On the_____day of___19, the plaintiff and defendant, being partners in trade under the style of

A.B and C. D, dissolved the partnership, and mutually agreed that the defendant should take and

keep all the partnership property, pay all debts of the firm and Indemnify the plaintiff against all

claims that might be upon him on account of any indebtedness of the firm

2. The plaintiff duly performed all the conditions of the agreement on his part.

3. On the___day of__19, (a Judgment was recovered against the plaintiff and defendant by E. F.

in the High Court of Judicature at____upon a debt due from the firm to E.F. and on the day

of____, the plaintiff paid____rupees (in satisfaction of the same].

510

4. The defendant has not paid the same to the plaintiff.

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

NO. 21. PROCURING PROPERTY BY FRAUD

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the____day of___19, the defendant, for the purpose of inducing the plaintiff to sell him

certain goods represented to the plaintiff that (he, the defendant, was solvent, and worth

___rupees over all his liabilities).

2. The plaintiff was thereby induced to sell (and deliver] to the defendant (dry goods) of value of

___rupees.

3. The said representations were false (or state the particular falsehoods and were then known by

the defendant to be so.

4. The has not paid for the goods (or, if the goods were not delivered). The plaintiff, in preparing

and shipping the goods and procuring their restoration, expended ____ rupees.

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

NO. 22.

FRAUDULENTLY PROCURING CREDIT TO BE GIVEN

TO ANOTHER PERSON

(Title)

A.B, the above-named plaintiff, states as follows:-

1. On the____day of____19 , the defendant represented to the plaintiff that E.F, was solvent and

in good credit, and worth rupees over all his liabilities [or that E. F., then held a responsible

situation and was in good circumstances, might safely be trusted with goods on credit].

2. The plaintiff was thereby induced to sell to E.F. (rice] of the value of___rupees (on ___months

credit].

3. The said representations were false and were then known by the defendant to be so, and were

made by him with intent to deceive and defraud the plaintiff deceive and injure the plaintiff.

4. E. F (did not pay for the said goods at the expiration of the period aforesaid, or] has not paid

for the said rice; and the plaintiff has wholly lost the same.

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

511

NO. 23. POLLUTING THE WATER UNDER THE PLAINTIFF'S LAND

(Title)

A.B., the above named plaintiff, states as follows:-

1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain land called

_______and situate in_____ and of well therein and of water in the well, and was entitled to the

use and benefit of the well and of the water therein, and to have certain springs and streams of

water which flowed and ran into the well to supply the same to flow or run without being fouled

or polluted.

2. On the ____ day of__19, the defendant wrongfully fouled and polluted the well and the water

therein and the springs and streams of water which flowed into the well.

3. In consequence the water in the well became impure and unfit for domestic and other

necessary purposes and the plaintiff and his family are deprived of the use and benefit of the well

and water.

(As in paras 4 & 5 of Form No. 1 and Relief claimed)

NO. 24 CARRYING ON A NOXIOUS MANUFACTURE.

(Title)

A. B. the above-named plaintiff, states as follows:-

1. The plaintiff is and at all the times hereinafter mentioned was possessed of certain lands called ____

situated in _____

2. Ever since the day 19 , the defendant has wrongfully caused to issue from certain smelting works

carried on by the defendant large quantities of offensive and unwholesome smoke and other vapors and

noxious matter, which spread over and upon the said lands and corrupted and settled on the surface of the

lands.

3. Thereby the trees, hedges, herbage and crops of the plaintiff growing on the lands were damaged and

deteriorated. In value, and the cattle and live stock of the plaintiff on the lands became unhealthy, and

many of them were poisoned and died.

4. The plaintiff was unable to graze the lands with cattle and sheep as he otherwise might have done, and

was obliged to remove his cattle, sheep and farming stock there from, and has been prevented from

having so beneficial and healthy a use and occupation of the lands as he otherwise would have had.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO. 25. OBSTRUCTING A RIGHT OF WAY

(Title)

A.B. the above-named plaintiff, states as follows:-

512

1. The plaintiff is, and at the time hereinafter mentioned was possessed of a house in the village

of__________.

2. He was entitled to a right of way from the house over a certain field to a public highway and back again

from the highway over the field to the house for himself and his servants (with vehicles, or on foot] at all

times of the year.

3. On the _____ day of 19 defendant wrongfully obstructed the said way, so that plaintiff could not pass

with vehicles, or on foot or in any manner along the way (and has ever since wrongfully obstructed the

same.

4. (State special damage, if any)

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO. 26. OBSTRUCTING A HIGHWAY

(Title)

1. The defendant wrongfully dug a trench and heaped up earth and stones in the public highway leading

from______ to_______ so as to obstruct it.

2. Thereby the plaintiff, while lawfully passing along the said highway, fell over the said earth and stones

(or into the said trench) and broke his arm, and suffered great pain, and was prevented from attending to

his business for a long time, and incurred expense for medical attendance.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO 27. DIVERTING A WATER-COURSE

(Title)

A. B. the above-named plaintiffs states as follows:-

1. The plaintiff is, and at the time hereinafter mentioned was, possessed of mill situated on a (stream]

known as the ________ in the village of _______ district of_______.

2. By reason of such possession the plaintiff was entitled to the flow of the stream for working the mill.

3. On the ___ day of ____ 19, the defendant, by cutting the bank of the stream, wrongfully diverted the

water thereof so that less water ran into the plaintiff's mill.

4. by reason thereof the plaintiff has been unable to grind more than sacks per day, whereas, before the

said diversion of water, he was able to grind___ sacks per.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

513

NO. 28. OBSTRUCTING A RIGHT TO USE WATER IRRIGATION

(Title)

A. B., the above-named plaintiff, states as follows:-

1. Plaintiff is and was at the time hereinafter mentioned., possessed of certain lands situate, etc. and

entitled to take and use a portion of the water of a certain stream for irrigating the said lands.

2. On the _____ day_____ l9, defendant prevented the plaintiff from taking and using the portion of the

said water as aforesaid by wrongfully obstructing and diverting the said stream.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO. 29. INJURIES CAUSED BY NEGLIGENCE ON A RAILROAD

(Title)

A. B. the above named plaintiff states as follows:-

1. On the_____ day of_____19, the defendants were common carriers of passengers by railway

between______ and______.

2. On that day the plaintiff was a passenger in one of carriages of the defendants on the said railway.

3. While he was such passenger, at ____ or near the station of_____ or between the stations of

______and ______ a collusion occurred on the said railway caused by the negligence and un-

skill-fullness of the defendant's servants, whereby the plaintiff was much injured (having leg,

broken, his head cut, etc. and state the special damage, if any as) and incurred expense for

medical attendance, and is permanently disabled from carrying on his former business as a

salesman.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

Or thus:-2. On that day the defendants by their servants so negligently and unskillfully drove and

managed an engine and a train of carriages attached thereto upon and along the defendant's

railway which the plaintiff was then lawfully crossing, that the said engine and train were driven

and struck against the plaintiff, whereby, etc., as in para 3).

NO. 30. INJURIES CAUSED BY NEGLIGENT DRIVING

(Title)

A. B. above-named plaintiff, states as follows:-

514

1. The plaintiff is a shoe-maker, carrying on business at_____. The defendant is a merchant of

__________.

2. On the _____day of____19, the plaintiff was walking 1[westward] along 2[ Bunder Road], in

the city of 3[Karachi] at above 3 O'clock in the afternoon. He was obliged to cross 4[Wood Street],

which is a Street running into Bunder Road at right angles. While he was crossing this street, and

just before he could reach the foot-pavement on the further side thereof, a carriage of the

defendant's servants, was drawn by two horses under the charge and control of the defendant's

servants, was negligently, suddenly and without any warning turned at a rapid and dangerous pace

out of Wood Street into Bunder Road. The pole of the carriage struck the plaintiff and knocked

him down, and he was much trampled by the horses.

3. By the blow and fail and trampling the plaintiff's left arm was broken and he was bruised and

injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for

four months ill and in suffering, and unable to attend to his business, and incurred heavy medical

and other expenses, and sustained great loss of business and profits.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO. 31 FOR MALICIOUS PROSECUTION

(Title)

A.B., the above-named plaintiff, states as follows:-

1. On the ______day of_____ 19, the defendant obtained a warrant of arrest from a Magistrate of

the said city or as the case may be) on a charge of ______ and the plaintiff was arrested thereon

and imprisoned for ____ days or hours and gave bail in the sum of _____ rupees to obtain his

release).

2. in so doing the defendant acted maliciously and without reasonable or probable cause.

3. On the_____ day of______19 the Magistrate dismissed the complaint of the defendant and

acquitted the plaintiff.

4. Many persons, whose names are unknown to the plaintiff, hearing of the arrest, and supposing

the plaintiff to be a criminal, have ceased to do business with him; or in consequence of the said

arrest, the plaintiff lost his situation as clerk to one E. F. or in consequence, the plaintiff suffered

pain of body and mind, and was prevented from transacting his business, and was injured in his

credit and incurred expense in obtaining his release from the said imprisonment and in defending

himself against the said complaint.

1 Subs. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s.4 and Third Sch., for “southward” 2 Subs. ibid., for “Chowringhee”. 3 Subs. ibid., for “Calcutta”. 4 Subs. ibid., for “Middleton Stree”.

515

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO. 32 MOVABLES WRONGFULLY DETAINED

(Title)

A. B. the above-named plaintiff, states as follows:-

1. On the _____ day of ______ 19, plaintiff owned (or state facts showing a right to the possession) the goods

mentioned in the schedule hereto annexed (describe the goods) the estimated value of which is _____ rupees.

2. From that day until the commencement of this suit the defendant has detained the same from the plaintiff.

3. Before the commencement of the suit, to wit, on the ____ day of____19, the plaintiff demanded the same from

the defendant but he refused to deliver them.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

6. The plaintiff claims-

(1) delivery of the said goods, or____ rupees, in case delivery cannot be had;

(2) rupees compensation for the detention thereof.

____________

The Schedule

__________

NO. 33

AGAINST A FRAUDULENT PURCHASER AND HIS TRANSFEREE

WITH NOTICE

(Title)

A. B. the above-named plaintiff, states as follows:-

1. On the_____day of______ 19, the defendant C.D. for the purpose of inducing the plaintiff to sell him certain

goods, represented to the plaintiff that was solvent, and worth rupees over all his liabilities).

2. The plaintiff was thereby induced to sell and deliver to C. D. (one hundred boxes of tea) the estimated

value of which is______rupees.

3. The said representations were false, and were then known by C.D. to be so (or at the time of making

the said representations. C.D. was insolvent, and knew himself to be so].

4. C.D. afterwards transferred the said goods to the defendant E. F. without consideration who had notice

of the falsity of the representation].

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

7. The plaintiff claims:-

(1) Delivery of the said goods, or_______ rupees in case delivery cannot be had;

516

(2) Rupees compensation the detention thereof

NO. 34 RESCISSION OF A CONTRACT ON THE GROUND OF MISTAKE

(Title)

A.B, the above-named plaintiff, states as follows:-

1. On the day of______ 19, the defendant represented to the plaintiff that a certain piece of ground

belonging to the defendant, situated at______ contained (ten bighas].

2. The plaintiff' was thereby induced to purchase the same at the price of____ rupees in the belief that the

said representation was true, and signed an agreement of which the original is hereto annexed but the

land, has not been transferred to him.

3. On the____day of ______ 19, the plaintiff paid the _____ rupees as part of the purchase-money.

4. That the said piece of ground contained in fact only (five bighas].

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

The plaintiff claims:-

(1)____ rupees with interest from the ____ day of_____ 19,

(2) that the said agreement be delivered up and cancelled.

NO. 35

AN INJUNCTION RESTRAINING WASTE

(Title)

A.B. the above named plaintiff, states as follows:-

1. The plaintiff is the absolute owner of____ (describe the property).

2. The defendant is in possession of the same under a lease from the plaintiff.

3. The defendant has (cut down a number of valuable trees, and threatens to cut down many more for the

purpose of sale) without the consent of the plaintiff.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

6. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any

further waste on the said premises.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

NO. 36. INJUNCTION RESTRAINING NUISANCE

(Title)

517

A.B., the above named plaintiff, states as follows:-

1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute owner of the house No.______

Street____ Karachi.

2. The defendant is and at all the said times was the absolute owner of a plot of ground in the same street

_____.

3. On the ____ day 19, the defendant erected upon his said plot a slaughter-house and still maintains the

same and from that day until the present time has continually caused cattle to be brought and' killed there

(and has caused the blood and offal to be thrown into the Street opposite the said house of the plaintiff.

4. In consequence the plaintiff has been compelled to abandon the, said house and has been unable to send

the same.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

7. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any

further nuisance.

NO. 37 PUBLIC NUISANCE

(Title)

A. B. the above-named plaintiff states as follows:

1. The defendant has wrongly heaped up earth and stones on a public road known as _____ street at_____

so as to obstruct the passage of the public along the same and threatens and intends, unless restrained

from so doing, to continue and repeat the said wrongful act.

2. The plaintiff has obtained the consent in writing of: the Advocate-General (or other officer appointed in

this behalf] to the Institution of the suit.

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

5. The plaintiff claims-

(1) a declaration, that the defendant is not entitled to obstruct the passage of the public along the said

public road.

(2) an injunction restraining the defendant from obstructing the passage of the public along the said public

road and directing the defendant to remove the earth and stones wrongfully heaped up as aforesaid.

NO. 38 INJUNCTION AGAINST THE DIVERSION OF WATER.COURSE

(Title)

A.B. the above-named plaintiff, states as follows:-

[As in Form No. 27)

518

The plaintiff claims that the defendant be restrained by injunction from diverting the water as aforesaid.

NO. 39. RESTORATION OF MOVABLE PROPERTY THREATENED WITH DESTRUCTION

AND FOR AN INJUNCTION

(Title)

A.B. the above-named plaintiff, states as follows -

1. Plaintiff is and at all, times hereinafter, mentioned were, the owner of (a portrait of his grand-father

which was executed by an eminent painter) which duplicate exists (or state any facts showing that the

property is of a kind that cannot be replaced by money).

2. On the_____day of _____19 he deposited the same for safe-keeping with

the defendant.

3. On the ____ day of -____ 19, he demanded the same from the defendant and offered to pay all

reasonable charges for the storage of the same.

4. The defendant refuses to deliver the same to the plaintiff and threatens to conceal, dispose of, cut or

injure the same if required to deliver it up.

5. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the

(painting).

(As in paras 4 and 5 of Form No. 1 and Relief claimed)

8. The plaintiff claims-

(1) that the defendant be restrained by injunction from disposing of, injuring or concealing the said

(painting);

(2) That he be compelled to deliver the same to the plaintiff.

NO. 40. INTERPLEADER

(Title)

A.B., the above-named plaintiff states as follows:-

1. Before the date of the claims hereinafter mentioned G. H. the plaintiff (describe the property) for safe

keeping.

2. The defendant C. D. claims the same (under an alleged assignment thereof to him from G.H).

3. The defendant E. F. also claims the same (under an order of G. H. transferring the same to him).

4. The plaintiff is ignorant of the respective rights of the defendants.

5. He has no claim upon the said property other than for charges and costs, and is ready and willing to deliver it to

such persons as the Court shall direct.

519

6. The suit is brought by collusion with either of the defendants.

(As in paras 4 and 5 of Form No. 1)

9. The plaintiff claims:-

(1) That the defendants be restrained, by injunction, from taking any proceedings against the plaintiff In relation

thereto;

(2) That they be required to Interplead together concerning their claims to the

said property;

(3) That some person be authorized to receive the said property pending such litigation.

(4) That upon delivering the same to such (person] the plaintiff be discharged from all liability to either of the

defendants In relation thereto.

NO. 41 ADMINISTRATION BY CREDITOR ON BEHAL.F OF HIMSELF AND

ALL OTHERS

(Title)

A. B. the above-named plaintiff, states as follows:-

1. E. F. late of______ was at the time of his death, and his estate still is indebted to the plaintiff in the sum of

______(here insert nature of debt and security, if any).

2. E. F. died on or about the_____day of_____by his last will ____dated the____day of he appointed C. D. his

executor (or devised his estate in trust etc. or died intestate, as the case may be].

3. The will was proved by C. D. (or letters of administration were granted etc].

4. The defendant has possessed himself of the movable (and immovable, or the proceeds of the immovable property

of E. F. and has not paid the plaintiff his debt.

(As in paras 4 and 5 of Form No. 1)

7. The plaintiff claims that an account may be taken of the movable [and immovable) property of E.F. deceased and

that the same may be administered under the decree of the court).

NO. 42. ADMINISTRATION BY SPECIFIC LEGATES

(Title)

(Alter Form No. 41 thus) (Omit paragraph 1 and commence paragraph 2) E .F., late of____

520

died on or about the____ day of_____. By his last will, dated, the day of _____ he appointed C.

D. his executor, and bequeathed to the plaintiff (here state the specific legacy].

For paragraph 4 substitutes;-

The defendant is in possession of the movable property of E.F., and, amongst other things of the

said (here name the subject of the specific bequest).

For the commencement of paragraph 7 substitute:-

The plaintiff claims that the defendant may be ordered to deliver to him the said (here name and

subject of the specific bequest) or that etc.

NO. 43 ADMINISTRATION BY PECUNIARY LEGATEE

(Title)

(Alter Form No. 41 thus)

(Omit paragraph I and substitute for paragraph 2) E. F. late of________ died on or about

the____day of_____ he appointed C. D. his executor and bequeathed to the plaintiff a legacy of

_____rupees.

In paragraph 4 substitute "legacy" for debt.

Another Form

(Title)

E. F. the above named plaintiff, states as follows:-

1. A. B. of K in the _____died on the_____ day of_____ By his last will, dated the_____ day

of_____ he appointed the defendant and M. N. (who died in the testator's lifetime) his executors,

and bequeathed his property, whether movable or immovable, to his executors in trust, to pay the

rents and income thereof to the plaintiff for his life: and after his decease, and in default of his

having a son who should attain twenty one or a daughter who should attain that age or marry, upon

trust as to his immovable property for would be the testator's heir-at-law, and as to his movable

property for the persons who would be the testator's next of kin if he had died intestate at the time

of the death of the plaintiff, and such failure of his issue as aforesaid.

2. The will was proved by the defendant on the____ day of______. The plaintiff has not been

married.

3. The testator was at his death entitled to movable and immovable property the defendant

entered into the receipt of the rents of the immovable property and got in the movable property ,

he has sold some part of the immovable property.

(As in paras 4 and 5 of Form No. 1)

6. The plaintiff claims:-

521

(1) to have the movable and immovable property of A. B. administered in this court and for that

purpose to have all proper directions given and accounts taken.

(2) Such further or other relief as the nature of the case may require.

NO. 44 EXECUTION TRUSTS

(Title)

A. B. the above-mentioned plaintiff, states as follows:-

1. He is one of the trustees under an instrument of settlement bearing date on

or about the_____ day of_____ made upon the marriage of E. F. and G. H., the father and mother of the

defendant (or an instrument of transfer of the estate and effects of E. F. for the benefit of C. D. the

defendant, and the other creditors of E. F.).

2. A. B. has taken upon himself the burden of the said trust and is in possession of (or of the proceeds of)

the movable and immovable property transferred by the said instrument.

3. C. D. claims to be entitled to a beneficial interest under the instrument.

(As in paras 4 and 5 of Form No. 1)

6. The plaintiff is desirous to account for all the rents and profits of the said immovable property (and the

Proceeds of the sale of the said or of part of the said, immovable property, or movable or the proceeds of

the sale of or of part of, the said movable property, or the profits accruing to the plaintiff as such trustee in

the execution of the said trust) and he prays that the Court will take the accounts of the said trust, and also

that the whole of the said trust estate may be administered in the Court for he benefit of C.D. , the

defendant and all other persons who may be interested in such administration in the presence of C.D. and

such other persons so interested as the Court may direct, or that C.D. may show good cause to the

contrary.

(N. B. - Where the suit is by a beneficiary, the plaint may be modeled, mutatis

mutandis on the plaint by a legatee).

NO. 45 FORECLOSURE OR SALE

(Title)

A. B. the above-named plaintiff, states as follows:-

1. The plaintiff is mortgagee of lands belonging to the defendant.

2. The following are the particulars of the mortgage:-

(a) date

(b) names of mortgagor and mortgagee

(c) sum secured

(d) rate of Interest

(e) property subject to mortgage

f) amount now due

522

(g) if the plaintiff's title is derivative stare shortly the transfers or devolution

which he claims).

(If the plaintiff is mortgagee in possession, add)

3. The plaintiff took possession of the mortgaged property on the ____ day of____ and is ready to account

as mortgagee in possession from that time.

(As in paras 4 and 5 of Form No. 1)

6. The plaintiff claims-

(1) payment or in default (sale or) foreclosure (and possession)

(Where Order 34, rule 6 applies).

2) In case the proceeds of the sale are found to be insufficient to pay the amount due to the

plaintiff, then that liberty is reserved to the plaintiff to apply for a decree for the balance.

NO. 46. REDEMPTION

(Title)

A. B, the above-named plaintiff, states as follows -

1. The plaintiff is mortgagor of lands of which the defendant is mortgagee,

2. The following are the particulars of the mortgage:-

(a) (date) ;

(b) names of mortgagor and mortgagee)

(c) (sum secured)

(d) (rate of interest)

(e) (property subject to mortgage)

(f) (If the plaintiff's title is derivative, state shortly the transfers or devolution

under which he claims).

(If the defendant is mortgagee in possession, add)

3. The defendant has taken possession (or has received the rents) of the mortgaged property.

(As in paras 4 and 5 of Form No. 1)

6. The plaintiff claims to redeem the said property and to have the sari re-conveyed to him and to

have possession thereof].

NO. 47. SPECIFIC PERFORMANCE (NO. 1)

(Title)

A.B., the above named plaintiff, states as follows:-

523

1. by an agreement dated the_____day of_____ and signed by the defendant, he contracted to

buy of (or sell to) the plaint certain immovable property therein described and referred to sum

of_______rupees.

2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but

the defendant has not done so.

3. The plaintiff has been and still is ready and, willing specifically to perform the agreement on

his part of which the defendant has had notice.

(As in paras 4 and 5 of Form No. 1)

6.: The plaintiff claims that the Court will order, the defendant specifically to perform the

agreement and to do all acts necessary to put the plaintiff in full possession of the said property to

accept a transfer and possession of the said property] and to pay the costs of the suit.

NO. 48 SPECIFIC PERFORMANCE

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the ___day of______19 the plaintiff and defendant entered into an agreement in writing and the

original document is hereto annexed.

The defendant was absolutely entitled to the immovable property described in the agreement.

2. On the____ day of____19, the plaintiff tendered ____rupees to the defendant, and demanded a transfer

of the said property by a sufficient Instrument..

3. On the____day___ 19 the plaintiff again demanded such transfer (or the defendant, refused to transfer

the same to the plaintiff.

4. The defendant has not executed any instrument of transfer.

5. The plaintiff is still ready and willing to the purchase-money of the said property to the defendant.

(As in paras 4 and 2 of Form No. 1)

8. The plaintiff claims:-

(l) That the defendant transfers the said property to the plaintiff by a sufficient instrument (following the

terms of the agreement].

