PROJECT: CODE OF CRIMINAL PROCEDURE,1898

Project topic:

CASE LAWS RELATED TO

ARREST AND WARRANT

Submitted to: Dr nadia khaddam

Submitted by: kianat latif

maham nisar

Mahnoor paracha

Department law

Course title: code of criminal procedure i

Date 28- november-2019

1
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

 WHAT IS ARREST UNDER CODE OF CRIMINAL PROCEDURE,

1898?

It is the word derived from the French word 'Arrester' which means “to stop or stay”. It can

also be said as physical restraining of a person by another person authorize by law or Court of

law.

As liberty is a fundamental right of human being so it shall not be curtailed without any

following any due process established by law. (htt37)

Arrest, Escape and Retaking

Section-46 to Section-53A of CrPC 1898 deals with arrest, escape and retaking.

 WHAT IS RIGHT TO A SELF DEFENCE?

. The Principal of Criminal Law provides that the accused is to be considered innocent until

proven guilty, but as an exception, if the accused pleaded his innocence on the ground of plea of

alibi or plea of self defense, then the onus to prove his innocence lies upon the accused.

(Saleem, 2013)

2
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

CASE LAW

 CASE CITATION:

PLD Supreme Court 432

 PARTIES NAME

The STATE …………………….……………………………………………….Appellant

Versus

Muhammad Akbar………………………………………………………………Respondent

 REFERENCE CASE LAW:

1) Muhammad Ishaq v. Crown (PLD 1954 Lahore.)

 RELEVENT LAWS:

1) Article 58(3) of Constitution of Pakistan 1962

2) Code of Criminal Procedure, 1898 sections 46, 54, and 59

3) Penal code section 96,100,302.

 BRIEF FACTS OF THE CASE:

Incident took place on night of 24 September 1961 in Suburb of Lyallpur town. On hearing the

alarm of thief many of residents saw them among whom Latif Shah who was on duty saw two

persons approaching them, who were followed by others who wanted to stop them. Among

whom there was a respondent. Muhammad Akbar fired 3 shots with a revolver and as a result

3
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

Qudratullah was injured who was also on duty with Latif Shah. Workers use sticks to stop them

and Latif Shah stopped Muhammad Akbar and hit revolver out of his hand and he was caught

but his partner escape. Other person was named Malla (this man was also acquitted by the High

Court, but this Court refused to grant special leave to appeal against his acquittal). Prosecution

claimed that these two persons entered into Mehr Din house at night and he shouted thief.

But Muhammad Akbar stance was that he was returning to the house from cinema. It was Latif

Shah who fired on him and as a result Qudratullah was also injured. Trial court convicted

Muhammad Akbar under section 302 as well as under section 307 of Pakistan Penal Code. The

co- accused was convicted only under section 323 of Pakistan Penal Code. In separate trial

Muhammad Akbar was also convicted only under section 458 of Pakistan Penal Code for

breaking and entering in to the house of Mehr Din, and under section 19 of the Arms Act for

possession of an unlicensed revolver.

On appeal in the High Court Learned Single Judge acquitted him of the offence under section

458 of Pakistan Penal code bur maintained a conviction under section 9 of Arms Act, his appeal

under section 302 of Pakistan Penal Code was heard by a Division Bench of the High Court.

Prosecution presented four witnesses who deposed that they had seen Muhammad Akbar and his

companion running away but could not provide sufficient justification for pursuing them. These

all witnesses belong to the same category being neighbor of Mehr Din. From evidence of Latif

Shah and others the Learned Judges found that these persons were not justified in their attempt to

capture two men.

4
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

The Learned Judge from respondent side says that injuries of Muhammad Akbar were proof of

very heavy belaboring and a person is having full right to protect his life and therefore

Muhammad Akbar is entitle to use a lethal weapon like a revolver to save his life.

 ISSUE:

1) Whether a person is having right of private defense to use all means to secure his life?

2) Whether section 54 and 46 can be deal together?

3) Whether section 59 is here applicable or not?

 JUDGEMENT:

In this case the petition no 264 of 1964 which is filed by Muhammad Akbar for seeking special

leave to appeal against his conviction for possessing unlicensed revolver court is satisfied with

findings of the fact by the Learned Judge in the High Court is based on good evidence and the

right of self defense by use of firearm in circumstances in which he was placed and no reason

appear for interference with that decision within the special jurisdiction of this Court. So

accordingly Criminal Appeal No. 40 of 1964 by the State is also dismissed.

 PRINCIPLE OF LAW:

From the above stated facts it is very difficult to build up any justification for the use of force

against two persons who were being pursued. Section 59 of Code of Criminal Procedure, 1898

defines a right of a private person to make an arrest. This all must be read in contrast with section

54 of Code of Criminal Procedure, 1898 which provides that Police Officer may without warrant

arrest any person against whom reasonable suspicion exist concerned with cognizable offence.

But the principal distinction lies in this that by virtue of his office, a Police Officer may act on

5
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

reasonable suspicion, but a private person must act on a basis of something which has happened

“in his view”.

 CONCLUSION:

It is finally concluded from the above cited case is that as appeal by the State was dismissed for

having not properly justified witnesses and person is having right to use any means for self

defense.

Section-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.

 Explanation:

It is argued that allegations the petitioner use abuse language in respect of Mohammad (Peace Be

upon Him) and other family members are false on face of it. It is added that F.I.R was with

unexplained detail of more than 42 hours. It is added that there is an enmity between the

respondent and the petitioner family as is clear from F.I.R No. 4, dated 14.2.1995. All these

points are decided by Trial Court after recording evidence. It is not possible to grant bail on these

grounds. Judge after registration of case proceeded to investigate case and found petitioner

involved, therefore issued challan against him. This prima facie proof of his guilt at this stage is

sufficient to refuse bail. The application is dismissed. However, case is withdrawn Addl.

6
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

Sessions Judge in suo motu and is entrusted to Court of Sessions Judge, who is directed to

conclude trial expeditiously within three months. Bail dismissed. 1999 P.Cr.R.822

Section 50

 No unnecessary restraint.

The person arrested shall not be subjected to more restraint than is necessary to prevent his

escape.

Section 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.

7
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

Section-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.

 Guideline for magistrate in granting permission to search

Where it is necessary to cause a woman to be searched, no person other than a woman is

authorized to make search and that too with strict regard to decency. Before obtaining

search warrant the Magistrate is under a duty to apply his mind to allow permission or

to refuse it. He should at least examine the police officer making the request and if

possible put him question to satisfy his mind. There should be some