(2)____rupees compensation for withholding the same.

524

NO. 49 PARTNERSHIPS

(Title)

A. B. the above-named plaintiff, states as follows -

1. He and C.D. the defendant have been for ____years [or months] past carrying on business together

under articles of partnership in writing (or under a deed, or under a verbal agreement].

2. Several disputes and differences, have arisen between the plaintiff and defendant as such partners

whereby it has become impossible to carry on the business in. partnership with advantage to the partners

(or the defendant has committed the following breaches of the partnership articles:-

(1)

(2)

(3)

(As in paras 4 and 5 of Form No. 1)

5. The plaintiff claims-.

(1) Dissolution of the partnership

(2) that accounts be taken

(3) that a receiver be appointed

(N. B.-In suits for the winding-up of any partnership, omit the claim for dissolution; and instead insert a paragraph

stating the facts of the partnership having been dissolved).

(4) Written Statements

General Defenses

Denial-The defendant denies that (set out facts).

The defendant does not admit that (set out facts).

The defendant admits that____ but says that

Protest.-The defendant denies that he is a partner and the defendant firm of the plaintiff.

The defendant denies that he made the contract alleged or any contract with the plaintiff.

The defendant denies that he contracted with the plaintiff as alleged or at all.

The defendant admits assets but not the plaintiff's claim.

The defendant denies that the plaintiff sold to him the goods mentioned in this plaint or any of them.

Limitation.-The suit is barred by article___ or article of the Second Schedule to the (Indian Limitation Act, 1877].

Jurisdiction. -The: Court has no jurisdiction to hear the suit on the ground that

(set forth the grounds).

On the day of a diamond ring was delivered by the defendant to and accepted by the plaintiff in discharge of the

alleged cause of action.

Insolvency.-The defendant has been adjudged an insolvent.

525

The plaintiff before the institution of the suit was adjudged an insolvent and the right to sue vested in the receiver.

Minority.-The defendant was a minor at the time of making the alleged contract.

Payment into court.-The defendant as to the whole claim (or as to Rs. ) part of the money claimed, (or as case may

be) has paid into court Rs. and says that this sum is enough to satisfy the p claim (or the part aforesaid.

Performance remitted -The performance of the promise alleged was remitted on the ____(date).

Rescission-The contract was rescinded by agreement between the plaintiff and defendant.

Res Judicata --- The plaintiff's claim is barred by the decree in suit (give the reference).

Estoppel.-The plaintiff is estopped from denying the truth of (insert statement as to which estopped is claimed)

because (here state the facts relied on as creating the estoppels).

Ground of defense subsequent to institution of suit.-Since the institution of the suit, that is to

say, on the day of___ (set out facts).

NO. I DEFENCE IN SUITS FOR GOODS SOLD AND DELIVERED

1. The defendant did not order the goods.

2. The goods were not delivered to the defendant.

3. The price was not Rs._____

or

4. 1.

5 . Except as to Rs._____ same as 2.

6. 3.

7. The defendant (or A.B. the defendant's agent], satisfied the claim by payment before suit to

the plaintiff (or to C. D. the plaintiff's agent] on the day of____19 .

8. The defendant satisfied the claim by payment after suit to the plaintiff on the___day of 19__

No. 2 DEFENCE IN SUITS IN BONDS

1. The bond is not the defendant's bond.

2. The defendant made payment to the plaintiff on the day according to the condition of the

bond.

3. The defendant made payment to the plaintiff after the day named and before suit of the

principal and interest mentioned in the bond.

No. 3 DEFENCE IN SUITS ON GUARANTEES

1. The principal satisfied the claim by payment before suit.

2. The defendant was released by the plaintiff giving time to the principal debtor in pursuance of

a binding agreement.

526

No. 4. DEFENCE IN ANY SUIT FOR DEBT

1. As to Rs. 200 of the money claimed, the defendant is entitled to set off for goods sold and

delivered by the defendant to the plaintiff.

Particulars are as follows:-

Rs.

1907, January, 25th ... 150

February, 1st ... 50

_____

Total 200

_____

2. as to the whole (or as to Rs.____ part of the money claimed the defendant made tender before

suit, of Rs.____ and has paid the same into Court.

No. 5. DEFENCE IN SUITS FOR INJURIES CAUSED BY I4EGL DRIVING

1. The defendant denies that the carriage mentioned in the plaint was the defendant's carriage,

and that it was under the charge or control of the defendant's servants. The carriage belonged

to______of___________.

Street 1(Karachi) livery stable keepers employed by the defendant to supply him with carriages

and horses ; and the person under whose charge and control the said carriage was, was the

servant of the said.

2. The defendant does not admit that the said carriage was turned o of 2(Wood Street) either

negligently, suddenly or without warning, or at a rapid or dangerous pace.

3. The defendant says the plaintiff might and could by the exercise of reasonable care and

diligence, have seen the said carriage approaching him, and avoided any collision with it.

4. The defendant does not admit the statements contained in the third paragraph of the plaint.

No. 6. DEFENCE IN ALL SUITS FOR WRONGS

1. Denial of the several acts [or matters] complained of.

No. 7. DEFENCE IN SUITS FOR DETENTION OF GOODS

1 Subs. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s.4 and Third Sch., for “Calcutta”. 2 Subs. ibid., for “Middleton Street”.

527

1. The goods were not the property of the plaintiff.

2. The goods were detained for a lien to which the defendant was entitled.

Particulars are as follows:-

1907, May 3rd. To carriage of the goods claimed from 1(Lahore) to (Karachi):-

45 maunds at Rs. 2 per maund

No. 8 DEFENCE IN SUITS FOR INFRINGE OF COPYRIGHT

1. The plaintiff is not the author (assignee etc.).

2. The book was not registered.

3. The defendant did not infringe.

NO. 9. DEFENCE IN SUITS FOR INFRINGEMENT TRADE MARK

1. The trade mark is not the plaintiff's.

2. The alleged trade mark is not a trade mark.

3. The defendant did not infringe.

NO. 10. DEFENCES IN SUITS RELATING TO NUISANCES

1. The plaintiff's lights are not ancient [or deny his other alleged prescriptive rights.

2. The plaintiff's lights will not be materially by the defendant's buildings].

3. The defendant denies that he or his servants pollute the water [or do what is complained of].

(if the defendant claims the right by prescription or otherwise to do what is complained of he

must say so, and must state the grounds of the claim i.e. whether by prescription, grant or what].

4. The plaintiff has been guilty of laches of which the following are particulars:-

1870. Plaintiff's mill began to work.

1871 Plaintiff came into possession.

1883 First complaint.

5. As to the plaintiff's claim for damages the defendant will rely on the above grounds of

defence, and says that the acts complained of have not produced any damage to the plaintiff. [If

other grounds are relied on, they must be stated, e.g., limitation as to post damage.].

NO. II. DEFENCE TO SUIT FOR FORECLOSURE

1. The defendant did not execute the mortgage.

1 Subs. ibid., for “Dehli”.

528

2. The mortgage was not transferred to the plaintiff (if more than one transfer is alleged say

which is denied).

3. The suit is barred by article ______of the Second Schedule to the Indian Limitation Act, 1877.

4. The following payments have been made viz.,

Rs.

(Insert late) … … 1,000

(insert date) ... … 500

5. The plaintiff took possession on the of______of_____.

6. That plaintiff released the debt on the______.

7. The defendant transferred all his interest to A. B. by a document dated_____.

NO. 12 DEFENCE TO SUIT FOR REDEMPTION

1. The plaintiff's right to redeem is barred by article____ of the Second Schedule to the Indian 1[Limitation Act, 1877].

2. The plaintiff transferred all interest in the property to A. B.

3. The defendant by a document dated the____day of transferred all his interest in the mortgaged

debt and property comprised in the mortgage to A. B.

4. The defendant never took possession of the mortgaged property or received the rents thereof.

(If the defendant admits possession for a time only, he should state the time and deny possession

beyond what he admits).

NO. 13 DEFENCE TO SUIT FOR. SPECIFIC PERFORMANCE

1. The defendant did not enter into the agreement.

2. A. B. was not the agent of the defendant (if alleged by plaintiff).

3. The plaintiff has not performed the following conditions-(Conditions)

4. The defendant did not-(alleged acts of part performance).

5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to

accept by reason of the following matter-(State why).

6. The agreement is uncertain in the following respects-(State them).

7. (Or) the plaintiff has been guilty of delay.

8. (Or) The plaintiff has been guilty of fraud (or misrepresentation).

1 Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 andSecond Sch., for

“Inidan Limitation Act, 1877 (XVB of 1877)”.

529

9. (Or) The agreement is unfair.

10. (Or) The agreement was entered into by mistake.

11. The following are particulars of (7), (8), (9), (10), (or as the case may be).

12. The agreement was rescinded under conditions of Sale No. II (or by mutual agreement).

(in cases where damages are claimed and the defendant disputes his liability to damages he must

deny the agreement or the alleged breaches, or show whatever other ground of defence he

intends to rely on e.g.. the Indian Limitation Act, accord and satisfaction, release, fraud, etc.)

NO. 14 DEFENCES IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE

1. A. B. will contained a charge of debts he died insolvent: he was entitled at his death to some

immovable property which the defendant sold and which produced the net sum of Rs.____ and

the testator had some movable property which the defendant got in, and which produced the net

sum of Rs.____.

2. The defendant applied the whole of the said sums and the sum of Rs.___ which the defendant received

from rents of the immovable property in the payment of the funeral and testamentary expenses and some

of the debts of the testator.

3. The defendant made up his accounts and sent a copy thereof to the plaintiff on the

day of____19, and offered the plaintiff free access to the vouchers to verify such accounts but he declined

to avail himself of the defendant's offer.

4. The defendant submits that the plaintiff ought to pay the costs of this Suit.

NO. 15 PROBATE OF WILL IN SOLEMN FORM

1. The said will and codicil of the deceased were not duly executed according to the provisions of the 1[Indian Succession Act, 1865 [or of the Hindu Wills Act, 1870].

2. The deceased at the time the said will and codicil respectively purport to have been executed, was not

of sound mind, memory and understanding

3. The execution of the said will and codicil was obtained by the fraud of the plaintiff (and others acting

with him whose names are at present unknown to the defendant].

4. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud, so far

as is within the defendant presents knowledge, being (state the nature of the fraud].

5. The deceased at the time of the execution of the said will (or of the contents of the residuary clauses in

the said will as the case may be).

1 See now the Succession Act, 1925 (39 of 1925).

530

6. The deceased made his true will, dated the 1st January 1873 there by appointed the defendant sole

executor thereof.

The defendant claim:-

(1) That the court will pronounce against the said, will, and codicil propounded by the plaintiff.

(2) That the court will decree probate of the will of the deceased dated the 1st January, 1873, in solemn

form of law.

NO. 16. PARTICULARS

(Title of suit)

Particulars -The following are the particulars of (here state the matters in respect of which particulars

have been ordered) delivered pursuant to the order of the____of____.

(Here set out the particulars ordered in paragraphs if necessary)

APPENDIX B

PROCESS

NO. I. SUMMONS FOR DISPOSAL OF SUIT, (O. 5, r. 1, 5)

(Title)

To

Name, description and place of residence

WHEREAS

has instituted a suit against you for________you are hereby summoned to appear in this court in person or

by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be

accompanied by some person able to answer all such questions, on the day of___19 , at___

O'clock in the noon, to answer the claim and as the day fixed for your appearance is appointed for the

final, disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose

evidence and all the documents upon which you intend to rely in support of your defence.

Take notice that, in default of your appearance on the day before mentioned the suit will be heard and

determined in your absence.

Given under my hand and the seal of the Court, this____day of____19

Judge

NOTICE-1: Should you apprehend your witnesses will not attend of their own accord, you can have a

summons from this Court to compel the attendance of any witness, and the production of any document

that you have a right to call upon the witness to produce, on applying to the Court and on depositing the

necessary expenses.

531

2. If you admit the claim, you should pay the money into Court together with the costs of the suit to avoid

execution of the decree, which may be against your person or property or both.

S1ND. Insert the following note in red ink in forms 1, 2. 3, 5 and 6:-

Also take notice that in default of your filling an address for service on or before the date mentioned you

are liable to have your defence struck out.

NO. 2. SUMMONS FOR SETTLEMENT OF ISSUES (O. 5, rr. 1, 5)

(Title)

To

(Name, description and place of residence)

WHEREAS Has instituted a suit against you for_____ you are hereby summoned to appear in this

court in person, or by a pleader duly instructed, and able to answer all material questions relating to the

suit, or who shall be accompanied by some person able to answer all such questions, on the day of___19 ,

at___O' clock in the noon, to answer the claim;

and you are directed to produce on that day all the documents upon which you intend to rely in support of

your defence 1[and to file on or before that date your written statement].

Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and

determined in your absence.

GIVEN under my hand and the seal of the Court, this____ day___of___19

Judge

NOTICE-1: Should you apprehend your witnesses will not attend of their own accord, you can have a

summons from this Court to compel the attendance of any witness, and the production of any document

that you have a right to call upon the witness to produce, on applying to the Court and on depositing the

necessary expenses.

2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to

avoid execution of the decree, which may be against your person or property, or both.

SIND Sea the Local Amendment of Sind for Form No I Appendix B

NO. 3 SUMMONS TO APPEAR IN PERSON (O. 5, r. 3) (Name, description and place of residence)

To

1 Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.

532

WHEREAS Has instituted a suit against you for____ you are hereby summoned to appear in

this court in person on the ____ day of ___ 19 at___ O'clock in ___ noon to answer the claim and you are

directed to produce on that day all the documents upon which you intend to rely in support of your

defence.

GIVEN under my hand and the seal of the court this day of ____ 19

SIND See the Local Amendment of Sind for Form NO. 1 Appendix B.

NO. 4 SUMMON IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (O. 37, r. 2)

(Title)

To,

(Name, description and place of residence)

WHEREAS _____ has institute a suit against you under Order XXXVII of the Code of Civil Procedure,

1908, for Rs. ____ balance of principal and interest due to him as the _____ of a _____of which a copy is

hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the

service hereof to, appear, and defend the suit, and within such time to cause an appearance to be entered

for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to

obtain a decree for any sum not exceeding the sum of Rs.____ and the sum of Rs._____for costs 1[together with such interest, if any, from the date of the institution of the suit as the Court may order].

Leave to appear may be obtained on an application to the Court supported by affidavit or

declaration showing that there is a defence to the suit on the merits; or that it is reasonable that

you should be allowed to appear in the suit.

GIVEN under my hand and the seal of the Court, this____day of____19

Judge

NO. 5. NOTICE TO PERSON WHO, THE COURT CONSIDERS, SHOULD BE ADDED

AS CO-PLAINTIFF (O. I, r. 10)

(Title)

To

(Name, description and place of residence)

WHEREAS_____has instituted the above suit against______for______and whereas it appears

necessary that you should be added as a plaintiff in the said suit in order to enable the Court

effectually and completely to adjudicate upon and settle all the questions involved:

Take notice that you should on or before the____day of___ 19, signify to this Court whether you

consent to be so added.

GIVEN under my hand and the seal of the Court, this ___day of_____.

Judge

SIND. The Local Amendment of Sind for Form No. I, Appendix B.

1 Ins. by the Negotiable Instruments (Interest) Act, 1926 (30 of 1926), s.4.

533

NO. 6. SUMMONS TO LEGAL REPRESENTATIVE OF A DECEASED DEFENDANT

(O. 22, r. 4)

(Title)

To

WHEREAS the plaintiff_____instituted a suit in this Court on____the___ day of___ 19 , against

the defendant who has since deceased, and whereas the said plaintiff has made an application to

this Court alleging that you are the legal representative of the said deceased, and desiring that

you be made the defendant in his stead.

You are hereby summoned to attend in this Court on the____day of____19, at_____a.m. to

defend the said suit and in default of your appearance on the day specified, the said suit will be

heard, and determined in your absence.

GIVEN under my hand and the seal of the Court, this____day____of ___19

Judge

NO 7.

ORDER OR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICI ION

OF ANOTHER COURT (O. 5, r. 21)

(Title)

WHEREAS it is stated that _______defendant/witness in the above suit is at present residing in

_____ it is ordered that a summons returnable on the____day of____19 , be

forwarded to the_____ court of_____ for service_____ on the said defendant____ witness with a

duplicate of this proceeding.

The court-fee of_____ chargeable in respect to the summons has been realized in this Court in

stamps,

Dated 19

Judge

NO. 8.

ORDERED FOR TRANSMISSION OF SUMMONS

TO BE SERVED ON A PRISONER (O. 5, r. 24)

(Title)

The Superintendent of the Jail at____

UNDER the provisions of Order V rule 24 of the Code of Civil Procedure 1908 a summons in

duplicate is herewith forwarded for service on the defendant who is a prisoner in jail. You are

requested to cause a copy of the said summons to be served upon the said defendant and to return

the original to this Court signed by the said defendant, with a statement of service endorsed

thereon by you.

Judge

NO. 9.

ORDER FOR TRANSMISSION OF SUMMONS TO BE SERVED

ON A PUBLIC SERVANT OR SOLDIER. (O. 5, rr. 27, 28)

(Title)

To

UNDER the provisions of Order V, Rule 27 (or 28 as the case may be) of the Code of Criminal

Procedure, 1908 a summons in duplicate is herewith forwarded for service on the defendant___

534

who is stated to be serving under you. You are requested to cause a copy of the said summons to

be served upon the, said defendant and to return the original to this Court signed by the said

defendant, with a statement of service endorsed thereon by you.

Judge

NO. 10

TO ACCOMPANY RETURNS OF SUMMONS OF

ANOTHER COURT (O. 5, r. 23)

(Title)

Read proceeding from the_____ forwarding ______for service on____ in Suit No.___of 19__ of

that Court.

Read Serving officer's endorsement stating that the_____ and proof of the above having been

duly taken by me on the oath of ___ and____ it is ordered that the ____be returned to

the____with a copy of this proceeding.

Judge

NOTE: This from will be applicable to process other summons, the service which may have to

be affected in the same manner.

No. 11

AFFIDAVIT OF PROCESS TO ACCOMPANY RETURN

OF A SUMMONS OR NOTICE (O. 5, r. 18)

(Title)

The affidavit of_____ son of_____, I____make oath/affirm and say as follows:-

(1) I am a process-server of this Court.

(2) On the ___ day of ____19, received a summons notice issued by the Court of ___ in Suit No.

___of 19 for service on ____.

(3) The said___ was at the time personally known to me and I served the said summons/notice

on him/her on the ___ day of ___ 19, at about___ O clock in the ___ noon at_____ by tendering

a copy thereof to him/her and requiring his/her signature to the original summons/notice.

(a)

(b)

(a) Here state whether the person served signed or refused to sign the process and in whose

presence.

(b) Signature of process-server.

or

(3) The said____ not being personally known to me _______ accompanied me to___ and pointed

out to me a person whom he stated to be the said ___ and I served the said at about____ O clock

in the __ non at ___ by tendering a copy thereof to him /her and requiring his/her signature to the

original summons/notice.

(a)

(b)

535

(a) Here state whether the person served signed or refused to sign the process and in whose

presence.

(b) Signature of process-server.

Or

(3) The said____ and the house in which he ordinarily resides being personally known to me, I

went to the said house, in___ and thereon the ___ day of __ 19 at about___ O clock in the ___

noon, I did not find the said.

(a)

(b)

(a) Enter fully and exactly the manner in which the process was served, with special reference to

Order 5 rule 15 & 17.

(b) Signature of process-server.

or.

(3) One___ accompanied me to ___ and there pointed out to me___ which he said was the house

in which ___ ordinarily resides. I did not find the said ____ there.

(a)

(b)

(a) Enter fully and exactly the manner in which the process was served, with special reference to

Order 5 rules 15 and 17.

(b) Signature of process-server.

or,

If substituted service has been ordered, state fully and exactly the manner in which the summons

was served with special reference to the terms of the order for substituted service.

Sworn/Affirmed by the said____ before me this___ day of ___ 19,

Empowered under section 139 of time Code of

Civil Procedure, 1908, to administer

the oath to deponents.

NO. 12 NOTICE TO DEFENDANT (O. 9, r. 6)

(Title)

To

WHEREAS this day was fixed for the hearing of the above Suit and a summons was Issued to

you and the plaintiff has appeared In this Court and you did not so appear, but from the return of

the Nazir it has been proved to the satisfaction of the Court that the said summons was served on

you but not in sufficient time to enable you to appear and answer on the day fixed in the said

summons;

536

Notice is hereby given to you that the hearing of the suit is adjourned this day and that the day of

19 is now fixed for the hearing of the same; in default of your appearance on the day last

mentioned the suit will be heard and determined in your absence.

GIVEN under my hand and the seal of the Court, this____ day___ of 19__

Judge

No. 13

SUMMONS TO WITNESS (O. 16, rr. 1, 5)

(Title)

To

WHEREAS your attendance is required to _____ on behalf of the ____ in the above suit, you are

hereby required (personally) to appear this court on the day ___of___ 19 ,

O'clock in the forenoon, and to bring with you (or to send to this ___ court).

A sum of Rs.___ being your traveling and other expenses and subsistence allowance for one day,

is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject

to the consequences of non-attendance laid down in rule 12 of Order XVI of the Code of Civil

Procedure, 1908.

GIVEN under my hand and the seal of the Court, this ___day____of__19

Judge

NOTICE: (1) If you are summoned only to produce a document and not to evidence, you shall be

deemed to have complied with the summons if you cause such document to be produced in this

Court on the day and hour aforesaid.

(2) If you are detained beyond the day aforesaid, a sum of Rs._____

will be tendered to you for each day's attendance beyond the day specified.

NO. 14.

PROCLAMATION REQUIRING ATTENDANCE OF WITNESS (O. 16, r. 10)

(Title)

To

WHEREAS it appears from the examination on oath of the serving officer that the summons

could not be served upon the Witness in the manner prescribed by law and whereas it appears

that the evidence of the witness is material, and he absconds and keeps out of the way for the

purpose of evading the service of the summons This proclamation is therefore, under rule 10 of

Order of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness In this

court on to the day of___19 , at___O'clock in the forenoon and from day to day until he shall

have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be

dealt with according to law.

537

GIVEN Under my hand and the seal of the Court this_____ day___of 19

Judge

538

NO. 15

PROCLAMATION REQUIRING ATTENDANCE OF WITNESS (O. 16, r. 10)

(Title)

To,

WHEREAS It appears from the examination on oath of the serving office that (he summons has

been duly served upon the witness, and whereas it appears that the evidence of the witness is

material and he has failed to attend in compliance with such. summons This proclamation is

therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued, requiring the

attendance of the witness in this Court on the____ day of___ 19, at____O'clock in the forenoon

and from day to day until he shall have leave to depart and if the witness fails to attend on the

day and hour aforesaid he will be dealt with according to law.

GIVEN under my hand and the seal of the court this____ day of ____ 19.

NO. 16

WARRANT OF ATTACHMENT OF PROPERTY OF

WITNESS (O. 16, r. 10)

(Title)

To

The Bailiff of the Court.

WHEREAS the witness ______ cited by____ has not, after the expiration of the period limited in

the proclamation issued for his attendance, appeared in Court, you are hereby directed to hold

under attachment ____property belonging to the said witness to the value of _____and to submit

a return, accompanied with an inventory thereof, within ___days.

GIVEN under my hand and the seal of the Court, this____ of___ 19

Judge

NO. 17

WARRANT OF ARREST OF WITNESS (O. 16, r. 10)

(Title)

To

The Bailiff of the Court.

WHEREAS ____ has been duly served with a summons but has failed to attend [absconds and

keeps out of the way for the purpose of avoiding service of a summons); you are hereby ordered

to arrest and bring the said ____before the Court.

You are further ordered to return this warrant on or before the ____day of___19 with an

endorsement certifying the day on and the manner in which it has been executed, or the reason

why it has not been executed.

GIVEN under my hand and the seal of the Court, this ____ day of 19___

Judge

539

NO. 18

WARRANT OF COMMITTAL (O. 16, r. 16)

(Title)

To

The Officer in charge of the Jail at____.

WHEREAS the plaintiff (or defendant) in the above-named suit has made application to his

Court that security be taken for the appearance of____ to give evidence (or to produce a

document) on the ___day of 19__ and whereas the Court has called upon the said to furnish such

security, which he has failed to do; this is to require you to receive the said___ into your custody

in the civil prison and to produce him before this Court at___on the said day and on such other

day or days as may be hereafter ordered.

GIVEN under my hand and the seal of the Court, this___ day of 19__.

NO. 19.

WARRANT OF COMMITTAL (O. 16, r. 18)

(Title)

To

The Officer in charge of the Jail at___.

WHEREAS____ whose attendance is required before this court in the above-named case to give

evidence (or to produce a document) has been arrested and brought before the Court in custody;

and whereas owing to the absence of the plaintiff (or defendant); the said cannot give such

evidence (or produce such document); and whereas the Court has called upon the said ____to

give security for his appearance on the ___day of 19__ at which he has failed to do; this is to

require you to receive the said into your custody in the civil prison and to produce him before

this Court at___ on the day of 19__.

GIVEN under my hand and the seal of the Court, this___day of 19___.

Judge

________________________

540

APPENDIX C

DISCOVERY, INSPECTION AND ADMISSION

NO.1. ORDER FOR DELIVERY OF INTERROGATORIES (O. 11, r. 1)

In the Court of Civil Suit No. ____ of 19__.

A. B. … …. …. Plaintiff

against

C.D. E.F. and G. H. … Defendants.

Upon hearing____ and upon reading the affidavit ___of___ filed the___day of 19__

It is ordered that the____ be at liberty to deliver to the interrogatories in writing, and that the

said___ do answer the interrogatories as prescribed by Order XI, rule 8, and that the costs of this

application be____.

NO. 2 INTERROGATORIES (O. 11, r. 4)

(Title as in NO. 1, supra)

Interrogatories on behalf of the above-named (plaintiff or defendant C. D.) for the examination

of the above-named (defendant E.F. and G.H. or plaintiff).

1. Did not, etc.

2. Has not, etc. -

etc. etc. etc.

(The defendant E. F. is required to answer the interrogatories numbered).

(The defendant G.H. is required to answer the interrogatories numbered).

541

NO. 3

ANSWER TO INTERROGATORIES (O. 11, r. 9)

(Title as in No. I supra)

The answer of the above-named defendant E. F. to the interrogatories for hi examination by the

above-named plaintiff.

In answer to the said interrogatories I, the above named E. F. make oath and say as follows:-

1. Enter answers to interrogatories in paragraph numbered.

2. Consecutively

3. I object to answer the interrogatories numbered____on the ground that (state grounds of

objection).

NO. 4.

ORDER FOR AFFIDAVIT AS TO DOCUMENTS (O. 11, r. 12)

(Title as in No. I supra)

Upon hearing___ do within ___ days it is ordered that the__ do within____days from the date of

this order, answer on affidavit stating which documents are or have been in his possession or

power relating to the matter in question in this suit, and that the costs of this application be

_____.

NO. 5

ORDER FOR AFFIDAVIT AS TO DOCUMENTS (O. 11, r. 13)

(Title as in No. I supra)

I. the above-named defendant C. D. make oath and say as follows:-

1. I have in my possession or power the documents relating to the, matters in question in this suit

set forth in the first and second parts of the first schedule hereto.

2. I object to produce the said documents set forth in the second part of the first schedule hereto

[state grounds of Objection].

3. I have had but have not now my possession power the document relating to the matters in

question in this suit set forth in the second schedule hereto.

4. The last-mentioned were lost in my possession or power an (state and what has become of

them and in whose possession they now are].

5. According to the best of my knowledge, information and belief I have not now, and never had,

in my possession, custody or power or in the possession, custody or power of my pleader or

agent, or in the possession, custody or power of any other person on my behalf, any account,

book of account, voucher, receipt, letter memorandum, paper or writing, or any

542

copy of or extract from any such document, or any other document whatsoever, relating to the

matters in question in this suitor any of them, or wherein any entry, has been made relative to

such matters or any of them, other than and except the documents set forth in the said first and

second schedules hereto.

NO. 6

ORDER TO PRODUCE DOCUMENTS FOR INSPECTION (O. 11, r. 14)

(Title as in No. I supra)

Upon hearing _____ and upon reading the affidavit of___ filed the___ day of___ 19, It is

ordered that the ____ do at all reasonable times on reasonable notice, produce at ____situate

at_____ the following documents, namely____ and that the___ be at liberty to inspect and peruse

the documents so produced and to make notes of their contents. In the meantime it is ordered that

all further proceedings be stayed and that the costs of this application be ___.

NO 7.

NOTICE TO PRODUCE DOCUMENTS (O. 11, r. 16)

(Title as in No. I supra)

Take notice that the [plaintiff or defendant] requires you to produce for his inspection the

following documents referred to in your [plaint or written statement or affidavit, dated the___

day of 19__.

[Describe documents required]

(X.Y. Pleader for the

To Z. Pleader for the

NO. 8

NOTICE TO INSPECT DOCUMENTS (O. 11, r. 10)

(Title as in No. I supra)

Take notice that you can inspect the documents mentioned in your notice of the___day of19___

[except the documents numbered____in that notice) at [insert place of Inspection) on___

Thursday next, the___ instant between the hours of 12 and 4 O'clock.

Or, that the [plaintiff of defendant) objects to giving you inspection of documents mentioned in

your notice of the ____ day____ 19, on the ground that (state the ground):-

543

NO. 9

NOTICE TO ADMIT DOCUMENTS (O. 12, r. 3)

(Title as in No. I supra)

Take notice that the plaintiff (or defendant) in this suit, proposes to adduce in evidence the

several documents hereunder specified, and that the same may be inspected by the defendant [or

plaintiff], his pleader or agent, at____ on_____ between the ____hours of_____ and the

defendant [or plaintiff) is hereby required within forty-eight hours from the last mentioned hour

to admit. that such of the, said documents, as are specified to be originals were respectively

written signed or executed as they purport respectively to have been , that such as are specified

as copies are true copies . and such documents as are stated to have been served, sent or

delivered was so served sent or delivered were so served, sent or delivered, respectively, saving

all just exceptions to the admissibility of all such documents as evidence in this suit

G. H. Pleader [or agent] for plaintiff (or defendant):

To E. F., pleader (or agent for defendant).

(Here describe the documents and specify as to each document whether it is original or a copy)

NO. 10.

NOTICE TO ADMIT FACTS (O. 12, r. 5)

(Title as in No. I supra)

Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to

admit, for the purposes of this suits only, the several facts respectively hereunder specified; and

the defendant [or plaintiff) is hereby required, within six days from the service of this notice, to

admit the said several facts, saying all just exceptions to the admissibility of such facts as

evidence in this suit.

G. H. pleader [or agent] for plaintiff (or defendant)

To E.F, pleader [or agent] for defendant [or plaintiff].

The facts, the admission of which is required, are:-

1. That M died on the 1st January, 1890.

2. That he died intestate.

3. That N was his only lawful son.

4. That O died on the 1st April, 1996.

5. That O was never married.

544

NO. 11. ADMISSON OF FACTS PURSUANT TO NOTICE (O. 12, r. 5)

(Title as in No. 1 supra)

The defendant (or plaintiff) in this suit, for the purposes of this suit only, hereto admits the

several facts respectively hereunder specified subject to

the qualifications or limitations, if any, hereunder specified, saving all just exceptions to the

admissibility of any such facts, or any of them, as evidence in this suit:

Provided that this admission is made for the purposes of this suit only, and is not an admission to

be used against the defendant [or plaintiff] on any other occasion or by any one other than the

plaintiff (or defendant, or party requiring the admission).

E. F. pleader (or agent) for defendant (or plaintiff)

To G, H., pleader [or agent] for plaintiff [or defendant).

Facts Admitted

Qualification or limitation if any subject to which they are

admitted

1. That M. died on the 1st

January, 1890.

2. That he died intestate

3. That N. was his lawful son

4. That O. died

5. That O. was never married. ..

1.

2.

3. But not that he was his only lawful son.

4. But not that he died on the Ist April, 1896.

5.

NO. 12 NOTICE TO PRCDUCE (GENERAL FORM) (O. 12, r. 8)

(Title as in No. I supra)

Take notice that you are hereby required to produce and show to the Court at the first hearing of

this suit all books, papers, letters, copies of letters and other writing and documents. In your

custody, possession or power containing any entry, memorandum or minute relating to the

matters in question in this Suit, and particularly.

G. H. pleader [or agent] for plaintiff (or defendant)

To E. F. pleader [or agent for defendant it (or plaintiff)

545

APPENDIX D

DECREE

NO. 1

DECREE IN ORIGINAL SUIT (O. 20, rr. 6, 7)

(Title)

Claim for ____.

This suit coming on this day for final disposal before___ in the presence____ for the plaintiff and

of___ for the defendant, it is ordered and decreed that___ and that the sum of Rs.___ be paid by

the ___ to the ___ on account of the costs of this suit, with interest thereon at the rate of per cent

___ per annum from this date to date of realization.

GIVEN under my hand and the seal of the court, this ___ day of ___ 19

Judge

Costs of Suits

Plaintiff

Defendant

1. Stamp for

plaint,.

2. Do. for power

3, Do for exhibits

4. Pleader's fee on

Rs.

5. Subsistence for

witnesses

6. Commissioner's

fee

7. Service of

process. .

Total

R

s.

A

.

P.

Stamp for power"

Do. for petition

Pleader's fee

"Subsistence for witnesses

Service of process

Commissioner's fee

Total

Rs A. P.

546

NO. 2.

SIMPLE MONEY DECREE (Section 34)

(Title)

Claim for_____

This suit coming on___ this day for final disposal before in the presence of___ for the plaintiff

and of___ for the defendant, it is ordered that the ___ do pay to the ___ the sum of Rs. ____ with

interest thereon at the rate of ___per cent per annum from___

to the date of realization of the said sum and do also pay Rs. ____ the costs of this suit, with

interest thereon at the rate of____ per cent per annum from this date to the

date of realization.

GIVEN under my hand and the seal of the Court, this_____ day of 19

Judge

Costs of Suits

Plaintiff

Defendant

547

1. Stamp for

plaint,

2. Do. for power

3, Do for exhibits

4. Pleader's fee on

Rs.

5. Subsistence for

witnesses

6. Commissioner's

fee

7. Service of

process. .

Total

R

s.

A

.

P.

Stamp for power"

Do. for petition

Pleader's fee

"Subsistence for witnesses

Service of process

Commissioner's fee

Total

Rs A. P.

548

NO. 3 PRELIMINARY DECREES FOR FORECLOSURE

Order XXXIV rule, 2 --Where accounts are directed to be taken)

(Title)

This suit coming on this_____ day. etc. It is hereby ordered and decreed that it be referred to

____as the Commissioner to take the accounts of following:-

(1) an account of what is due on this date to the plaintiff for principal and interest on his mortgage

mentioned in the plaint (such interest to be computed at the rate payable on the principal or where

no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);

(ii) an account of the income of' the mortgaged property received up to this date by the plaintiff or

by any other person by the order or for the use of the plaintiff or which without the willful default

of the plaintiff or such person might have been so received;

(iii) an account of all sums of money properly incurred by the plaintiff up to this date for, co

charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together

with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing

such rate at the same rate as is payable on the principal, or falling both such rates, at nine per cent

per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act

or omission of the plaintiff which is destructive of or permanently injurious to, the property or by

his failure to perform any of the duties imposed upon him by any law for the time being force or

by the terms of the mortgage-deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or

adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against

any sums paid by the plaintiff under clause (iii) together with interest thereon, and the balance, if

any shall be added to the mortgage money or, as the case may be, debited in reduction of the

amount to the plaintiff on account of interest on the principal sum adjusted due and thereafter in

reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commission shall present the amount to this Court

with all convenient dispatch after making all just allowances on or before the___ day of____ and

that upon such report of the Commissioner being received, it shall be confirmed and counter

signed, subject to such modifications as may be necessary after consideration of such objections

as the parties to the suit may make.

4. And it is hereby further ordered and decreed-

549

(i) that the defendant do pay into Court on or before the day of____ or any later date up to which

time for payment may be extended by the Court, such sum as the Court shall find due, and the sum

of Rs.___ for the costs of the suit awarded to the plaintiff.

(ii) that on such payment and on payment thereafter before such date as the Court may fix of such

amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges

d expenses as may be payable under rule together with such subsequent Interest as may be payable

under rule II of Order XXXIV of the first schedule to the Code of Civil Procedure, 1908, the

plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged

property in the plaint mentioned, and all such documents shall be delivered over to the defendant,

or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the

said property free from the said mortgage and clear of and from all encumbrances created by the

plaintiff or any person claiming under him or any person under whom he claims and free from all

liability whatsoever arising from the mortgage or this suit and shall if so required, deliver up to

quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default, of payment as aforesaid, the plaintiff

shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand

absolutely debarred and foreclosed of and from all right to redeem the mortgaged property

described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet

and peaceable possession of the said property, and that the parties shall at liberty to apply to Court

from time to time as they may have occasion, and on such application or otherwise the Court may

give such directions as it thinks fit.

_____________________

SCHEDULE

NO. 3A. PRELIMINARY DECREE FOR FORECLOSURE

(Order XXIV, rule 2 -Where the Court declares amount due)

(Title)

This suit coming on this__ day etc. It is hereby declared that the amount due to the plaintiff on his

mortgage mentioned in the plaint calculated up to this___ day of____as the sum Rs.____ for the

sum of Rs.___ for principal, the sum of Rs.___ for interest on the principal, the sum of Rs. ___ for

costs charges and expenses (other than the costs of the suit property incurred by the plaintiff in

respect of the mortgage security, together with interest thereon, and the sum of Rs. ___ for the

costs of the suit awarded to the plaintiff, making in all the sum of Rs. ____.

2. And it is hereby ordered and decreed as follows:-

(i) that the defendant do pay into Court on or before the day of or any

later date up to which time for payment may be extended; by the Court of the said

sum of Rs.

550

(ii) that, on such payment and on payment thereafter before such date as the Court may

fix of such amount as the Court may adjudge due in respect of such costs of the suit

and such costs, charges and expenses as may be payable under rule 10, together

with such subsequent interest as may be payable under rule 11 of Order XXXIV of

the First Schedule to thẽ Code of Civil Procedure, 1908, the plaintiff shall bring

into Court all documents in his possession or power relating to the mortgaged

property in the plaint mentioned, and all such documents shall be delivered over

the defendant, or to such person as he appoints, and the plaintiff shall, if so required,

re-convey or re-transfer the said property free from the said mortgage and clear of

and from all incumbrances created by the plaintiff or any person under whom he

claims and free from all liability whatsoever arising from the mortgage or this suit

and shall, if so required, deliver up to the defendant quiet and peaceable possession

of the said property.

3. And it is hereby further ordered and decreed that in default of payment as aforesaid the

plaintiff may apply to the Court for a final decree that the defendant shall thenceforth stand

absolutely debarred and foreclosed of and from all right to redeem the mortgaged -property in the

Schedule annexed hereto and shall if so required, deliver up to the plaintiff quiet and peaceable

pos of the said property; and that the parties shall be at liberty to apply to the Court from time to

time as the may have occasion, and on such application or otherwise the Court may give such

directions as it thinks fit.

_____________

SCHEDULE

Description of the mortgage property

No. 4

FINAL DECREE FOR FORECLOSURE

(Order XXXIV, rule 3)

(Title)

Upon reading the preliminary decree passed in this suit on the____ day of___ and further orders

(if any) dated the ____ day of____ and the application of the plaintiff dated the ______ day

of_____ for a final decree and after hearing the parties and it appearing that the payment directed

by the said decree and orders has not been made by the defendant or any person on his behalf or

any other person entitled to redeem the said mortgage;

It is hereby ordered and decreed that the defendant and all, persons claiming through or under him

be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of

and in the property in the aforesaid preliminary decree mentioned; *[(if the defendant be in

possession of the said mortgaged property that the defendant shall deliver to the plaintiff quite and

peaceable possession of the said mortgaged property).

2. And it is hereby further declared, that the whole of the liability whatsoever of the defendant up

to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby

discharged and extinguished.

551

No 5

PRELIMINARY DECREES FOR SALE

(Order XXXIV, rule 4 -Where accounts are directed to be taken)

(Title)

This suit coming on this _____ day, etc, it is hereby ordered and decided that it be referred to

_____ as the Commissioner to take the accounts following:

(i) an account of what is due on this date to the plaint for principal and interest on his mortgage

mentioned in the plaint (such interest be computed at the rate payable on the principal or where no

such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable);

"(ii) an account of the income of the mortgaged property received up to this date by the plaintiff

or by any other person by the order or for the use of the plaintiff or which without the willful

default of the plaintiff or such person might have been so received;

(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs,

charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together

with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing

such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per

cent. per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act

or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by

his failure to perform any of the duties imposed upon him by any law for the time being in force

or by the terms of the mortgage deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or

adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against

any sums paid by the plaintiff under clause (iii), together with interest thereon, and the balance, if

any, shall be added to the mortgage-money or, as the case may be, be debited in reduction "of the

amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter

in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this

Court with all convenient dispatch after making all just allowances on or before the day of.

And that upon such report of the Commissioner being received, it shall be confirmed and

countersigned, subject to such modification-as may be necessary after consideration-of such

objections as the parties to the suit may make.

4. And it is hereby further ordered and decreed-

(i) that the defendant do pay into Court on or before the day of or any later date up to which

time for payment may be extended by the Court, such sum as the Court shall find due and the

sum of Rs. for the costs of the suit awarded to the plaintiff;

552

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such

amount as the Court may adjudge due in respect of such cost of the suit, and such costs, charges

and expenses as may be payable under rule 10, together with such subsequent interest as may be

payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure,

1908, the plaintiff shall bring into Court all documents in his possession or power relating to the

mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the

defendant, or to such person as he appoints, and the plaintiff shall, if so required. re-convey or re-

transfer the said property free from the mortgage and clear of and from all in-cumbrances created

by the plaintiff or any person claiming under him or any person under whom he claims and shall,

if so required, deliver up to the defendant quiet and peace. able possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff

may apply to the Court. for a final decree for the sale of the mortgaged property; and on such

application being made the mortgaged property or a sufficient part thereof shall be directed to be

sold; and for the purposes of such sale the plaintiff shall produce before the Court, .or such officer

as it appoints, all documents in his possession or power relating to the mortgaged property.

6. And it is hereby further ordered and decreed that, the money realised by such sale shall be paid

into Court and shall be duly applied (after deduction there from of the expenses of the sale) in

payment of the amount payable to the plaintiff under this decree and under any further orders that

may be passed in this suit and in payment of any amount which the Court may adjudge due to the

plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable

under rule 10, together with such subsequent interest as may be payable under rule 11, of Order

XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any,

shall be paid to the defendant or other persons entitled to receive the same.

7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be

sufficient for 'payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall

be' at liberty (where such remedy is open to him under the terms of his mortgage and is not barred

by any law for the time being in force) to apply for a personal decree against the defendant for the

amount of the balance; and that the parties are at liberty to apply to the Court from time to time as

they may have occasion, and on such application or otherwise the Court may give such directions

at it thinks fit.

553

SCHEDULE

Description of the mortgaged property

No. 5A PRELIMINARY DECREE FOR SALE

(Order XXXIV, rule 4.-When the Court declares the amount due)

(Title)

THIS suit coming on thisday, etc. ; It is hereby declared that

he amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this day

of is the sum of

Rs. for principal, the sum of Rs.for interest on

the said principal, the sum of Rs.for costs, charges and expenses

(other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-

security, together with interest thereon, and the sum of Rs.for the costs of the suit awarded to the

plaintiff, making in all the sum of Rs.

2. And it is hereby ordered and decreed as follows;

(i) that the defendant do pay into Court on or before the

day of or any later date up to which time

for payment may be extended by the Court, the said sum of Rs.

(ii) that, on such payment and on payment thereafter before 'such date as the Court may fix of such

amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges

and expenses as may be payable under rule 10, together with such subsequent interest as may be

payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure,

1908, the plaintiff shall bring into Court all documents in his possession or power relating to the

mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the

defendant, or to such person as he appoints, and the plaintiff shall, if so required, reconvey or

retransfer the said property free from the said mortgage and clear of and from all in-cumbrances

created by the plaintiff or any person claiming under him or any person under whom he claims and

shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.

3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff

may apply to the Court for a final decree for the sale of the mortgaged property; and on such

application being made, the mortgaged property or a sufficient part thereof shall be directed to be

sold; and for the purposes of such sale the plaintiff shall produce before the Court or such officer

as it appoints all documents in his possession or power relating to the mortgaged property.

554

4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid

into Court and shall be duly applied,(after deduction there from of the expenses of the sale) in

payment of the amount payable to the plaintiff under this decree and under any further orders that

may be passed in this suit and in payment of any amount which the Court may adjudge

due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may

be payable under rule 10, together with such subsequent interest as may be payable under rule 11,

of Order XXXI V of the First Schedule to the Code of Civil Procedure, 1908, and that the balance,

if any, shall be paid to the defendant or other persons entitled to receive the same.

5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be

sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall

be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred

by any law for the time being in force) to apply for the personal decree against the defendant for

the amount of the balance; and that the parties are at liberty to apply to the Court from time to time

as they may have occasion, and on such application or otherwise the Court may give such

directions as it thinks fit.

__________________

SCHEDULE

Description of the mortgaged property

No.6

FINAL DECREE FOR SALE (Order XXXIV, rule 5 )

(Title)

Upon reading the preliminary decree passed in this suit on the day of and further orders (if

any) dated the of and the application of the plaintiff dated the day of for a final decree

and after hearing the parties and it appearing that the payment directed by the said decree and

orders has not been made by the defendant or any person on his behalf or any other person

entitled to redeem the mortgage;

It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree

mentioned or a sufficient part thereof be sold, and that for the purposes of such sale the plaintiff

shall produce before the Court or such officer as it appoints all documents in his possession or on

power relating to the mortgaged property.

2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid

into the Court and shall be duly applied (after deduction there-from of the expenses of the sale) in

payment of the amount payable to the plaintiff under the aforesaid preliminary decree and under

any further orders that may have been passed in this suit and in payment of any amount which the

Court may have adjudged due to the plaintiff for such costs of the suit including the costs of this

application and such costs, charges and expenses as may be payable under rule to. together with

such subsequent interest as may be payable under rule 11, of, Order XXXIV of the First Schedule

to the Code of Civil Procedure, 1908 and that the balance if any, shall be paid to the defendant or

other persons entitled to receive the same.

_________________

555

No.7

PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF

PAYMENT BY MORTGAGOR A DECREE FOR FORECLOSURE IS PASSED.

(Order XXXIV, rule 7.-Where accounts are directed to be taken)

(Title)

This-suit coming on this day, etc. ; It is hereby ordered and decreed that it be

referred to as the Commissioner to take...the accounts follwoing:

(i) an account of what is due on this date to the defendant for principal nd interest on the mortgage

mentioned in the plaint (such interest to be computed at the rate payable on the principal or where

no such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable);

(ii) an acconnt of the income of the mortgaged property received up to this date by the defendant

or by any other person by order or , for the use of the defendant or which without the wilful default

of the defendant or such person might have been so received;

(iii) an account of all sums of money properly incurred by the defendant up to this date for costs,

charges and expenses (other than the costs of the suit) in respect of the mortgage-security together

with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing

such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per

cent. per annum);

(iv) an account of any loss or damage caused to the mortgaged property

before this date by any act or omission of the defendant which is destructive of, or permanently

injurious to, the property or by his failure to perform any of the duties imposed upon him by any

law for the time being in force or by the terms of the mortgage-deed.

2. It is hereby further ordered and decreed that any amount received under clause (ii) or adjudged

due under clause (iv) above, together with interest thereon, shall be adjusted against any sums paid

by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be

added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to

the defendant on account of interest on the principal sum adjudged due and thereafter in reduction

or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this

Court with all convenient despatch after making all just allowances on or before the day of,

and that upon such report of the Commissioner being received, it shall be confirmed and

countersigned, subject to such modification as may be necessary after consideration of such

objections as the parties to the suit may make.

556

4. And it is hereby further ordered and decreed

(i) that the plaintiff do pay into Court on or before theday of, or any later date up to which time for

payment may be extended by the Court, such sum as the Court shaH find due and the sum ofRs.

for the costs of the suit awar

ded to the defendant;

(ii) that, on such payment, and on payment thereafter before such date as the Court may fix of such

amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges

and expenses as may be payable under rule 10, together with such subsequent interest as may be

payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil procedure, 1908,

the defendant shall bring into Court all documents in his possession or power relating to the

mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the

plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-

transfer the said property free from the said mortgage and clear of and from all incumbrances

created by the defendant or any person claiming under him or any person under whom he claims

and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required,

deliver up to the plaintiff quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the

defendant shall be at liberty to apply to the Court for a final decree that the plaintiff shaH

thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged

property described in the Schedule annexed hereto and shall, if so required, deliver up to the

defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty

to apply to the Court from time to time as they may have occasion, and on such application or

otherwise the Court may give such di rections as it thinks fit.

________________

SCHEDULE

Description of the mortgaged property

No.7A

PRE IMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMEN

BY MORTGAGOR A DECREE FOR SALE IS PASSED.

(Order XXXIV, rule 7.-Where accounts are directed to be taken)

(Title)

This suit coming on thisday, etc. ; it is hereby ordered and decreed that it be referred to as the

Commissioner to take the accounts following:

(i) an account of what is due on this date to the defendant for principal and interest on the

mortgage mentioned in the plaint

557

(such interest to be computed at the rate payable on the principal or where no such rate is fixed,

at six per cent. per annum or at such rate as the Court deems reasonable) ;

ii) an account of the income of the mortgaged property received up to this date by the defendant

or by any other person by the order or for the use of the defendant or which without the wilful

default of the defendant or such person might have been so received;

(iii) an account of an sums of money properly incurred by the defendant up to this date for costs,

charges and expenses (other than the costs of the suit) in respect of the mortgage-security together

with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing

such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per

cent. per annum) ;

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act

or omission of the defendant which is destructive of, or permanently injurious to, the property or

by his failure to perform any of the duties imposed upon him by any law for the time being in force

or by the terms of the mortgage-deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or

adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against

any sums paid by the defendant under clause (iii) together with interest thereon, and the balance,

if any, shall be added to the mortgage-money, or, as the case may be, be debited in reduction of

the amount due to the defendant on account of interest on the principal sum adjudged due and

thereafter in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shan present the account to this

Court with an convenient despatch after making all just allowances on or before the day of

, and that, upon such report of the Commissioner being received,

it shan be confirmed and countersigned, subject to such modification as may be necessary after

consideration of such objections as the parties to the suit may make.

4. And it is hereby further ordered and decreed

(i) that the plaintiff do pay into Court on or before the day of or any later date up to which

time for payment may be extended by the Court, such sum as the Court shaH find due and the

sum of Rs. for the costs of the suit awarded to the defendant;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such

amount as the Court may adjudge due in respect of such costs of the suit and such costs,

charges and expenses as may be payable under rule 10, together with such subsequent interest as

may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil

Procedure, 1908, the defendant shall bring into Court all documents

558

in his possession or powcr relating to the mortgaged property in the plaint mentioned, and all such

documents shall be delivered over to the plaintiff, or to such person as he appoints, and the

defendant shall, if so required, re-convey or re-transfer the said property free from the said

mortgage and clear of and from all incumbrances created by the defendant or any person claiming

under him or any person under whom he claims and shall, if so required, deliver up to the plaintiff

quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the

defendant may apply to the court for a final decree for the sale of the mortgaged property; and on

such application being made, the. mortgaged property or ,a sufficient part thereof shall be directed

to be sold; and for the purposes of such sale the defendant shall produce before the Court or such

officer as it appoints, all documents in his possession or power relating to the mortgaged property.

6. And it is hereby further ordered and decreed that the money realised by such sale shall be paid

into Court and shall be duly applied (after deduction there-from of the expenses of the sale) in

payment of the amount payable to the defendant under this decree and under any further orders

that may be passed in this suit and in payment of any amount which the Court may adjudge due -

to the defendant in respect of such costs of the suit and such costs, charges and expenses as may

be payable under rule 10, together with such subsequent interest as may be payable under rule 11,

of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance,

if any, shall be paid to the plaintiff or other persons entitled to receive the same.

7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be

sufficient for payment in full of the amount payable to the defendant as aforesaid, the defendant

shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not

barred by any law for the time being in force to apply for a personal decree against the plaintiff for

the amount of the balance; and that the parties are at liberty to apply to the Court from time to time

as they may have occasion, and on such application or otherwise the Court may give such

directions as it thinks fit.

____________________

SCHEDULE

Description of the mortgafJed property

No.7B

PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEfAULT OF PAYMENT

BY MORTGAGOR A DECREE FOR FORECLOSURE IS PASSED.

(Order XXXIV, rule 7.-Where the Court declares the amount due)

(Title)

This suit coming on this day, etc; It is hereby declared that the amount due to the

defendant on the mortgage mentioned in the plaint calculated up to this day of is the

sum of Rs. for principal, the sum of Rs. for interest on the

559

said principal principal, the sum of Rs. for costs, charges and expenses (other than the

costs of the suit) properly incurred by the defendant in respect of the mortgage-security together

with. interest thereon, and the sum of Rs., for the costs of the suit awarded to the de-

fendant, making in all the sum of Rs.

2. And it is hereby ordered add decreed as follows :

(i) that the plaintiff do pay into Court on or before the day of or any later date 'up to which

time for payment may be extended by the Court the said sum of Rs. ;

(ii) that, on Such' payment and on payment thereafter before such date as the 'Court' may fix of

such amount as the Court may adjudge due in respect of such costs of the suit and such costs,

charges afrd expenses as maybe payable under rule 10, together "with such subsequent interest as

maybe payable under role 11 of Order XXXIV of the First Schedule to the Code of Civil

Procedure, 1908, the defendant shall bring into Court all documents in his possession or power

relating to the mortgaged property in the, plaint mentioned, and all such documents shall be

delivered over to the plaintiff; or to such person as he appoints, and the defendant shall, if so

required, reconvey or retransfer the said property free from the said mortgage and clear of and,

from all incmnbrances created' by the defendant or any person claimirtg under him or any person

under 'whom he claims, and free from all liability whatsoever arising from the mortgage or this

suit and shall; if so required, deliver up to the plaintif quiet and peaceable possession of the said

property.

3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the

defendant may apply to the Court for a final decree that the plaintif shall henceforth stand

absolutely debarred and foreclosed of and from all right to redeem the mortgaged property

described in the Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet

and peaceable possession of the said property;' and that the parties shall be at liberty to apply to

the Court from time to time as they may have occasion and on, such application or otherwise the

Court may give such directions as it thinks fit.

______________________

SCHEDULE

Description of the mortgaged property

No.7C

PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF,

PAYMENT BY MORTGAGOR A DECREE FOR SALE IS PASSED.

(Order XXXIV, rule,7 Where the Court declares the amount due)

(Title)

This suit coming on this day, etc.; It is hereby declared that the amount due to the

defendant on the mortgage mentioned in the plaint calculated up to this day of is the sum . of

Rs,. for principal, 'the sum of Rs. for iriterest on

560

the said principal, the sum of Rs.for costs, charges and expenses (other than the costs of the suit)

properly incurred by the defendant in respect of the mortgage-security together with interest

thereon, and the sum of Rs.for the cost of this suit awarded to the defendant, making in all the sum

of Rs.

2. And it is hereby ordered and decreed as follows :

(i) that the plaintiff do pay into Court on or before the day of or any later date up to which time the

payment may be extended by the Court the said sum of Rs.;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such

amount as the Court may adjudge due in respect of such costs of

the' suit and such costs, charges and expenses as 'may he payable under rule 10 together with

such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule

to the Code of Civil Procedute, 1908, the defendant shall bring into Court all documents in his

possession or power relating to the mortgaged property in the plaint mentioned' and all such

documents shall be delivered over to the plaintiff, or such person as he appoints, and the

defendant shall, if so required reconvey or retransfer the said property to the plaintiff free from

the said mortgage and clear of and from all incumbrances created by the defendant or any person

claiming under him or any person under whom he claims' and shall, if so required, deliver up to

the plaintiff quiet and peaceable possession of the, said property.

3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defend

and may apply to the Court for a final decree for the sale of the mortgaged property; and on such

application being made, the mortgaged property or a sufficient part thereof shall be directed to be

sold; and for the purposes of such sale the defendant shall produce before the Court or such officer

as it appoints all documents in his possession or power relating to the mortgaged property.

4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid

into Court,and shall be duly applied (after deduction therefrom of the expenses of the sale) in

payment of the amount payable to the defendant under this decree and under any further orders

that may be passed in this suit and in payment of any amount which the Court may adjudge due to

the defendant in respect of such costs of the suit and such costs, charges and expenses as may be

payable under rule 10 together with such subsequent interest as may be payable under rule 11, of

Order XX'XIVof the First "Schedule to the Code of Civil Procedure, 1908, and that the balance"

if any, shaIl be paid to the plaintiff or other persons entitled to the same.

5. And it is hereby further ordered and decreed that if the money realised by such sale shall not be

sufficient for the payment in full of the amount payable to the defendant as aforesaid, the defendant

shall be at liberty (where such remedy is open to him, under the terms ,of the-mortgage and is not

barred by any law for the time being in force) to apply for a personal decree against the plaintiff

for the amount of the balance; and that ( the parties are at liberty to apply to the court from time

to time as they may have occasion, and on such application or otherwise the Court may give such

directions as it thinks.

_________________________

SCEHDULE

561

Description of the mortgaged propeerty

No.7D

FINAL DECREE FOR FORECLOSURE IN A REDEMPTION SUIT ON DEFAULT OF

PAYMENT BY MORTGAGOR.

( Order XXXIV, rule 8 )

( Title)

Upon reading the preliminary decree in this suit on the day of and further orders (if any)

dated the day of and the application of the defendant dated the day of for a final

decree and after hearing the parties, and it appearing that the payment as directed by the said decree

and orders has not been made by the plaintiff or any person on his behalf or any other person

entitled to redeem the mortgage.

It is hereby ordered and decreed that the plaintiff and all persons claiming through or under him

be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of

and in the property in the aforesaid preliminary decree mentioned and (if the plaintiff be in

possession of that said mortgaged property) that the plaintiff shall deliver to the defendant quiet

and peaceable possession of the said mortgaged property. .

2. And it is hereby further declared that the whole of the liability whatsoever of the plaintiff up to

this day arising from the said mortgage mentioned in the plaint or from this suit is hereby

discharged and extinguished.

__________________

No.7E

FINAL DECREE FOR SALE IN A REDEMPTION SUIT ON DEFAULT OF PAYMENT

BY MORTGAGOR.

( Order XXXIV, rule 8)

( Title)

Upon reading the preliminary decree in this suit on the day of and further orders (if any)

dated the day of and the application of the defendant dated the day of for a final

decree and after hearing the parties, and it appearing that the payment as directed by the said decree

and orders has not been made by the plaintiff or any person on his behalf or any other person

entitled to redeem the mortgage.

It is hereby ordered and' decreed that the mortgaged property in the aforesaid preliminary decree

mentioned or a sufficient part thereof be sold and that for the purposes of such sale the defendant

shall produce before, the

562

Court or such officer as it appoints all documents in his possession or power relation to the

mortgaged property.

2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid

into Court and shall be duly applied (after deduction there-from of the expenses of the sale) in

payment of the amount payable to' the defendant under the aforesaid preliminary decree and under

any further orders that may have been passed in this suit and in payment of any amount which the

Court may have adjudged due to the defendant for such costs of this suit including the costs of this

application and such costs, charges and expenses as may be payable under rule 10, together with

the subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to

the Code of Civil Procedure, 1908, and that the balance, if any, shall be. paid to the plaintiff or

other persons entitled to receive the same.

__________________

No.7F

FINAL DECREE IN A SUIT FOR FORECLOSURE, SALE OR REDEMPTION WHERE

THE MORTGAGOR PAYS THE AMOUNT OF THE DECREE.

( Order XXXIV, rules 3, 5 and 8 )

(Title)

This suit coming on thisday for further consideration and it appearing that on the day of the

mortgagor or, the same being a person entitled to redeem, has paid into Court all amounts

due to the mortgagee under the preliminary decree dated the day of; It is hereby ordered

and decreed that :

(i) The mortgagee do execute a deed of reconveyance of the property in the aforesaid preliminary

decree mentioned in favour of the mortgagor or, as the case may be, who has redeemed the

property or an acknowledgment of the payment of the amount due in his favour;

(ii) The mortgage do bring into Court all documents in his possession and power relating to the

mortgaged property in the suit.

And it is hereby further ordered and decreed that, upon the mortgage executing the deed of

reconveyance or acknowledgment in the manner aforesaid,

(i) The said sum of Rs. be paid out of Court to the mortgagee;

(ii) the said deeds and documents brought into the Court be delivered out of Court to the mortgagor

or the person making the payment and the mortgagee do, when so required, concur in registering,

at the cost of the mortgagor or other person making the payment, the said deed of reconveyance or

the acknowledgment in the office of the Sub-Registrar of; and

(iil) if the mortgagee, plaintiff or defendant, as the case may be, is in possession of the mortgaged

property that the mortgagee do forthwith deliver possession of the mortgaged property in the

aforesaid preliminary decree mentioned to the mortgagor or such person as aforesaid who has

made the payment.

563

No.8

DECREE AGAINST MORTGAGOR PERSONALLY FOR BALANCE AFTER THE,

SALE OF THE MORTGAGED PROPERTY,

(Order XXXIV, rules 6 and 8A)

(Title)

Upon reading the application of the mortgagee (the plaintiff or defendant, as the case' may be)

and reading the final decree passed in the suit on. The day of and-the Court being satisfied

that the net proceeds of the sale held under the aforesaid final decree amounted to Rs.

and have been paid to the applicant out of the Court on theday of and that the balance now due

to him under the aforesaid decree is Rs.

And whereas it appears to the Court that the said sum is legally recoverable from the mortgagor

(plaintiff, or defendant, as the case may be) personally;

It is hereby ordered and decreed as follows:

That the mortgagor (plaintiff or defendant, as the case may be) do pay to the mortgagee

(defendant or plaintiff, as the case may be) the said sum of Rs, with further interest at the

rate of six percent per annum from the day of (the date of payment out of Court

referred to above) up to the date of realization of the said sum, and the costs of this application.

____________

No.9

PRELIMINARY DECREE FOR FORECLOSURE FOR SALE

.

Plaintiff 1st, Mortgagee.

Defendant' No.1 Mortgagor

Defendant No.2' 2nd 'Mortgagee

(Order XXXIV, rules, 2 and 4)

(Title)

The suit coming on this day, etc.; it is hereby that the amount due to the plaintiff on the

mortgage mentioned in the plaint calculated up to this day of is the sum of Rs. for

principal, the sum of Rs. for interest on the said principal, the sum of Rs for costs,

charges and expenses (other than the costs of the suit) incurred by the plaintiff in respect of the

mortgage-security with interest thereon and the sum of Rs.for the costs of this suit awarded to the

plaintiff, making in all, the sum of Rs.,

(Similar, declarations to be introduced with, regard to the amount due to defendant No.2 in respect

of his mortgage if the mortgage-money due there-under, has become payable at the date of the

suit).

2. It is further declared that the plaintiff is entitled, to payment of the amount due to him in priority

564

to defendant No.2 or (if there are several subsequent mortgagees) that the several parties hereto

are entitled in the following order to the payment of the sums due to them respectively.

3. And it is hereby ordered and decreed as follows:

(i) (a) that defendants or one of them do pay into Court on or before the day of or any

later date up to which time for payment has been extended by the Court the said sum of Rs.

due to the plaintiff; and

(b) that defendant No.1 do pay into Court on or before the day of or any later date up to

which time for payment has been extended by the Court the said sum of Rs. due to defendant

No.2; and

(ii) that, on payment of the sum declared to be due to the plaintiff by defendants or either of them

in the manner prescribed in clause (i) (a) and on payment thereafter before such date as the Court

may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such

costs, charges and expenses as may be payable under rule 10, together with such subsequent

interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of

Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power

relating to the mortgaged property in the plaint mentioned, and all such documents shall be

delivered over to the defendant No.

(Who has made the payment). or to such person as he appoints, and the plaintiff shall, if so

required, re-convey' or re-transfer the said property free from the said mortgage and clear of and

from all incumbrances created by the plaintiff or any person claiming under him or any person

under whom he claims, and also free from all liability whatsoever arising from the mortgage or

this suit and shall, if so required, deliver up to the defendant No.

(who has made the payment) quiet and peaceable possession of the said property.

(Similar declarations to be introduced, if defendant No.1 pays the amount found or declared to,

be due to defendant No.2 with such variations as may be necessary having regard to the nature of

his mortgage.)

4. And it is hereby further ordered and decreed that, ,in default of payment as aforesaid of the

amount due to the plaintiff, the plaintiff shall be at liberty to apply to the Court for a final decree

(i) in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy

provided for the mortgage-deed is foreclosure and not sale] that the defendants jointly and sever-

ally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the

mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver to

the plaintiff quiet and peaceable possession of the said property;

Or

(ii). in the case of any other mortgage] that the mortgaged property or a sufficient part thereof

shall be sold; and that for the purposes of such sale the plaintiff shall produce before the Court or'

"such officer as it appoints, all documents in his possession or power relating to the mortgaged

property; and

(iii) in the case where a sale is ordered under clause 4 (ii) above that the money realised by such

565

sale shall be paid into Court and be duly applied (after deduction there-from of the expenses of the

sale) in payment of the amount payable to the plaintiff under this decree and under any further

orders that may have been passed in this suit and in payment of the amount which the Court may

adjudge due to the plaintiff in respect of such costs of this suit and such costs, charges and expenses

as may be payable under rule 10, together with such subsequent interest as may be payable under

rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908. and that the

balance, if any, shall be applied in payment of the amount due to defendant No.2; and that if any

balance be left, it shall be paid to the defendant No.1 or other persons entitled to receive the same;

and

(iv) That. if the money realised by such sale shall not be sufficient for payment in full of the

amounts due to the plaintiff and defendant No.2, the plaintiff or defendant No.2 or both of them,

as the case may be, shall be at liberty (when such remedy is open under the terms of their respective

mortgages and is not barred by any Jaw for the time being in force) to apply for a personal decree

against defendant No.1 for the amounts remaining due to them respectively.

5. And it is hereby further ordered and decreed

(a) that if defendant No.2 pays into Court to the credit of this suit the amount adjudged due to the

plaintiff, but defendant No.1 makes default in the payment of the said amount, defendant No.2

shall be at liberty to apply to the Court to keep the plaintiffs mortgage, alive for his benefit and to

apply for a final decree (in the same manner as the plaintiff might have done under clause 4 above)

(i) that defendant No.1 shall thenceforth stand absolutely debarred and foreclosed of and from all

right to redeem the mortgage property described in the Schedule annexed hereto and shall, if so

required, deliver up to defendant No.2 quiet and peaceable possession of the said property; or

(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such

sale defendant No.2 shall produce before the Court or such officer as it appoints, all documents in

his possession or power relating to the mortgaged property;

and (b) (if on the application of defendant No.2 such a final decree for, c foreclosure is passed),

that the whole of the liability of defendant No.1 arising from the plaintiff’s mortgage or from the

mortgage of defendant No.2 or from this suit shall be deemed to have been discharged and

extinguished.

6. And it is hereby further ordered and decreed in the case where a sale is ordered under clause 5

above.

(i) that the money realized by such sale shall be paid into Court and be duly applied (after deduction

there-from of the expenses of the sale) first in payment of the amount paid by defendant No.2 in

respect of the plaintiff's mortgage and the costs of the suit in connection therewith and in payment

of the amount which the Court may adjudge due in respect of subsequent interest on the said.

amount; and that the ba13nce, if any, shall then be applied in payment of the amount adjudged due

to defendant No.2 in respect of his own mortgage under this decree and any further orders that

may be passed and in payment of the amount which the Court may adjudge due in respect of such

566

costs of this suit and such costs, charges and expenses as may be payable to defendant No.2 under

rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV

of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be

paid to defendant No.1 or other persons entitled to receive the same; and

(ii) that, if the money realized by such sale shall not be sufficient for payment in full of the amount

due in respect of the plaintiff's mortgage or defendant No. 2'8 mortgage, defendant No.2 shall be

at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by

any law for the time being in force) to apply for a personal decree against defendant No.1 for the

amount of the balance.

7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court

from time to time as they may have occasion, and on such application or otherwise the Court may

give such directions as it thinks fit.

SCHEDULE

Description of the mortgaged property.

______________

No. 10

PRELIMINARY DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND

FORECLOSURE OR SALE ON SUBSEQUENT MORTGAGE.

Plaintiff ... .. .. .. .. .. .. .. 2nd Mortgagee,

Vs.

Defendant No.1 ... .. .. .. .. .. .. Mortgagor

Defendant No.2 ... .. .. .. .. .. .. 1st Mortgagee]

The suit coming on this day, etc.; It is hereby declared that the amount due to defendant No.2

on the mortgage mentioned in the plaint calculated up to this day of is the sum of Rs.

for principal, the sum of Rs. for interest on the said principal, the sum of Rs. for costs,

charges and expenses (other than the costs of the suit) properly incurred by defendant No.2

in respect of the mortgage-security with interest thereon and the sum of Rs. for the costs of

this suit awarded to defendant No.2, making in all the sum of Rs.

(Similar declarations to be introduced with regard to the amount due from defendant No.1 to the

plaintiff in respect of his mortgage if the mortgage money due there-under has become payable

at the date of the suit.)

2. It is further declared that defendant No.2 is entitled to payment of the amount due to him in

priority to the plaintiff or (if there are several subsequent mortgagees) that the several parties hereto

are entitled in the following order to the payment of the sums due to them respectively:

3. And it is hereby ordered and decreed as follows:

567

(i) (a) that the plaintiff or defendant No.1 or one of them do pay into Court on or before the day

of or any later date up to which time for payment has been extended by the Court the said sum of

Rs. due to defendant No.2; and

(b) that defendant No.1 do pay into Court on or before the day of or any later date up-to which

time for payment has been extended by the Court the said sum of Rs. due to the plaintiff;

and

(ii) that, on payment of the sum declared due to defendant No. 2 by the plaintiff and defendant

No.1 or either of them in the manner prescribed in clause (i) (a) and on payment thereafter before

such date as the Court may fix of such amount as the Court may adjudge due in respect of such

costs of the suit and such costs, charges and expenses as may be payable under rule 10, together

with such subsequent interest as may be payable under rule 11, of Order XXXN of the First

Schedule to the Code of Civil Procedure, 1908, defendant No.2 shall bring into Court all

documents in his possession or power relating to the mortgaged property in the plaint mentioned,

and all such documents shall be delivered over to the plaintiff or defendant No.1 (whoever has

made the payment), or to such person as he appoints, and defendant No.2 s)1all, if so required,

recovery or re-transfer the said property free from the said mortgage and clear of and from all in-

cumbrances created by defendant No.2 or any person claiming under him or any person tinder

whom he claims, and also free, from all liability whatsoever arising from the mortgage or this suit

and shall, if so required, deliver up to the plaintiff or defendant No.1 (whoever has made the

payment) quiet and peaceable possession of the said property.

(Similar declarations to be introduced, if defendant No.1 pays the amount found or

declared due to the plaintiff with such variations as may be necessary having regard 'to the nature

'of his mortgage.)

4. And it is hereby further ordered and decreed that. in default of payment as aforesaid, of the

amount due to defendant No.2, defendant No.2 shall be at liberty to apply to the Court that the suit

be dismissed or for a final decree

(i) in the case of mortgage by conditional sale or an anomalous mortgage where the only remedy

provided for in the mortgage deed is foreclosure and not sale] that the plaintiff and defendant No.1

jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from an

right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so

required, deliver to the defendant No.2 quiet and peaceable possession of the property; or

(ii) in the case of any other mortgage that the mortgaged property or a sufficient part thereof shall

be sold; and that for the purposes of such sale defendant No.2 shall produce before the Court or

such officer as it appoints, all documents in his possession or power relating to the mortgaged

property; and

(iii) ill the case where a sale is ordered under clause 4(ii) above that the money realized by such

sale shall be paid into Court and be duly applied (after deduction there-from of the expenses of the

sale) in payment of the amount payable to defendant No.2 under the decree and any further orders

that may be passed in this suit and in payment of the amount which the Court may adjudge due to

568

defendant No.2 in respect of such costs of the suit and such costs, charges and expenses as may be

payable to the plaintiff under rule 10, together with such subsequent interest as may be payable

under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and

that the balance, if any, shall be applied in payment of the amount due to the plaintiff and that, if

any balance be left, it shall be paid to defendant No.1 or other persons entitled to receive the same;

and

(iv) that, if the money realized by such sale shall not be sufficient for payment in fun of the amounts

due to defendant No.2 and the plaintiff, defendant No.2 or the plaintiff or both of them, as the case

may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages

and is not barred by any law for the time being in force) to apply for a personal decree against

defendant No. 1 for the amounts remaining due to them respectively.

5. And it is hereby further ordered and decreed,

(a) that, if the plaintiff pays into Court to the credit of this suit the amount adjudged due to

defendant No.2 but defendant No.1 makes default in the payment of the said amount, the plaintiff

shall be at liberty to apply to the Court to keep defendant No. 2's mortgage alive for his benefit

and to apply for a final decree

(in the same manner as the defendant No.2 might have done under clause 4 above)

(i) that defendant No.1 shall thenceforth stand absolutely debarred and foreclosed of and from all

right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so

required, deliver up to the plaintiff quiet and peaceable possession of the said property; or

(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such

sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his

possession or power relating to the mortgaged property;

and (b) (if on the application of defendant No.2 such a final decree for foreclosure is passed), that

the whole of the liability of defendant No.1 arising from the plaintiff's mortgage or from the

mortgage of defendant No.2 or from this suit shall be deemed to have been discharged and

extinguished.

6. And it is hereby further ordered and decreed (in the case where a sale is ordered under clause

5 above)—

(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction

there-from of the expenses of the sale) first in payment of the amount paid by the plaintiff in respect

of defendant No. 2's mortgage and the costs of the suit in connection therewith and in payment of

the amount which the Court may adjudge due in respect of subsequent interest on the said amount;

and that the balance, if any, shall then be applied in payment of the amount adjudged due to the

plaintiff in respect of his own mortgage under this decree and any further orders that may be passed

and in payment of the amount which the Court may adjudge due in respect of such costs of the suit

and such costs, charges and expenses as may be payable to the plaintiff under rule 10, together

569

with such subsequent interest as may be payable under rule II, of Order XXXIV of the First

Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to

defendant No.1 or other persons entitled to receive the same; and

(ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount

due in respect of defendant No. 2's mortgage or the plaintiff's mortgage, defendant No.2 shall be

at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by

any law for the time being in force) to apply for a personal decree against defendant No.1 for the

amount of the balance.

7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court

from time to time as they may have occasion, and on such application or otherwise the Court may

give such directions as it thinks fit.

___________

SCHEDULE

Description of the mortgaged property

____________

No. 11

PRELIMINARY DECREE FOR SALE

[Plaintiff ... Sub or derivative mortgagee.

Vs.

Defendant No.1 .. .. .. .. .. .. Mortgagor.

Defendant No.2 .. .. .. .. .. .. Original mortgagee.]

(Order XXXIV, rule 4)

(Title)

This suit coming on this day, etc.; It is hereby declared that the amount due to defendant No.2 on

his mortgage calculated up to this day of is the sum of Rs. For principal, the sum of Rs.

for interest on the said principal, the sum of Rs. for costs, charges and expenses (other

than the costs of the suit) in respect of the mortgage-security together with interest thereon and the

sum of Rs. for the costs of the suit awarded to defendant No.2, making in all the sum of Rs.

(Similar declarations to be introduced with regard to the amount due from defendant No.2 to the

plaintiff in respect of his mortgage.)

2. And it is hereby ordered and decreed as follows:-

(i) that defendant No.1 do pay into Court on or before the said day of or any later date up

to65 which time for payment may be extended by the Court the said sum of Rs. due to defendant

No.2.

(Similar declarations to be introduced with regard to the amount due to the plaintiff, defendant

No.2 being at liberty to pay such amount.)

570

(ii) that, on payment of the sum declared due to defendant No.2 by defendant No.1 in the manner

prescribed in clause 2 (i) and on payment thereafter before such date as the Court may fix of such

amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges

and expenses as may be payable under rule 10, together with such subsequent interest as may be

payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure,

1908, the plaintiff and defendant No.2 shall bring into Court all documents in their possessioI1or

power relating to the mortgaged property in the plaint mentioned, and all such documents (except

such as relate only to the sub-mortgage) shall be delivered over to defendant No.1, or to such

person as he appoints, and defendant No.2 shall, if so required, re-convey or re-transfer the

property to defendant No.1 free from the said mortgage clear of and from all in-cumbrances created

by defendant No.2 or any person claiming under him or any person under whom he claims, and

free from an liability arising from the mortgage or this suit and shall, if so required, deliver up to

defendant No.1 quiet and peaceable possession of the said property; and

(iii) that, upon payment into the Court by defendant No.1 of the amount due to defendant No.2,

the plaintiff shall be at liberty to apply for payment to him of the sum declared due to him together

with any subsequent costs of the suit and other costs, charges and expenses as may be payable

under rule 10, together with such subsequent interest as may be payable under rule 11, of Order

XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any,

shall then be paid to defendant No.2; and that if the amount paid into the Court be not sufficient to

pay in full the sum due to the plaintiff, the plaintiff shall be at liberty (if such remedy is open to

him by the terms of the mortgage and is not barred by any law for the time being in force) to apply

for a personal decree against defendant No.2 for the amount of the balance.

3. And it is further ordered and decreed that if defendant No.2 pays into Court to the credit of this

suit the amount adjudged due to the plaintiff the plaintiff shall bring into the Court all documents,

etc. [as in sub-clause (ii) of clause 2 .

4. And it is hereby further ordered and decreed that, in default of payment by defendants Nos. 1

and 2 as aforesaid, the plaintiff may apply to the court for a final decree for sale, and on such

application being made the mortgaged property or a sufficient part thereof shall be directed to be

sold; and that for the purposes of such sale the plaintiff and defendant No.2 shall produce before

the Court or such officer as it appoints, all documents in their possession or power relating to the

mortgaged property.

5. And it is hereby further ordered and decreed that the money realised by such sale shall be paid

into Court and be duly applied (after deduction there-from of the expenses of the sale) first in

payment of the amount due to the plaintiff as specified in clause 1 above with such costs of the

suit and other costs, charges and expenses as may be payable under rule 10, together with such

subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the

Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the

amount due to defendant No.2; and that, if any balance be left, it shall be paid to defendant No.1

or other persons entitled to receive the same.

6. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be

sufficient for payment in full of the amounts payable to the plaintiff and defendant No.2, the

plaintiff or defendant No.2 or both of them, as the case may be, shall be at liberty (if such remedy

571

is open under their respective mortgages and is not barred by any law for the time being In force)

to apply for a personal decree against defendant No.2 or defendant No.1 (as the case may be) for

the amount of the balance.

7. And it is hereby further ordered and decreed that, if defendant No.2 pays into Court to the credit

of this suit the amount adjudged due to the plaintiff, but defendant No.1 makes default in payment

of the amount due to defendant No.2, defendant No.2 shall be at liberty to apply to the Court for a

final decree for foreclosure or sale (as the case may be)-(dec1arations in the ordinary from to be

introduced according to the nature of defendant No. 2’s mortgage and the remedies open to him

there-under.

8. And it is hereby further ordered and decreed that the parties are as liberty to apply to the Court

as they may have occasion and on such application or otherwise the Court may give such

directions as it thinks fit.

SCHEDULE

(Description of the mortgaged property]

No. 12

DECREE FOR RECTIFICATION OF INSTRUMENT

(Title)

It is hereby declared that the, dated the day of 19, does not truly express the intention of the

parties to such

And it is decreed that the said be rectified by

____________

No. 13

DECREE TO SET ASIDE A TRA,-ISFER IN FRAUD OF CREDITORS

(Title)

It is hereby declared that the, dated the day of 19 , and made between

and , is void as against the plaintiff and all other the creditors, if any, of the

defendant.

____________

No. 14

INJUNCTION AGAINST PRIVATE NUISANCE

(Title)

LET the defendant , his agents, servants and workmen, be perpetually restrained from

burning, or causing to be burnt, any bricks on the defendant's plot of land marked B in the annexed

plan, so as to occasion a nuisance to the plaintiff as the owner or occupier of the dwelling-house

and garden mentioned in the plaint as belonging to and being occupied by the plaintiff.

___________

No. 15

INJUNCTION AGAINST BUILDING HIGHER THAN OLD LEVEL

572

(Title)

LET the defendant , his contractors, agents and workmen, be perpetually restrained

from continuing to erect upon his premises in any house or building of a greater height than the

buildings which formerly stood upon his said premises and which have been recently pulled

down. so or in such manner as to darken, injure or obstruct such of the plaintiff’s windows in his

said premises as arc ancient lights.

___________

No. 16

INJUNCTION RESTRAINING USE OF PRIVATE ROAD

(Title)

LET the defendant , his agents, servants and workmen, be perpetually restrained from using

or permitting to be used any part of the lane at, the soil of which belongs to the plaintiff, as a

carriage way for the passage of carts, carriages or other vehicles, either going to or from the land

marked B in the annexed plan or for any purpose whatsoever.

__________

No. 17

PRELIMINARY DECREE IN AN ADMINISTRATION-SUIT

(Title)

It is ordered that the following accounts and inquiries be taken and made;

that is to say :

In creditor's suit

1. That an account be taken of what is due to the plaintiff and all other the creditors of the deceased.

In suits by legatees

2. That an account be taken of the legacies given by the testator's will.

In suit by next-of-kin

3. That an inquiry be made and account taken of what or of what share, if any, the plaintiff is entitled to

as next-of-kin or one of the next-of-kin of the intestate.

After the first paragraph, the decree will, where necessary, order, in a creditor's suit, inquiry and accounts

for legatees, heirs-at-law and next-of-kin. In suits by claimants other than creditors, after the first

paragraph, in all cases, an order to inquire and take an account of creditors will follow the first paragraph

and such of the others as may be necessary will follow, omitting the first formal words. The form is

continued as in a creditor's suit.

4. An account of the funeral and testamentary expenses.

5. An account of the moveable property of the deceased comes to the hands of the defendant, or to the

hands of any other person by his order or for his use.

6. An inquiry what part (if any) of the moveable property of the deceased is outstanding and un-

disposed of.

7. And it is further ordered that the defendant do, on or before the day of next, pay into Court all sums

of money which shall be found to have come to his hands or to the hands of any person by his order or

573

for his use.

8. And that if the "shall find it necessary for carrying out the objects of the suit to sell any part of the

moveable property of the deceased that the same be sold accordingly, and the proceeds paid into Court.

9. And that Mr. E.F. be receiver in the suit (or proceeding) and receive and get in all outstanding debts

and outstanding moveable property of the deceased, and pay the same into the hands of the"(and shall

give security by bond for the due performance of his duties to the amount of rupees).

10. And it is further ordered that if the moveable property of the deceased be found insufficient for

carrying out the objects of the suit, then the following further inquiries be made, and accounts taken,

that is to say

(a) An inquiry what immoveable property the deceased was seized of or entitled to at the time of his

death;

(b) An inquiry what are the in-cumbrances (if any) affecting the immoveable property of the

deceased or any part thereof;

(c) An account, so far as possible, of what is due to the several in-cumbrances, and to include a

statement of the priorities of such of the in-cumbrances as shall consent to the sale hereinafter

directed.

11. And that the immoveable property of the deceased, or so much thereof a shall be necessary to

make up the fund in Court sufficient to carry out the object of the suit, be sold with the approbation

of the judge, free from in-cumbrances (if any) of such in-cumbrancer as shall consent to the sale

and subject to the in-cumbrances of such of them as shall not consent.

12. And it is ordered that G.H. shall have the conduct of the sale of the immoveable property, and

shall prepare the conditions and contracts of sale subject to the approval of the and that in case any

doubt or difficulty shall arise the papers shall be submitted to the judge to settle.

13. And it is further ordered that, for the purpose of the inquiries hereinbefore directed, the

shall advertise in t he newspapers according to the practice of the Court, or shall-make such

inquiries in any other way which shall appear to the *to give the most useful publicity to such

inquiries.

14. And it is ordered that the above inquiries and accounts be made and taken, and that all other

acts ordered to be done be completed, before the day of , and that the do certify the result of

the inquiries, and the accounts, and that all other acts ordered are completed, and have his

certificate in that behalf ready for the inspection of the parties on the day of

15. And, lastly, it is ordered that this suit [or proceeding] stand adjourned for making final decree

to the day, of such part only of this decree is to be used as is applicable to the particular

case.

No. 18

FINAL DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE

574

(Title)

1. It is ordered that the defendant do, on or before the day of , pay into Court the sum of Rs.

, the balance by the said certificate found to be due from the said defendant on account of

the estate of , the testator, and also the sum of Rs. for interest, at the rate of Rs. per

cent. per annum, from the day of to the day of , amounting together to the sum of Rs.

2. Let the of the said Court tax the costs of the plaintiff and defendant in this suit, and let, the

amount of the said costs, when so taxed, be paid out of the said sum of Rs. ordered to be

paid into Court as aforesaid, as follows : -

(a) The costs of the plaintiff to Mr. his attorney [or pleader] or and the costs of the defendant to

Mr. his attorney [or pleader].

(b) And (if any debts are due) with the residue of the said sum of Rs. after payment of the

plaintiff's and defendant costs as aforesaid, let the sums found to be owing to the several creditors

mentioned in the schedule to the certificate, of the, together with subsequent interest on such of

the debts as bear interest, be paid; and, after making such payments; let the amount coming to the

several legatees mentioned in the schedule, : together with subsequent interest (to be verified

as aforesaid), be paid to them.

3. And if there should then be any residue, let the same be paid to the residuary legatee.

_____________

No. 19

PRELIMINARY DECREE IN AN ADMINISTRATION SUIT BY A LEGATEE WHERE

AN EXECUTOR IS HELD PERSONALLY LIABLF, FOR THE PAYMENT 0F

LEGACIES.

( Title)

1. IT' is declared that the defendant is personally liable to pay the legacy of Rs. bequeathed to

the plaintiff;

2. And it is ordered that an account be taken of what is due for principal .and interest on the said

legacy.

3. And it is also order that the defendant do, within weeks after the date of the certificate of the

pay to the plaintiff the amount of what the shall certify to be due for principal and

interest:

4. And it is ordered that the defendant do pay the plaintiff his costs of suit, the same to be taxed in

case the parties differ. ______________

575

No. 20

"FINAL DECREE IN AN ADMINISTRATION-SUIT BY NEXT-OF-KIN.

( Title)

1. LET the of the said Court tax the costs of the plaintiff and defendant in

this suit" and, let the amount of the said plaintiff's costs, when so taxed, be paid by the defendant

to the plaintiff out of the sum of Rs.’ the balance by the said certificate found to

be due from the said defendant on account of the personal estate of E.F the intestate, within one

week after the taxation of the said cost by the said and let the defendant retain for her own use

out of such sum her costs, when taxed. . ,

2. And it is ordered that the residue of the said sum of Rs., after payment of the plaintiff's and

defendants costs as aforesaid, be paid and applied by defendant as follows :

(a) Let the defendant, within ,one week after the taxation of the said costs by the as aforesaid, pay

one-third share of the said residue to the plaintiffs A.B., and C.D., his wife, in her right as the sister

and one of the next-kin of the said E.F., the intestate.

(b) Let the defendant retain for her own use on other hand share of the said residue as the mother

and one of the next-of-kin of the said E.F., the intestate.

(c) And let, the defendant, within one week after, the, taxation of the said cost by the as

aforesaid, pay, the remaining one-third share of the ,said residue to G.H., as the brother and the

other next-of-kin of the said E,F., the 'intestate.

_________________

No. 21

PRELlMlNARY DECREE IN A SUIT FOR DISSOLUTION OF PARTNERS AND

THE TAKING OF PARTNERSHIP ACCOUNTS.

(TITLE)

IT is declared that the proportionate shares of the parties in the partnership are as follows: -

It is declared that this partnership shall stand dissolved or shall be, deemed to have been

dissolved as from the : day of and it is ordered that the dissolution thereof as from

that day be, advertised in the. , , Gazette etc,

And it is, ordered that be the receiver of the partnership estate and effects in this suit'

and do, get in all the outstanding 'book-debts and claims of the partnership.

And it is ordered that the following accounts be taken;

1. An account of the credits, property and effects now belonging to the said partnership.

2. An account of the debts and liabilities of the said partnership;

576

, ..,

3. An account of all dealings and transactions between the plaintiff and defendant, from the foot

of the settled account exhibited in this suit and marked (A), and not disturbing any subsequent

settled accounts:

And it is ordered that the good will of the business heretofore carried on by the plaintiff and

defendant as in the plaint mentioned" and the stock-in-trade, be sold on the premises, and that the

*may, on the application of any of the parties, fix a reserved bidding for all or any of the lots at

such sale, and that either of the parties is to be at liberty to bid at the sale.

And it is ordered that the above accounts be taken, and all the other acts required to be done, be

completed, before the day of and, that the, *do certify the result of the accounts, and

that all other acts are completed, and have his certificate in that behalf ready for the inspection of

the parties on the day of …..

And, lastly, it is ordered that this suit stand adjourned for making a final decree to the day of

….

No. 22

FINAL DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE

TAKING OF PARTNERSHIP ACCOUNTS.

( Title )

IT is ordered that the fund now in Court, amounting to the sum of, be applied as follows :

1. In payment of the debts due by the partnership set forth in the certificate of the *amounting in

the whole to Rs.

2. In payment of the costs of all parties in this suit, amounting to Rs.

[ These costs must be ascertained before the decree is drawn up]

3. In payment of the sum of Rs. to the plaintiff of the partnership assets, of the sum of Rs.

of the said sum of Rs. , being the residue of the said sum of Rs. now in Court, to be

defendant as his share of the partnership-assets.

[Or, and that the remainder of the said sum of Rs.be paid to the said plaintiff (or defendant) in part

payment of the sum of Rs. certified to be due to him, in respect of the partnership-accounts.

4. And that the defendant [or plaintiff] do on or before the day of pay to the plaintiff [or

defendant ] the sum of Rs. being the balance of the said sum,*Rs. ,due to him,

which will then remain due.

_________________

577

No. 23

DECREE FOR RECOVERY OF LAND AND MESNE PRIGHTS

( Title)

IT is hereby decreed as follows :

1. That the defendants do put the plaintiff in possession of property specified in the schedule

hereunto annexed.

2. That the defendants do pay to the plaintiff the sum of Rs. - with interest thereon at the rate of

per cent per-' annum to the date of realization on account of mesne profits which have accrued

due, prior to the institution of the suit. .. '

Or

2. That an inquiry be made as to the amount of mesne Profits 'which have accrued due prior to the

institution of the suit.

3. That an inquiry be made as to the amount of mesne profits from the institution of the suit until

[the delivery possession to the decree-holder]

[The relinquishment of Possession by the judgment debtor will notice to the decree-holder through

the Court, the expiration of three years from the date of the decree].

_______________

SCHEDULE

APPENDIX E

EXECUTION

No.1NOTICE TO SHOW CAUSE WHY PAYMENT OR ADJUSTMNET SHOULD NOT

BE RECORDED AS CERTIFIED (O. 21, r.2)

(TITLE)

WHEREAS in execution of the decree in the above-named suit has applied to this Court that the

sum of Rs recoverable under the decree has been paid/ adjusted-and should be recorded as

certified, this is to give you notice that you are to appear before this Court on the day of 19

, to show cause why the Payment/ Adjustment –aforesaid should not be recorded as certified.

Given under my hand and the seal of the Court, this of day of 19 .

__________________

578

No. 2

PRECEPT (Section 46)

(Title)

UPON hearing the decree-holder it is ordered that this precept be sent to the Court of at

under section 46 of the Code of Civil Procedure, 1908, with directions to attach the property

specified in the annexed schedule and to bold the same pending any application which may be

made by the decree-holder for execution of the decree.

Schedule

Dated the day of 19.

Judge

_______________

No. 3

ORDER SENDINO DECREE FOR EXECUTION TO ANOTHER COURT

(O. 21, r. 6)

(Title )

WHEREAS the decree-holder in the above suit has applied to this Court for a certificate to be

sent to the Court of at execution of the decree in the above suit by the said Court, al1eginz that

the judgment-debtor resides or has property within the local limits of the jurisdiction of the said

Court, and it is deemed necessary and proper to send a certificate to the said Court under Order

XXI, rule 6, of the Code of Civil Procedure, 1908, it is

Ordered :

That a copy of this order be sent to

with a copy of the decree and of any order which may have been made for execution of the same

and a certificate of non-satisfaction. .

Dated the day of 19 .

Judge

_________________

579

No.4

CERTIFICATE OF NON-SATISFICATION OF DECREES (O. 21, r.6)

(TITLE)

CERTIFIED that no (1) satisfaction of the decree of this Court in Suit No. of 19, a copy

which is hereunto attached, has been obtained by execution within the jurisdiction of this Court.

Dated the day of 19.

Judge

(1) if partial, strike out "no", and state to what extent.

NO. 5

CERTIFICATE OF EXECUTION OF DECREE TRANSFERRED TO ANOTHER

COURT (O. 21, r. 6)

(TITLE)

Nu

mb

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f su

it

an

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he

Cou

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y

wh

ich

dec

ree

was

pass

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Nu

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f

part

ies

Date

of

ap

pli

cati

on

for

exec

uti

on

Nu

mb

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f th

e

exec

uti

on

case

Pro

cess

iss

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an

d d

ate

s of

serv

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ther

eof

Cost

s of

exec

uti

on

Am

ou

nt

reali

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How

th

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s

dis

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d o

f.

Rem

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s

1 2 3 4 5 6 7 8 9

Rs .A. P

Rs. A. P.

Signature of Muharrir in charge Signature of Judge

580

NO. 6

APPLICATION FOR EXECUTION OF DECREE. (0.21, r. 11)

In the Court of

I

decree-holder, hereby apply for execution of

The decree herein below set forth:-,

No.

of

suit

Nam

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ties

Dat

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dec

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Whet

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any a

ppea

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Pay

men

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adju

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mad

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f an

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Pre

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us

appli

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on, if

any,

wit

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ate

and

res

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Am

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wit

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the

dec

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ount

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whom

to b

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Mode in which the assistance of the Court is

required

1 2 3 4 5 6 7 8 9 10

78

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97

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-Pla

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Mar

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899

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31

4-8

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[When attachment and sale of movable

property is sought] I pray that the total amount of Rs. [together

with interest on the principal sum up to date

of payment] and the costs of taking out this

execution, be realized by attachment and sale

of defendant`s movable property as per

annexed list and paid to me. [When attachment and sale of, immoveable

property is sought]. I pray that the total amount of Rs. [together

with interest on the principal sum up to date

of payment] and the costs of taking out this

execution be realized by the attachment and

sale of defendant's immoveable property

specified at the foot of this application and

paid to me

I Declare that what is stated herein is true to the best of my knowledge and

belief Signed, decree-holder

Dated the day of 19

581

[When attachment and sale of immoveable property is sought] Description and Specification of Property

The undivided one-third share of the judgment-debtor in a house situated in the village of , value Rs. 40;

and bounded as follows:

East by G's house; west by H's house; south by public road; north by private land and J's house.

I declare that what is stated in the above description is true to the best of my knowledge and

belief, and so far as I have been able to ascertain the interest of the defendant in the property therein

specified.

Signed decree-holder

_____________

No.7

NOTICE TO SHOW CAUSE WHY EXECUTION SHOULD NOT ISSUE. 1[(0.21, r. 16)]

(Title)

To

WHEREAS

made application to this Court for execution of decree in Suit No. of 19 , on the allegation that the

said decree has been transferred to him by assignment, this is to give you notice that you 'are to appear

before this Court .on the day of 19, to show cause why execution should not be granted.

GIVEN under my hand and the seal of the Court; this day of 19

Judge

_______________

No.8

WARRANT OF ATTACHMENT OF MOVEABLE PROPERTY IN EXECUTION OF A

DECREE FOR MONEY (0.21, r. 30)

(Title)

To

The Bailiff of the Court.

WHEREAS was ordered by Decree of this Court passed on the day of 19 , in Suit No.

1 Subs. by the Repealing and Amending Act, 1914 (10 of 1914) s.2 and First Sch, for “(O.21, r.22)”.

Decree

582

of 19 , to pay to the plaintiff the sum of Rs. as noted in the

margin; and whereas the said sum of Rs. has not been paid; These

are to command you to attach the moveable property of the said as

set forth the on the schedule hereunto annexed, or which shall be,

pointed out, to you by the said, and unless the said shall pay to

you the said sum of Rs. together with Rs. , the costs of this

attachment, to hold the same until further orders from this Court.

You are further commanded to return this warrant on or before the

day of 19,with an endorsement certifying the day on which and manner in

which it has been executed, or why it has not been executed.

GIVEN under my hand and the seal of the Court, this day of 19

Schedule Judge

_____________________

No.9

WARRANT FOR SEIZURE OF SPECIFIC MOVEABLE PROPERTY ADJUDGED

BY DECREE. (0. 21, r. 31)

(Title)

To

The Bailiff of the Court.

WHEREAS was ordered by decree of this Court passed on the day

of 19 , In Suit No. of 19, to deliver to the plaintiff

the moveable property (or a share in the moveable property) specified in the schedule hereunto

annexed, and whereas the said property (or share) has not been delivered;

These are to command you to seize the said moveable property (or a share of the said moveable

property) and to deliver it to the plaintiff or to such person as he may appoint in his behalf.

GIVEN under my hand and the seal of the Court, this day of 19

Schedule

Judge

_________________

Principal

Interest

Cost

Costs of

execution

Further interest

583

No. 10

NOTICE TO STATE OBJECTlONS TO DRAFT OF DOCUMENT. (0. 21, r. 34)

(Title)

To

TAKE notice that on the day of 19, the decree-holder in the above suit

presented an application to this Court that the Court may execute on your behalf a deed of, whereof

a draft is hereunto annexed, of the immoveable property specil1ed hereunder, and that the day of

19 , is appointed for the hearing of the said application, and that you are at liberty to appear on the

said day and to state in writing any objection to the said draft.

Description of Property

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

No. 11

WARRANT TO THE BAILIFF TO GIVE POSSESSION OF LAND, ETC. (0. 21, L 35)

(Title)

To

The Bailiff of the Court.

WHEREAS the under mentioned property in the occupancy of has been decreed to the

plaintiff in this suit.

You are hereby directed to put the saidin possession of the same, and you are hereby authorized to

remove any person bound by the decree who may refuse to vacate the same.

GIVEN under my hand and the seal of the Court, this day of 19.

Schedule

Judge _______________

No. 12

NOTICE TO SHOW CAUSE WHY WARRANT OF ARREST SHOULD NOT

ISSUE(0.21, r. 37)

(Title)

To

WHEREAShas made application to this Court for execution of decree in Suit No. of 19 by

arrest and imprisonment afyour person, you are hereby required to appear before this Court on the

day of, 19, to show cause why you should not be committed to prision in execution of

the said decree.

GIVEN under my hand and the seal of the Court"this day of 19. ,

Judge

584

No. 13

WARRANT OF ARREST'IN EXECUTION. (0. 21, r. 38)

(Title)

To

"The Bailiff of the Court.

WHEREAS

the Court in Suit No. was adjudged by a decree of the Court in Suit No. of 19

,dated the

day of 19 to pay to the decree-holder the sum of Rs. as

noted in the margin, and whereas the said sum of Rs. has not been

paid to the said decree-holder in satisfaction of the said decree; These

are to command you to arrest the said judgment-debtor and unless the

said judgment-debtor shall pay to you the said sum of Rs. together

with Rs for the costs of executing this process, to bring the said

defendant before the Court with all convenient speed.

Your further commanded to return this warrant on or before the

day of . 19 , With an endorsement certifying

the day on which and manner,in which it has been executed, or the reason why it has not been

executed.

GIVEN under my hand and the seal of,the Court, this day of 19

Judge

______________________

No. 14

WARRANT OF COMMITTAL OF JUDGEMENT-DEBTOR TO JAIL. (0. 21 , r, 40)

( Title)

To

The Officer in charge of the Jail at

WHEREAS who has been brought before this Court the day of, 19 , under a

warrant in execution of a decree which was made and pronounced by the said Court on the

day of 19 , and by which decree it was ordered that the said should

pay ; And whereas the said has not obeyed the decree nor satisfied the Court that he

is entitled to be discharged from custody; You are hereby commanded and required to

take and receive the said into prison and keep him imprisoned therein for a period not

exceeding or until the said decree shall be fully satisfied, ot the said shall, be

otherwise entitled to be released according to the terms and provisions of section 58 of the Code

of Civil Procedure, 19008

GIVEN under my signature' add the seal of the Court, this day of 19 .

Judge

___________________

Decree

Principal

Interest

Cost

Execution

Total

585

No, 15

ORDER FOR THE RELEASE OF A PERSON IMPRISONED IN EXECUTION OF A

DECREE (Sections 58, 59)

(Title)

To

The Officer in charge of the Jail at

UNDER orders passed this day, you are hereby directed to set free judgment-debtor now

in your custody.

Dated

Judge

_________________

No. 16

AITACHMENT IN EXECUTION

PROHIBITORY ORDER, WHERE THE PROPERTY TO BE AITACHED CONSISTS

OF MOVEABLE PROPERTY TO WIDCH'THE DEFENDANT IS ENTITLED SUBIECT

TO A LIEN OR RIGHT OF SOME OTHER PERSON TO THE IMMEDIATE

POSSESSION THEREOF. (0. 21, r. 46)

(Title)

To

WHBREAS

has failed to satisfy a decree passed against on the day of 19 , inSuirNo.

of 19 , in favour of for Rs.; It is ordered that the defendant be, and is hereby,

prohibited and restrained until the further order of this Court, from receiving from the

following property in the possession of the said

that is to say,,to which .the defendant is entitled, subject. to any claim of the said " ;and

the saidis hereby prohibited and restrained, until the further order of this Court, from delivering

the said property to any person or persons whomsoever.

GIVEN under my hand and the seal of the Court,' this day of 19 .

Judge

_________________

586

No. 17

AITACHMENT IN EXECUTION

PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF DEBTS NOT

SECURED BY NEGOTIABLE INSTRUMENTS. (0. 21, r. 46)

(Title)

To

WHEREAS

has failed to satisfy a decree passed against on the

day of 19 .in Suit No. of 19, in favour of for Rs... ; It

ordered that the defendant be, and is hereby, prohibited and restrained, until the, further order of

this Court, from receiving from you a certain debt alleged now to be due from you to the said

defendant, namely,

and that you, the said be, and you are hereby, prohibited and restrained, until

the further order of this Court from making, payment of the said debt, or any part thereof, to any

person, whomsoever or otherwise than into this Court.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

____________________

No. 18

ATTACHMENT. IN EXE.CUTION

PROHIBITORYORDER WHERE THE, PROPERTY CONSISTS OF SHARES IN THE

CAPITAL OF A CORPORATION. (O. 21, r. 46)

(Title)

To

Defendant and

Secretary of Corporation,

To

WHEREAS has failed to satisfy a decree passed against on the

day of 19 in Suit No. of 19 ,in favour of ,forRs.

It is ordered that you, the defendant, be, and you are hereby, prohibited and restranied, until the

further order of this Court, from making any transfer of shares in the aforesaid

Corporation, namely,

or from receiving payment of any dividends thereon; and you, ,the Secretary

of the said Corporation, are hereby prohibited and restrained from 'permitting any such transfer or

making any such payment

GIVEN under my hand and the seal of the Court, this day of 19

Judge

587

No. 19

ORDER TO ATTACH SALARY OF PIBLIC OFFICER OR SERVANT OF RAILWAY

COMPANY OR LOCAL AUTHORITY. (O. 21, r. 48)

(Title) TO

WHEREAS

Judgment-debtor in the above named case, is a (describe office of judgment debtor) receivinig his

salary (or allowance) at your hands; and whereas

decree- holder in the said case, has applied in this Court for the attachment of

the salary (or allowances) of the said to the extent of due to him under the decree; You are

hereby required to withhold the said sum of from the salary of the said in monthly

instalments of

and to remit the said sum (or monthly instalments) to this Court.

GIVEN under my hand and the seal of!the Court; this day of 19 ,

Judge

________

No. 20

ORDER OF ATACHMENT OF NEGOTIABLE INSTRUMENT. (0. 21, r. 51 )

( Title)

To

The Bailiff of the Court.

WHERBAS an order, has been passed by this Court on the, day of 19 , for the

attachment of : You are hereby directed to seize and the said bring the same into

Court.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

___________________

588

No. 21

ATTACHMENT

PROHIBITORY ORDER. WHERE THE PROPERTY CONSISTS OF MONEY OR OF

ANY SECURITY IN THE CUSTODY OF A COURT OF JUSTICE OR

PUBLIC OFFICER (O. 21, r. 52)

(Title)

To

SIR,

The plaintiff having applied, under rule 52 of Order XXI of the Code of Civil

Procedure1908, for an attachment of certain money now in your hands (here state how the money

is supposed to be in the hands of the person addressed on what account, etc.), I request thatyou

will hold the said money of subject to the further order of:this Court

I have the honour to be,

SIR,

Your most obedient Servant.

Judge

"Dated the day of 19 .

________________

No. 22

NOTICE OF ATTACHMENT OF A DECREE TO THE COURT WHICH PASSED IT.

(O. 21, r. 53)

( Title)

To

The Judge of the Court of

SIR,

I have the honour to inform you that the decree obtained in your Court

on the day of 19 , by in Suit No. of 19 , in which

he was and was has been attached by this Court on the application or

the in the suit specified above. You are therefore requested to stay the

execution of the decree of your Court until you receive an intimation from this Court that the

present notice has been cancelled or until execution of the said decree is applied for by the holder

of the decree now sought to be executed or by his judgment-debtor.

I have the honour, etc.,

Judge

Dated the day of 19

___________________

589

No. 23

NOTICE OF ATTACHMENT OF A DECREE TO THE HOLDER OF THE

DECREE. (O. 21, r. 53)

( Title)

To

WHEREAS an applitation has been made in this Court by the decree-holder in the above suit for

the attachment of a decree obtained by you on the day of 19 ,in the Court

in Suit No. of 19 ,in which was and was ; It is

ordered that you, the said . . be, and you are hereby, prohibited and restrained,

until the further order of this Court, from transferring or charging the same in any way.

GIVEN under my hand and the.seal of the Court, this day of 19.

Judge

_____________________

No. 24

ATTACHMENT IN EXECUTION

PROHIBITORY ORDER WHERETHE PROPERTY CONSISTS OF IMMOVEABLE

PROPERTY (O. 21, r. 54)

( Title )

To

Defendant.

WHEREAS you have failed to satisfy a decree passed against you on the day of 19 , in

Suit No. of 19 , in favour of for Rs. ; It is ordered that you, the said

, be, and you are hereby, prohibited and restrained, until the further order of this Court,

from transferring or charging the property specified in the schedule hereunto annexed, by sale,

gift or otherwise, and that all person be, and that they are hereby, prohibited from receiving the

same by purchase, gift or otherwise.

GIVEN under my hand and the seal of the Court, this day of 19 .

Schedule

Judge

_________________

590

No. 25

ORDER FOR PAYMENT TO THE PLAINTIFF, ETC., OF MONEY, E.TC.. IN THE

HANDS OF A THIRD PARTY. (O. 21, r. 56)

( Title)

To

WHEREAS the following property has been attached in execution of a decree in Suit No.

of 19 ,passed on the day of 19 , in

favour of for Rs.; it is ordered that the property so attached, consisting of Rs. in money and

Rs.

in currency-notes, or a sufficient part thereof to satisfy the said decree, shall be paid over by you,

the said

to

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

____________________

No. 26

NOTICE TO ATTACHING CREDITOR. (O. 21, r. 58)

( Title)

To

WHEREAS has made application to this Court for the

removal of attachment on placed at your instance in execution of the decree in Suit

No. of 19 , this is to give you notice to appear before this Court on

the day of 19 , either in person or by a pleader

of the Court duly instructed to support your claim, as attaching creditor.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

591

No. 27

WARRANT OF SALE OF PROPERTY IN EXECUTION OF A DECREE FOR MONEY

(O. 21, r, 66)

( Title)

To,

The Bailiff of the Court

THESE are to command you to selI by auction, after giving days previous notice, by

affixing the same in this Court-house, and after making due proclamation, the property

attached under warrant from this Court, dated the day of 19 ,in execution of a

decree in favour of in Suit No. of 19 or so much of the said property as

shall realize the sum of Rs. , being the of the said decree and costs still

remaining unsatisfied.

You are further commanded to return this warrant on or before the day of 19

, with endorsement certifying the manner 'in which it has been executed, or reason why it

hoo not been executed.

GIVEN under my hand and the seal of the Court this day of 19 .

Judge

___________________

No. 28.

NOTICE OF THE DAY FIXBD FOR SETTLING A SALE PROCLAMATION

(O. 21, r. 66)

( Title)

To

WHEREAS in the above-named suit Judgment-debtor holder, has

applied for the sale of , the decree

You are hereby informed that the day of 19 has been

fixed for settling the terms of the proclamation of sale.

GIVEN' under my hand and the seal of the Court this day of 19

Judge

______________________

592

No. 29

PROCLAMATION OF SALE, (0. 21, r. 66)

(Title)

Notice is hereby given that, under rule 64 of Order XXI of the Code of Civil Procedure, 1908, an

order has been passed by this Court for the sale of -(1) SuitNo. of the attached property

mentioned in the annexed 19 ,decided by the schedule, in satisfaction of the claim of the

decree of in which holder in the suit (1) mentioned in the margin, was plaintiff and

amounting with costs and interest up to date of was defendant sale to the sum

of

The sale will be by public auction, and the property will be put up for sale in the lots specified in the

schedule. The sale will be of the' property of the judgment-debtors above-named as mentioned in the

schedule below; and the liabilities and claims attaching to the said property, so far as they have been

ascertained, are those specified in the schedule against each lot,

In the absence of any order of postponement, the sale will be held by at the monthly sale

commencing at o'clock on the at .In the, event, however of the

debt above specifieci and of the costs of sale beign tendered or paid before the knocking down of any

lot, the sale will be stopped.

At the sale the public generally are invited to bid either personally or by duly authorised agent. No bid

by, or behalf of, the judgment-creditors above mentioned, however, will be accepted, nor will any sale

to them be valid without the express permission of the Court previously given. The

following are the further.

Conditions of Sale

1. The particulars specified in the schedule below have been stated to the best of the information of the

Court, but the Court will not be answerable for any error, mis-statement or omission in this

proclamation.

2. The amount by which the biddings are to be increased shall be determined by the officer conducting

the sale. In the event of any dispute arising as to the amount bid, or as to the bidder, the lot shall at once

be again put up to auction.

3. The highest bidder shall be declared to be the purchaser of any lot, provided always that he is legally

qualified to bid, and provided that it shall be in the discretion of the Court or officer holding the sale to

decline acceptance of the highest bid when the price' offered appears so clearly inadequate as to make it

advisable to do so.

4. "For reasons..recorded, it shall be in the discretion of the officer conducting the sale to adjourn it

subject always to the provisions of rule 69 of Order XXI.

5, In the case of moveable property, the price of each lot shall be paid at the time of sale or as soon after

as the officer holding the sale directs, and in default of payment the property shall forthwith be again put

up and re-sold.

6. In the case of immoveable property, the person declared to 'be the purchaser shall pay immediately after

593

such declaraticn a deposit 25 per cent on the amount of his purchase-money to the officer conducting the

sale and in default of such deposit the property shall forthwith be put up again and re-sold.

7, The full amount of the purchase-money shall be paid by the purchaser before the Court closes on the

fifteenth day after the sale of the property exclusive' of such day or if the fifteenth day be a Sunday or

other holiday; then on the first office day after the fifteenth day.

8. In default of payment of the' 'balance of purchase-money within the period allowed, the propetty shall be

re-sold after the issue of a fresh notification of sale. The deposit, after defraying the expenses of the sale;

may, if the Court this fit, be forfeited to Governrnent and the defaulting purchaser shall forfeit an claim to the

property or to any part of the sum for which it may be subsquently sold.

GIVE" under my hand and the seal of the Court, this day of 19.

Judge

___________________

Schedule of Property

No. of lot

Description of

property to be

sold, with the

name of each

owner where

there are more

judgment debtors

than one.

The revenue

assessed upon

the estate or

part of the estate

if the property to

be sold is an

interest in an

estate or a part of

an estate

paying revenue

to Government.

Detail of any

incumbrances to

which the

property is liable.

Claims if any which

have been put

forward to the

property and any

other known

particulars bearing

on its nature and

value

__________________

594

No. 30

ORDER ON THE NAZIR FOR CAUSING SERVICE OF PROCLAMATION OF SALE

( O. 2, r, 66 ) ( Title)

To

The Nazir of the Court.

WHEREAS an order has been made for the sale of the property of the judgment-debtor specified

in the schedule hereunder annexed, and whereas the day of 19 , has been fixed for

the

sale of the said property copies of the

proclamation of sale are by this warrant made over to you, and you are hereby ordered to have

the proclamation published by beat of drum within each of the properties specified in the said

schedule, to affix a copy.of the said proclamation on a conspicuous part of each of the said

properties and afterwards on the Court-house, and then to su bmit to this Court a report showing

the dates on which and the manner in which the proclamations have been published.

Dated thc day of 19

Schedule

Judge

____________________

No. 31

CERTIFICATE BY OFFICER HOLDING A SALE OF THE DEFICIENCY OF PRICE

ON A RE-SALE OF PROPERTY BY REASON OF THE PURCHASER'S

DEFAULT.

(O. 21, r.71)

( Title)

Certified that at the re-sale of the property in execution of the decree in the above-named suit, in

consequence of default on the part of

purchaser there was a deficiency the price of the said property amounting to Rs. , and that the

expenses attending such

resale amounted to Rs. , making a total of Rs. which sum is recoverable from the

defaulter.

Dated the day of 19

Officer holding the sale

_______________________

595

No. 32

NOTICE TO PERSON IN POSSESSION OF MOVEABLE PROPERTY SOLD IN

EXECUTION (O, 21, r. 79 )

( Title)

To

WHEREAS

has become the purchaser at a public sale in execution of the decree in the above suit of

now in your possession, you are hereby prohibited from delivering possession

of the said to any person except the Said

GIVEN under my hand and the seal of the Court, this day of 19

Judge

____________________

No. 33

PROHIBITORY ORDER AGAINST PAYMENT OF DEBTS SOLD IN EXECUTING TO

ANY OTHER THAN THE PURCHASER. (O. 21, r. 79)

( Title)

To

WHEREAS has

become the purchaser at a public sale in execution of the decree in the above suit of

being debts due from you to you ; It is ordered that you be, and

you are hereby, prohibited from

reciving, and you from making payment of, the said debt to any

person or persons except the said

GIVEN under the hand and seal of the Court, this day of 19.

Judge

__________________

596

No. 34

PROHIBITORY ORDER AGAINST THE TRANSFER OF SHARE SOLD IN

EXECUTION. (O.21, r. 79 ).

( Title)

To and Secretary of

Corporation.

WHEREAS has become the purchaser at a public sale in execution

of the decree, in the above suit, of certain shares in the above Corporation, that is to say, of

standing

in the name of you ;It is ordered that you

be, and you hereby, prohibited from making transfer of the said shares to any person except the

said

the purchaser aforesaid, or from receiving any dividends thereon; and you

, Secretary of the said Corporation from permitting any such transfer or making any such

payment to any person, except the said the purchaser aforesaid.

GIVEN under my hand and the seal of the Court, this day of 19.

Judge

_______________________

No. 35

CERTIFICATE TO JUDGMENT DEBTOR AUTHORISING HIM TO MORTGAGE,

LEASE OR SELL PROPERTY, (O. 21, r. 83 ).

( Title)

WHEREAS in execution of the decree passed in the above suit an order was made on the day of

19 , for the

sa1e of the under-mentioned property of the judgment-debtor

,and whereas the Court has, on the application of the said judgment-debtor, postponed the said

sale to enable him to raise the amount of the decree by mortgage, lease or private sale of the said

property or of some part thereof:

This is to certify that the Court doth hereby authorise the said judgment-debtor to make the

proposed mortgage, lease or sale within a period of from the date of this certificate;

provided; that all monies payable under such mortgage, lease or sale shall be paid into this Court

and not to the said judgment-debtor.

Description of property

GIVEN under my hand and the seal of the Court, this day of 19.

Judge

597

No. 36

NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE.

( O. 21, rr. 90, 92 ) ,

( Title)

To

WHEREAS the under-mentioned property was sold on the day of 19 ,

in execution of the decree passed in the above-named suit, and whereas , the decree

holder [or judgment-debtor], has applied to this Court to set aside the sale of the said property on

the ground of a material irregularity or fraud in publishing [or conducting] the sale, namely-that

Take notice that if you have any 'cause to show why the said application should not be granted

you should appear with your proofs in this Court on theday of 19 , when .the said

application will be heard and determined.

GIVEN under my hand and the seal of the Court, this day of 19 .

Description of properly

Judge.

__________________

No. 37

NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE. (O 21, rr. 90,

92)

( Title)

To

WHEREAS , the. purchaser

of the under-mentioned property sold on the day of 19, in execution of the decree

passed in the above-named suit, has applied to this Court to set aside the sale of the said property

on the ground that , the

judgment-debtor, had no saleable interest therein:

Take notice that if you have any cause 'to show why the said application should not be granted,

you should appear with your proofs in this Court on the day of 19 . when

the said appiication will be heard and determined.

GIVEN under my hand and the seal of the Court, this day of 19.

Descripthn of pn;perty

Judge

598

No. 38

CERTIFICATE OF SALE OF LAND. (O. 21, r. 94)

(Title)

This is to certify that has been declared the purchaser at a sale by public

auction on the dayof 19 ,of

in execution of decree in this suit, and that the said sale has been-duly confirmed by this Court.

GIVEN under my hand and the seal of the Court, this day of 19 ,

Judge.

____________________

No. 39

ORDER FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN

EXECUTION. (0. 21, r. 95)

( Title)

To

The Bailiff of the Court.

WHEREAS has become the certified purchaser of

at a sale in execution of decree in suit No. 19 ; You are hereby ordered to

put the said ; the certified purchaser, as aforesaid, in possession of the same.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

______________________

No. 40

SUMMONS TO APPEAR AND ANSWER CHARGE OF OBSTRUCTING EXECUTION

OF DECREE. (O. 21, r. 97)

( Title)

To

WHEREAS , the

decree-holder in the above suit, has complained to this Court that you have resisted (or

obstructed) the officer charged with the execution of the warrant for possession:

You are hereby summoned to appear in this Court on the day of

19 at A.M., to answer the said complaint.

GIVEN under my hand and the seal of the Court, this day of 19.

Judge.

____________________

599

No. 41

WARRANT OF COMMITAL (O. 21, r.98)

{Title)

To

The Officer in Charge of the Jail at

WHEREAS the under-mentioned property has been decreed to the plaintiff in this suit,

and whereas the Court is satisfied that without any just cause resisted [or obstructed] and is

still resisting [or obstructing] the said in obtaining possession of the

property, and whereas the said has made application to this Court that the said be

committed to prison;

You are hereby commanded and required to take and receive the said

into prison and to keep him imprisoned therein for the period of days.

GIVEN under my hand and the seal of the Court, this day of 19.

Judge.

__________________

No. 42

AUTHORITY OF THE COLLECTOR TO STAY PUBLIC SALE OF LAND, (Section 72)

( Title)

To

Collector of

SIR,

In answer to your communication No. , dated

.representing that the sale in execution of the decree in this suit of land situate within

your district is objectionable, I have the honour to inform you that you are authorised to make

provision for the satisfaction of the said decree in the manner recommended by you.

I have the honour to be

SIR,

Your obedient servant

Judge

_________________

600

APPENDIX F

SUPPLEMENTAL PROCEEDINGS

No.1

WARRANT OF ARREST BEFORE JUDGMENT (O. 38. r. 1)

(Title)

To

The Bailiff of the Court.

WHEREAS , . the plaintiff in the above

Suit, claims the sum of Rs. as noted in the margin,

and has proved to the satisfaction of the Court that there is probable cause for believing that the

defendant

is about to;These are to command you to demand and receive

from the said the sum of Rs. as

sufficient to satisfy the plaintiff's claim, and unless the said

sum of Rs. is forth with delivered to you by or on behalf

of the said to take the said into custody. and to bring him

before this Court, in order that he may show cause why he

should not furnish security to the amount of Rs. for his

personal appearance before the

Court, until such time as the said suit shall be fully and finally

disposed of. and until satisfaction of any decree that may be

passed against him in the suit.

GIVEN under my hand and the seal of the Court, this day of 19.

Judge.

____________________

No.2

SECURITY FOR APPEARANCE OF A DEFENDANT ARRESTED BEFORE

JUDGMENT (O. 38. r. 2)

(Title)

WHEREAS at the instance of the plaintiff in the above suit, the

defendant, has been arrested and brought before the-Court;

And whereas on the failure of the said defendant to show cause why he should not furnish

security for his appearance, the Court has ordered him to furnish such security:

Therefore I have voluntarily become surety and do hereby bind

myself. my heirs and executors, to the said

Principal

Interest

Costs

Total

601

Court, that the said defendant shall appear at any time when called upon while the suit is pending

and until satisfaction of any decree that may be passed against him in the said suit; and in default

of such appearance I bind myself, my heirs and executors, to pay to the said Court, at its order,

any some of money that may be adjudged against the said defendant in the said suit.

Witness my hand at this day of 19.

(Signed)

Witnesses

1.

2.

_________________

No.3

SUMMONS TO DEFENDANT TO APPEAR ON SURETY'S APPLICATION FOR

DISCHARGE, (O. 38, r. 3)

(Title)

To

WHEREAS , who became surety on the day of 19 , for your

appearance in the above suit, has applied to this Court to be discharged from his obligation:

Your are hereby summoned to appear in this Court in person on the

day of 19,at A.M., when the said application will be heard

and determined.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

______________________

602

No.4

ORDER FOR COMMITTAL. (0. 38, r. 4)

(Title)

To

WHEREAS , plaintiff in this suit,

has made application to the Court that security be taken for the appearance of , the

defendant, to answer any judgment that may be passed against him in the suit; and whereas the

Court has called upon the defendant to furnish such security, or to offer a sufficient deposit in

lieu of security, which he has failed to do it is ordered that the said defendant be committed

to prision until the decision of the suit or, if judgment be pronounced against him, until

satisfaction of the decree.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

No.5

ATTACHMENT BEFORE JUDGMENT, WI'I1H ORDER TO CALL FOR SECURITY

FOR FULFILMENT OF DECREE. (O. 38, r. 5)

( Title)

To

The Bailiff of the Court.

WHEREAS has proved to the satisfaction of the Court that the

defendant in the above suit

These are to command you to call upon the said defendant on or before the day of 19

either to furnish security for the sum of rupees to produce and place at the disposal

of this Court when required or the value thereof, or such portion of the value as may be

sufficient to satisfy any decree that may be passed against him ; or w. appear and show cause

why he should not furnish security; and you are further ordered to attach the said

and keep the same under safe' and secure custody until the further order of the Court; and you are

further commanded to return this warrant on or before the day of 19

with an endorsement certifying the date on which and the manner in which it has been executed.

or the reason why it has not been executed.

GIVEN under my hand and the seal of the Court, this day of 19

Judge

___________________

603

No. 6

SECURITY FOR THE PRODUCTION OF PROPERTY. (O. 38, r.5)

( Title)

WHEREAS at the instance of, the plaintiff in the above suit, the defendant has been

directed by the Court to furnish security in the sum of Rs.to produce and

place at the disposal of the Court the property specified in the schedule hereunto annexed;

Therefore, I have voluntarily become surety and do hereby bind myself, my heirs and

executors, to the said Court, that the said defendant shall produce and place at the disposal of the

Court, when required, the property specified in the said schedule, or the value of the same, or

such portion thereof as may be sufficient to satisfy the decree; and' in default of his so doing, I

bind myself; my heirs and executors, to pay to the said Court, at its order, said sum of Rs. or

such sum not exceeding the said sum as the said Court may adjudge

Schedule

Witness my hand at this day of 19.

(Signed)

Witnesses

1.

2.

No.7

ATTACHMENT BEFORE JUDGMENT, ON PROOF OF FAILURE TO FURNISH

SECURITY. (O. 38, r. 6)

( Title)

To

The Bailiff of the Court.

WHEREAS the plaintiff in this suit has applied to the Court to call upon , the

defendant, to furnish security to fulfill any decree that may be passed against him in the suit, and

whereas the Court has called upon the said

to furnish such security, which he has failed to do; These are to command you to attach , the

property of the said,

and keep the same under safe and secure custody until the further order of the Court; and you are

further commanded to return this warrant on or before the day of 19 , with an endorsement

certifying the date on which and the manner in which it has been executed, or the reason why it

has not been executed.

GIVEN under my hand and the seal of the Court, this day of 19

Judge

______________________

604

No.8

TEMPORARY INJUCTIONS. (O, 39, r. 1)

( Title)

Upon motion made unto this Court by . pleader

of [or Counsel for] the plaintiff A.B., and upon reading the petition of th said plaintiff in this

matter filed [this day) or the plaint filed in this suit

on the day of,or the written statement of the said plaintiff filed on the

day of ] and upon hearing the evidence of

and in support thereof [if after notice and defendant

not appearing: add, and also the evidence ofas to service of notice of this motion upon the

defendant C.D. J: This Court cloth order that an injuction be awarded to restrain the defendant

c.D., his servants, agents and workmen, from pul1ing down, or suffering to be pulled down, the

house in the plaint in the said suit of the plaintiff mentioned [or in the written statement, or

petition, of the plaintiff and evidence at the hearing of this motion mentioned], being No.9,

Oilmongers Street, Hindupur, in the Taluk of, and from selling the materials whereof

the said house is oomposed, until the hearing of this suit or until the further order of this Court.

Dated this day of 19

Judge

______________________

[ Where the injunction is sought to restrain the negotiation of a note or bill. the ordering part of

the order may run thus :- ]

to restrain the defendants and

from parting without of the custody of them or any of them or endorsing, assigning or negotiating

the promissory note [ or bill of exchange] in question,

dated on or about the , etc., mentioned in

the plaintiff's plaint [ or petition} and the evidence heard at this motion until the hearing of this

suit, or until the further order of this Court.

[In Copyright cases]to restrain the defendant C.D., his servants, agents or workmen, from

printing, publishing or vending a book, called, or any part thereof, until the, etc.

[ Where part only of a book is to be restrained]

to restrain the defendant C. D., his servants, agents or work. men, from printing, publishing, selling

or otherwise disposing of such parts of the book in the plaint [or petition and evidence, etc ]

mentioned to have been published by the defendant as hereinafter specified, namely, that part

of the said book which is entitled and also that part which is entitled [or which is

contained in page

to page both inclusive] until , etc.

605

[In Patent cases] to restrain the defendant CD., his agents,

servants and workmen, from making or vending any perforated bricks [ or as the case may be]

upon the principle of the inventions in the plaintiff's plaint [or petition, etc., or written statement,

etc.,] mentioned, belonging to the plaintiff's or either of them, during the remainder of the

respective terms of the patents in the plaintiff's plaint [or as the case may be] mentioned, and (from

counterfeiting, imitating or resembling the same inventions, or either [of them, or making any

addition thereto, or subtraction therefrom, until the hearing, etc.

[ In cases of Trademarks] to restrain the defendant C.D.,

his servants, agents or workmen, from selling, or exposing for sale, or procuring to be sold, any

composition or blacking [or as the case may be] described as or purporting to be blacking

manufactured by the plaintiff A.B., in bottles having affixed thereto such labels as in the plaintiff's

plaint [or petition, etc.] mentioned, or any other labels so contrived or expressed as, by colourable

initation or otherwise, to represent the composition or blacking sold by the defendant to be the

same as the composition or blacking manufactured and sold by the plaintiff A.B., and from using

trade-cards so contrived or expressed as to represent that any composition or blacking sold or

proposed to be sold by the defendant is the same as the composition or blacking manufactured or

sold by the plaintiff A.B., until the, etc.

[ To restrain a partner from in any way interjering in the business]

to restrain the defendant CD., his agents and servants, from entering into any contract, and from

accepting, drawing, endorsing or negotiating any bill of exchange, note or written security in the

name of the partnership-firm of B, and D., and from contracting any debt, buying and selling any

goods, and from making or entering into any verbal or written promise, agreement or undertaking,

and from doing, or causing'to be done, [any act, in the name or on the credit of the said partnership-

firm of B. and D., or whereby the said partnership firm can or may in any manner become or be

made liable to or for the payment of any sum of money, or for the performance of any contract,

promise or undertaking until the, etc.

________________________

No. 1[9]

APPOINTMENT OF A RECEIVER. (O. 40, r. 1)

( Title) To

WHEREAS has been attached in execution of a decree passed in the above

suit on the day of 19 , in favour of ; You are hereby

(subject to your giving security to the satisfaction of the Court) appointed receiver of the said

property under Order XL of the Code of Civil Procedure, 1908, with full powers under the

provisions of that Order.

You are required to render a due and proper account of your receipts and disbursements in

1 The number of the form, originally misprinted as 6, was corrected by the Repealing and Amending act, 1914 (10 of 1914), s.2 and First Sch.,

2 The number of the form, originally misprinted as 7, was corrected, ibid.

606

respect of the said property onYou wil1 be entitled to remuneration at the rate of per cent. upon

your receipts under the authority of this appointment.

GIVEN under my hand and the seal of the Court, this day of 19.

Judge

____________________

No. 2[10]

BOND TO BE GIVEN BY RECEIVER, (O. 40, r. 3)

( Title)

KNOW l all men by these presents, that we, and

and , are jointly and severally bound to

of the Court of in Rs.

Lto be paid to the said or his successor in office

for the time being. For which payment to be made we bind ourselves, and each of us, in the

whole, our and each of our heirs, executors and administrators, jointly and severally, by these

presents.

Dated this day of 19 .

Whereas a plaint has been filed in this Court by against for the' purpose of [here insert

the object of suit] :

And whereas the said has been appointed,

by order of the above-mentioned Court, to receive the rents and profits of the immovable

property and to get in the outstanding moveable property of in the said plaint named;

Now the condition of this obligation is such, that if the above-bounden shall duly account

for all and every the sum and sums of money which he shall so receive on account of the rents

and profits of the immovable property, and in respect of the moveable property, of the said at

such periods as the said Court shall appoint, and shall duly pay the balances which

shall frol11 time to time be certified to be due from him as the said Court hath directed or shall

hereafter direct, then this obligation shall ,be void, otherwise it shall remain in full force.

Signed and delivered by the above-bounden in the presence of .

Note.-If deposit of money is made, the memorandum thereof should follow the terms of the

condition of the bound.

_____________________

607

APPENDIX G

APPEAL, REFEREN.CE AND REVIEW

No.1

MEMORANDUM OF APPEAL (O. 41, r. I)

(Title)

The above-named appeals to

the Court at from the

decree of in Suit No. of 19

dated the day of 19 ,and

sets forth the following grounds of objection to the decree appealed from, namely :

________

No.2

SECURITY BOND TO BE GIVEN ON ORDER BEING MADE TO STAY EXECUTION

OF DECREE. (O.41, r. 5)

(Title)

To

This security bond on stay of execution of decree executed by

; . witnesseth:

That, the plaintiff in Suit No. of 19 ,

having sued, the defendant, in this Court and a decree hamng been passed on the day of

1'9 in, favour of the plaintiff, and the deffendant having preferred an appeal from the said decree

in the Court, the said appeal is still pending.

Now the plaintiff decree-holder having applied to execute thc decree, the defendant has made an

application praying for stay of exection and has called.upon to furni.sh security. Accordingly I,

of my own free will, stand security to the extent of .Rs. , mortgaging the properties specified

in thc schedule hereunto annexed and covenant that if the decree of the first Court be confirmed

or varied by the Appellate Court the said defendant shall duly act in accordance with the decree

of the Appellate Court and shall pay whatever may be payable by him thereunder, and if he

should fail therein then any amount so payable shall be realized from the properties hereby

mortgaged, and if the proceeds of the sale of the said properties are insuficient to pay the amount

due, I and my legal representatives will be personally liable to pay the balance. To this effect I

execute this seucrity bond, this day of . 19 . '

Schedule

(Signed)

Witnesses

1.

2.

608

No. 3

“SECURITY BOND TO BE GIVEN DURING THE PENDENCY OF APPEAL

(O. 41, r. 6)

(Title)

To

THIS security bond on stay of execution of decree executed by Witnesseth :

That , the plaintiff in Suit No.

having sued ,the defendant, in this Court and

decree having been passed on the day of 19 in favour of the plaintiff, and

the defendant having preferred an appeal

from the said decree in the Court, the said appeal

is still pending.

Now the plaintiff decree-holder has applied for execution of the said decree and has been called

upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs.

, mortgaging the properties specified in the schedule hereunto annexed, and covenant that,

if the decree of the first Court be reversed or varied by the Appellate Court, the plaintiff shall

restore any property which may be or has been taken in execution of the said decree and shall duly

act in accordance with the decree of the appellate Court and shall pay whatever may be payable

by him thereunder, and if he should fail therein then any amount so payable shall be realized from

the properties hereby mortgaged, and if the proceeds of the sale of the said properties’ are

insut&cient to pay the amount due, I and_ my legal representatives will be personally liable to pay

the balance. To this effect I execute this security bond this day of 19.

Schedule

(Signed)

Witnesses

1.

2.

________________

No. 4

SECURITY FOR COSTS OF APPEAL. (O. 41, r. 10)

( Title)

To

'THIS security bond for costs of appeal executed by

witnesseth:---

This appellant has preferred an appeal from the decree in Suit No. of 19 ,against the

respondent, and has been called upon to furnish security, Accordingly I, of my own free will, stand

security for the costs of the appeal, mortgaging the properties specified in the schedule hereunto

annexed; .I shall not transfer the said properties or any part thereof, and in the event of any default

on the part of the appellant, I shall duly carry out any order that may be made against me with

regard to payment of the costs of appeal. Any amount so payable shall be realized from the

properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient

609

to pay the amount due, I and my legal representatives will be personally liable to pay the balance.

To this effect I execute this security bond this day of 19 .

Schedule

(Signed)

Witnessed by

1.

2.

_______________

No. 5

INTIMATION OF LOWER COURT OF ADMISSION OF APPEAL. (O. 41, r, 13)

( Title)

To

You are hereby directed to take notice that the in the above suit, has

preferred an appeal to this Court from thedecree passed by you therein on the

day of 19 .

You are requested to said with all practicable despatch all mataterial papers in the suit.

Dated the day of 19.

Judge

______________________

No.6

NOTICE TO REEPONDENT OF THE DAY FIXED FOR THE HEARING OF THE

APPEAL (O. 41, r. 14)

( Tille)

APPEAL from the of the Court of dated the day of 19.

To

TAKE notice that an appeal from the decree of in this case has been presented by

and registered in this Court, and that the day of 19 has been fixed by this

Court for the hearing of this appeal.

If no appearance is made on your behalf by yourself, your pleader, or by some one by law

authorised to act for you in this appeal, it will be heard and decided in your absence.

GIVEN under my hand and the seal of the Court, this day of 19.

Judge

Note.-If a-stay of execution has been ordered, intimation should be given of the fact on this

notice.

610

No.7

NOTICE TO A PARTY TO A SUIT NOT MADE A PARTY TO THE APPEAL BUT

JOINED BY THE COURT AS A RESPONDENT. (O. 41, r. 20)

( Title)

To

WHEREAS you were a party in suit No. of 19 in the Court of , and whereas the

has preferred an appeal to this Court from the decree passed against him in the said suit and it,

appears to this Court that you are interested in the result of the said appeal:

This is to give you notice that this Court has directed you to be made a respondent in the said

appeal and has adjourned the hearing thereof till the day of 19, at A.M.

If no appearances made on your behalf on, the said day and at the said hour the appeal will be

heard and decided in your absence.

GIVEN under my hand and the seat of the Court, this day of 19.

Judge

____________________

NO. 8

MEMORANDUM OF CROSS OBJECTIONS. (O. 41, r.22)

(Title)

WHEREAS the has preferred an appeal to the Court at from the decree of

in Suit No. of 19 , dated the day of 19, and whereas notice of the day fixed

for hearing the appeal was served on the on the day of 19.

the files this memorandum of cross objection under rule 22 of Order XLI of the Code of Civil

Procedure, 1908, and sets forth the following grounds of objection to the appealed from namely:-

________________

No.9

DECREE IN APPEAL. (O. 41, r. 35)

(Title)

Appeal No. of 19 from the decree of the Court dated the day of

19.

Memorandum of Appeal

Plaintiff

Defendant

The above-named appeals to the Court at from the decree of

above suit-dated the day of 19 , for the following reasons, namely:----

611

This appeal coming on for hearing on the day of 19, before in the

presence, for the appellant and of for the respondent, it is ordered

The costs of this appeal, as detailed below, amount to Rs. are to be paid by . The

costs of the original suit are to be paid by

GIVEN under my hand this day of 19.

Judge

Costs of Appeal

Appellant

Amount

Respondent

Amount

1. Stamp for

memorandum of

appeal

2. Do for power

3. Service of

processes

4. Pleader`s fee on

Rs.

Total….

Rs A. P.

Stamp for power

Do for petition

Service of processes

Pleader`s fee on Rs.

Total …

Rs A. P.

No. 10

APPLICATION TO APPEAL in forma pauperis (O. 44, r. 1)

(Title)

I theabove-named, present the, accompanying memorandum of

appeal from the decree in the above suit and apply to be allowed to appeal as a pauper.

Annexed is a full and true schedule of all the moveable and immoveable property belonging

to me with the estimated value thereof.

Dated the day of 19 .

(Signed)

Note.- Where the application is by the plaintiff he should state whether he applied and was

allowed to sue in the Court of first instance as a pauper.

_______________

612

No. 11

NOTICE OF APPEAL INFORMA PAUPERIS (O. 44, r. l)

(Title)

WHEREAS the above-named has applied to be" allowed

to appeal as a pauper from the decree in the above suit 'dated the day of 19 and

whereas the day

of 19 has been fixed for hearing the application, notice is hereby

given to you that if you desire to show cause why the applicant should not be allowed to appeal

as a pauper an opportunity will be given to you of doing so on the afore-mentioned date.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

_______________

No. 12

NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO TRE SUPREME

COURT SHOULD NOT BE GRANTED.(O. 45. r. 3)

(Title)

To

Take notice that has applied to this Court for a certificate

that as regards amount or: value and nature the above case fulfils the requirements of section 110

of, theCode of Civil Procedure, 1908, or that it is otherwise a fit one for appeal to the Supreme

Court.

The day of 19 is fixed for you to show cause why the Court should

not grant the certificate asked for.

GIVEN under my hand and the seal of the Court, this day of 19.

Registrar

No. 13

NOTICE TO RESPONDENT OF ADMISSION OF APPEAL TO THE SUPREME

COURT (O. 45, r. 8)

(Title)

To

WHEREAS , the

in the above case, has furnished the security and made the deposit required by Order XLV, rule

7, of the Code of Civil Procedure, 1908 :

Take notice that the appeal of the said to the Supreme Court has been

admitted on the day of 19

GIVEN under my hand and the seat of the Court, this day of 19.

Registrar

613

No. 14

NOTICE TO SHOW CAUSE WHY A REVIEW SHOULD NOT BE OBTAINED

(O. 47, r. 4)

(Title)

To

TAKE notice that has applied to this Court for a review of its decree passed

on the day of 19 in the above case. The day of

19 is fixed for you to show cause why the Court should not grant a review of its decree in

this case

GIVEN under my hand and the seal of this, Court, this day of 19.

Judge

____________

APPENDIX H

MISCELLANEOUS

AGREEMENT OF PARTIES AS TO ISSUES TO BE TRIED (O. 14, r. 6)

(Title)

WHEREAS we, the parties, in the above suit, are agreed as to the question of fact [or of law] to

be decided between us and the point at issue between us is whether a claim founded on a bond,

dated the day of 19 and filed as Exhibit in

the said suit is or is not beyond the statute of limitation (or state the point at issue whatever it

may be) :

We therefore severally bind ourselves that, upon the finding of the Court in the negative [or

affirmative] of such issue, will pay to the said the sum of Rs. [or such suit as the

Court shall hold to be due thereon, and I the said will accept the said sum of Rupees (or

such as the Court shall hold to be due) in full satisfaction of my claim on the bond aforesaid [or

that upon such finding I, the said will do or abstain from doing etc., etc

Plaintiff

Defendant

Witnesses----

1.

2.

Dated the day of 19.

_______________

614

No. 2

NOTICE OF APPLICATION FOR THE TRANSFER OF A SUIT TO ANOTHER

COURT FOR TRIAL (SECTION 24)

In the Court of the District Judge of

No. of 19

To

WHEREAS an application, dated the day of 19 has been made to this

Court by the in Suit No. of 19 now pending in the Court of the at, in

which is plaintiff and is defendant, for the transfer of the suit for trial to the Court

of the at

You are hereby informed that the day of 19 has been fixed for the hearing

of the application, when you will be heard if you desire to offer any objection to it.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

______________

No. 3

NOTICE OF PAYMENT INTO COURT. (O. 24, r. 2)

(Title)

TAKE notice that the defendant has paid into Court Rs. and says that the sum is sufficient to

satisfy the plaintiff`s claim in full.

X. Y., Pleader for the defendant

To Z, Pleader for the plaintiff

_______________

No.4

NOTICE TO SHOW CAUSE (GENERAL FORM)

(Title)

WHEREAS the above-named has made application to this Court

that

You are hereby warned to appear in this Court in person or by a pleader duly instructed on the

day of 19 . at o'clock in the forenoon, to show cause against the applica-

tion, failing wherein, the said application will be heard and determined ex parle.

GIVEN under my hand and the seal of the Court this day of 19.

Judge

______________

615

No.5

LISTS OF DOCUMENTS PRODUCED BY PLAINTIFF (O. 13, r.1)

DEFENDANT

(Title)

No. Description of

documents

Date, if any,

which the

document bears

Signature of party or pleader

1 2 3 4

No.6

NOTICE TO PARTIES OF THE DAY FIXED FOR EXAMINATION OF A WITNESS

ABOUT TO LEAVE THE JURISDICTION. (0. 18, r. 16)

(Title)

To

Plaintiff (or defendant).

WHEREAS in the above suit application has been made to the Court by

that the examination of, a witness required by the said , in the

said suit may be taken immediately; and it has been shown to the Court's satisfaction that

the said witness is about to leave the Court's jurisdiction (or any other good and sufficient cause

to be stated);

TAKE notice that the examination of the said witness will be taken by the Court on

the day of 19.

Dated the clay of 19 .

Judge

_____________________

616

No.7

COMMISSION TO EXAMINE ABSENT WITNESS. (0. 26, rr. 4, 18)

(Title)

To

WHEREAS the evidence of is required by the in the above suit;

and whereas ; you are requested to take the evidence on interrogatories [or viva

voce] of such witness, and you are hereby appointed Commissioner for that purpose. The

evidence will be taken in the presence of the parties or their agents if in attendance, who wi!! be

at liberty to question the witness on the points specified, and you are further requested to make

return of such evidence as soon as it may be taken.

Process to compel the attendance of the witness will be issued by any Court having

jurisdiction on your application.

A sumof Rs. , being your fee in the above, is herewith forwarded.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

___________________

No.8

LETTER OF REQUEST (0. 26, r. 5)

(Title)

(Heading;-To the President and Judges of, etc., etc., or as the case may be)

WHEREAS a suit is now pending in the in which A. B. is plaintiff and C.D. is

defendant; And the said suit the plaintiff claims.

And whereas it has been represented to the said Court that it is necessary for the purposes of justice

and for the due determination of the matters in dispute between the parties, that the following

persons should be examined its witnesses upon oath touching such matters, that is to say:

E. F., of

G., H., of and

I. J., of

And it appearing that such witnesses are resident within the jurisdiction of your honourable

Court;

Now I , as the of the said Court, have the honour to request, and do

hereby request, that for the reasons aforesaid and for the assistance of the said Court, you as the

President and Judges of the said ,or some one or more of you, will be pleased to

summon the said witness (any such other witnesses as the agents of the said plaintiff and defendant

shall humbly request you in writing so to summon) to attend at such time and place as you shall

appoint before some one or more of you or such other person as according to the procedure of your

Court is competent to take the examination of witnesses, and that you will cause such witnesses'to

be examined upon the interrogatories which accompany this letter of request.(or viva voce)

touching the said matters in question in the presence of the agents of the plaintiff and defendant,

or such of them as shall, on due notice given, attend such examination.

617

And I further have the honour to request that you will be pleased to cause the answers of the said

witnesses to be reduced into writing, and call books, letters, papers and documents produced 'upon

such examination to be duly marked for identification, and that you will be 'further pleased tb

.anuthenticate such examination by the seal of your tribunal, or in such other way as is in

accordance with your procedure, and to return the same, together with such request in writing, if

any, for the examination of other.witnesses to the said Court.

(Note.-If the request is directed to a Foreign Court, the words "through 1[the 2[Federal

Government] for transmission" ,should be inserted after the words "other witnesses" in the last line

of this form.)

______________________

No.9

COMMISSION FOR A LOCAL INVESTIGATION, OR TO EXAMINE ACCOUNTS

(O. 26, rr. 9, 11)

(Title)

To

WHEREAS it is deemed requisite, for the purposes of this suit, that a commission for

should be issued; You are hereby appointed Commissioner for the purpose of

Process to compel the attendance before you of any witnesses, or for the production of any

documents whom or which you may desire to examine or inspect, will be issued by any Court

having jurisdiction on your application.

A sum of Rs. , being your fee in the above, is herewith forwarded.

GIVEN under my hand and the seal the Court, this day of 19' .

Judge

_______________

No. 10

COMMISSION TO MAKE A PARTITION. (O. 26, r. 13)

(Title)

To

WHEREAS it is deemed requisite for the purposes of this suit that a commission shouId be

issued to make the partition or separation of the property spceified in and according to the rights

as declared in the decree of this Court dated the day of 19 ; you are here by appointed

Commissioner for the said purpose and are directed to make such inquiry as may be necessary, to

divide the,said property according to the best of your skill and judgment in the shares set out in

the said decree, and to a lot such shares to the several parties. You are hereby authorised to award

sums to be paid to any party by any other party for the purpose of equalizing the value of'the shares.

1 Subs. by A.O., 1949, for “His Majesty’s Secretary of State for Foreign Affairs”. 2 Subs. by F.A.O., 1975, Art. 2 and Table, foro “Central Government”.

618

process to compel the attendance before you of any witness, or for the production of any

documents, whom or which you may desire to examine or inspect, will be issued by any Court

having jurisdiction on your application.

A sum of Rs. , being your fee in the above, I herewith forwarded.

GIVEN under my hand and the, seal of thc Court, this day of 19 .

Judge

_________________

No. 11

NOTICE TO MINOR DEFENDANT AND GUARDIAN. (O. 32, r. 3)

(Title)

To

Minor Defendant.

Natural Guardian.

WHEREAS an application has been presented on the part of the plaintiff in the above suit for

the appointment of a guardian for the suit to the minor defendirit, you, the said minor, and you (1)

, are hereby

required to take notice that unless within days from the

service upon you of this notice, an application is made to this Court for the appointment of you (1)

or of some friend of you,

the minor, to act as guardian for' the suit, the Court will proceed to appoint some other person to

act as a guardian to the minor for the purposes of the

said suit.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

No. 12

NOTICE TO OPPOSITE PARTY OF DAY FIXED FOR HEARING EVIDENCE OF

PAUPERISM. (O. 33, r. 6)

(Title)

To

WHEREAS has applied to this Court for permission to institute a suit against in

forma pauperis under Order XXXIII of the Code of Civil Procedure, 1908; and whereas the Court

sees no reason to reject the application; and whereas heday of 19 has been fixed for

receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any

evidence which may be adduced in disproof thereof:

Notice is hereby given to you under rule 6 of Order XXXIII that in case you may wish to

offer any evidence to disprove the pauperism of the applicant," you may do so on appearing in

this Court on the said day of 19

GIVEN under my hand and the seal of the Court, this dya of 19.

Judge

(1) Here

inset the

name of the

guardian

619

No. 13

NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE

(Section145)

(Title)

To

WHEREAS you did on become liable as surety for the performance of any

decree which might be passed against the saiddefendant in the above suit; and whereas a decree

was passed on the day of 19 against the said defendant for the

payment of , and

Whereas application has been made for execution of the said decree against you:

Take notice that you are hereby required on or before the day of 19 to show

cause why the said decree, should not be executed against you, and if no sufficient cause shall

be, within . the time specified, shown to the satisfaction of the Court, an order for its execution

will be forthwith issued in the terms of the said application.

GIVEN under my hand and the seal of the Court, this day of 19 .

Judge

_________________

620

No. 14

REGISTER OF CIVIL SUITS (O. 4, r. 2)

Court of the of at

Register of Civil Suits in the Year 19.

plaintiff

defendant

Claim

Appearance

Judgment

Appeal

Execution

Return of

Execution

Dat

e o

f P

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Nu

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it

Nam

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e

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n

Pla

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Par

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ou

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or

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Wh

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ed

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hat

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hat

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on

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621

No.15

REGISTER OF APPEALS (O.41, r. 9)

COURT (OR HIGH COURT) AT

REGISTER OF APPEALS FROM DECREE IN THE YEAR 19.

Appellant Respondent Decree appealed

from

Appearance Judgment

Dat

e of

mem

ora

ndum

Num

ber

of

app

eal

Nam

e

Des

crip

tio

n

Pla

ce o

f re

siden

ce

Nam

e

Des

crip

tio

n

Pla

ce o

f re

siden

ce

Of

what

Court

Num

ber

of

ori

gin

al S

uit

Par

ticu

lars

Am

ount

or

val

ue

Day

for

par

ties

to a

ppea

r

Appel

lant

Res

ponden

t

Dat

e

Confi

rmed

, re

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arie

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For

what

or

amount

622

THE SECOND SCHEDULE.-{Arbitration1 Rep. by the Arbitration Act, 1940 (X of 1940), s. 49

and Third Schedule

_______________

THE THIRD SCHEDULE

(See section 69)

EXECUTION OF DECREES BY COLLECTORS

1. Powers to Collector: Where the execution of a decree has been transferred to the

Collector under section 68, he may:

(a) Proceed as the Court would proceed when the sale of immoveable property is postponed

in order to enable the judgment-debtor to raise the amount of the ,decree ; or

(b) raise the amount of the decree by letting in perpetuity, or for a term on payment of a

premium, or by mortgaging, the whole or any part of the property ordered to be sold; or

(c.) sell the property ordered to be sold or so much thereof a6 may be necessary.

2. Procedure of Collector in special cases: Where the execution of a decree, not being a

decree ordering the sale of immoveable property in pursuance of a contract specifically affecting

the same, but being a decree for the payment of money in satisfaction of which the Court has

ordered the sale of immoveable property, has been so transferred, the Collector, if, after such

inquiry as he thinks necessary, he has reason to believe that all the liabilities of the judgment-

debtor can be discharged without a sale of the whole of his available immoveable property, may

proceed as hereinafter provided.

3.Notice to be given to decree holders and to persons having claims on property: (1)

In any such case as is referred to in paragraph 2, the, Collector shall publish a notice, allowing a

period of sixty days from the date of its publication for compliance and calling upon:-

(a) every person holding a decree for the payment of money against the judgment-debtor

capable of execution by sale of his immoveable property and which such decree holder desires to

have so executed, and every holder of a decree for the payment of money in execution of which

proceedings for the sale of such property are pending, to produce before the Collector a copy of

the decree, and a certificate from the Court which passed or is executing the same, declaring the

amount recoverable there-under;

(b) every person having any claim on the said property to submit to the Collector a

statement of such claim, and to produce the documents (if any) by which it is evidenced.

(2) Such notice shall be published by being affixed on a conspicuous part of the Court-

house of the Court which made the original order for sale, and in such other places (if any) as the

Collector thinks fit; and where the address of any such decree-holder or claimant is known, a copy

623

of the notice shall be sent to him by post or otherwise.

4. Amount of decree for payment of money to be ascertained and immovable property

available for their satisfaction:- (1) Upon the expiration of the said period, the Collector shall

appoint a day for hearing any representations which the judgment-debtor and the decree-holders

or claimants (if any) may desire to make, and for holding such inquiry as he may deem necessary

for informing himself as to the nature and extent of such decrees and claims and of the judgment-

debtor's immoveable property, and may, from time to time, adjourn such hearing and inquiry.

(2) Where there is no dispute as to the fact or extent of the liability of the judgment-debtor

to any of the decrees or claims of which the Collector is informed, or as to the relative priorities

of such decrees or claims, or as to the liability of any such property for the satisfaction of such

decrees or claims, the Collector shall draw up a statement, specifying the amount to be recovered

for the discharge of such decrees, the order in which such decrees and claims are to be satisfied,

and the immoveable property available for that purpose.

(3) Where any such dispute arises, the Collector shall refer the same, with a statement

thereof and his own opinion thereon, to the Court which made the original order for sale, and shall

pending the reference, stay proceedings relating to the subject thereof. The Court shall dispose of

the dispute if the matter thereof is within its jurisdiction, or transmit the case to a competent Court

for disposal, and the final decision shall be communicated to the Collector, who shall then draw

up a statement as above provided in accordance "with such decision.

5. When District Court may issue notices and hold inquiry: The Collector may, instead

of himself issuing the notices' and holding the inquiry required by paragraphs 3 and 4, draw up : a

statement specifying the circumstances of the judgment-debtor and of his immoveable property sp

far as they are known to the Collector or appear in the records of his office, and forward such

statement to the District Court; and such Court shall thereupon issue the notices, hold the inquiry

and draw up the statement required by paragraphs 3 and 4 and transmit such statement to the

Collector.

6. Effect of decision of Court as to dispute:- The decision by the Court of any dispute

arising under paragraph 4 or paragraph 5 shall, as between the parties thereto, : have the force of

and be appealable as a decree.

7. Scheme for liquidation of decree for payment of money: - (1) Where the amount to

be recovered and the property: available have been determined as provided in paragraph 4 or '

paragraph 5, the Collector may,

(a) if it appears that the amount cannot be recovered without the sale of the whole of the

property available, proceed to sell such property; or

(b) If it appears that the amount with interest (if any) in accordance with the decree, and,

when not decreed, with interest (if any) at such rate as he thinks reasonable, may he recovered

without such sale, raise such amount and interest (notwithstanding the original order for sale)

(i) By letting in perpetuity or for a term, on payment of a premium, the whole or

624

any part of the said property; or

(ii) By mortgaging the whole or any part of such property; or

(iii) By selling part of such property; or

(iv) by letting on farm, or managing by himself or another, the whole or any part of

such property for any term not exceeding twenty years from the date of the order

of sale; or

(v) Partly by one of such modes, and partly by another or others of such modes.

(2) For the purpose Of managing the whole or any part of such property, the Collector may

exercise all the powers of its owner.

(3) For the purpose of improving the saleable value of the property available or any part

thereof, or rendering it more suitable for letting or managing, or for preserving the property from

sale in satisfaction of an in-cumbrance, the Collector may discharge the claim of any in-cumbrance

which has become payable or compound the claim of any in-cumbrancer whether it has become

payable or not, and, for the purpose of providing funds to effect such discharge or composition,

may mortgage, let or sell any portion of the property which he deems sufficient. If any dispute

arises as to the amount due on any in-cumbrance with which the Collector proposes to deal under

this clause, he may institute a suit in the proper Court, either in his own name or the name of the

judgment-debtor, to have an account taken, or he may agree to refer such dispute to the decision

of two arbitrators, one to be chosen by each party, or of an umpire to be named by such arbitrators.

(4) In proceeding under this paragraph the Collector shall be subject to such rules consistent

with this Act as may, from time to time, be made in this behalf by the 1[Provincial Government.]

8. Recovery of balance (if any) after letting or management: Where, on the expiration

of the letting or management under paragraph 7, the amount to be recovered has not been realized,

the Collector shall notify the fact in writing to the judgment-debtor Or his representative in interest,

stating at the same time that, if the balance necessary to make up the said amount is not paid' to

the Collector within six weeks from the, date of such notice, he will proceed to sell the whole or a

sufficient part of the said property; and, if on the expiration of the, said six weeks the said balance

is not so paid, the Collector shall sell such property; or part accordingly. ' '

9. Collector to render accounts to Court: - (1) The Collector shall, from time’ to time,

render to the Court which made the original order for sale an account of all monies which c9me to

his hands and of all charges incurred by him in the exercise and performance of the powers and

duties conferred and, imposed on hint under the provisions of this schedule, and shall hold the

balance at the disposal of the Court.

(2) Such charges shall include all debts and liabilities from time to time due to 2[the

Government] in, respect of the property or any part thereof, the rent (if any) from, time to time due

to a superior holder in respect of such property or part, and, if the Collector so directs, the expenses

of my witnesses summoned by him.

1 Subs. by A.O., 1937, for “L.G.”. 2 The original words “the Government” were first subs. by A.O., 1937, and then amended by A.O., 1961, Art. 2 (with effect from the 23rd March,

1956), to read as above.

625

(3) The balance shall be applied by the Court

(a) In providing for the maintenance of such members of the judgment-debtor's family (if

any) as are entitled to be maintained out of the income of the property, to such amount in the case

of each member as 'the Court thinks fit ; and

(b) Where the Collector has proceeded under paragraph 1, in satisfaction of the original

decree in execution of which the Court ordered the sale of immoveable proper_¥, or otherwise as

the Court may under section 73 direct;. Or

(c) Where the Collector has proceeded under paragraph 2,

(i) In 'keeping down the interest on in-cumbrances on the property;

(ii) Where the judgment-debtor has no other sufficient means of subsistence, in

providing for his subsistence to such amount as the Court thinks fit ; and

(iii) In discharging rateably the claims of the original decree-holder and another

decree-holder who have complied with the said notice, and whose claims were

included in the amount ordered to be recovered.

(4). No other holder of a decree for the payment of money shall be paid out of such 'property

or 'balance 'until the decree- holders who have obtained such order have been satisfied, and be

residue (if any) shall be paid to the 'judgment-debtor or such other person as the Court directs.

10. Sales how to be conducted: Where the Collector sells any property under this sche-

dule, he shall put it up to public auction will, one or more lots, as he thinks fit, and may

(a) Fix a reasonable reserved price for each lot;

(b) Adjourn the sale for a reasonable time whenever, for reasons to be recorded, he

deems the adjournment necessary for the purpose of obtaining a fair price for the

property;

(c) Buy in the property offered for sale, and re-sell the same by public auction or

private contract, as he thinks fit.

11. Restrictions as to alienation by judgment debtor or his representative, and

Prosecution of remedies by decree-holder : - (1) So long as the Collector can exercise or perform

in respect of the judgment-debtor's immoveable property, or any part thereof, any of the powers or

duties conferred or imposed on him by paragraphs 1 to 10, the judgment-debtor or his representa-

tive in interest shall be incompetent to mortgage, charge, lease or alienate such property or part

except with the written permission of the Collector, nor shall any Civil Court issue any process

against such property or part in execution of a decree for the payment of money.

(2) During the same period no Civil Court shall issue any process of execution either

against the judgment-debtor or his property in respect of any decree for the satisfaction whereof

provision has been made by the Collector under paragraph 7.

(3) The same period shall be excluded in calculating the period of limitation applicable to

the execution of any decree affected by the provisions of this paragraph in respect of any remedy

of which the decree-holder has been temporarily deprived.

626

12. Provisions where property is in several district: Where the property of which the

sale has been ordered is situate in more districts than one, the powers and duties conferred and

imposed on the Collector by paragraphs 1 to 10 shall be exercised and performed by such one of

the Collectors of the said districts as the l[Provincial Government] may by general rule or special

order direct.

13. Powers of Collector to compel attendance and production: In exercising the powers

conferred him by paragraphs 1 to 10 the Collector shall have the powers of a Civil Court to compel

the attendance of parties and witnesses and the production of documents.

The Fourth Schedule: - [Enactments amended.] Omitted by the Federal Laws (Revision

and Declaration) Ordinance, 1981 (XXVII of 1981), s. 3 and Second Schedule.

THE FIFTH SCHEDULE: - [Enactments repealed.] Rep. by the Second Repealing and

Amending Act, 1914 (XVII of 1914), s. 3 and Second Schedule.

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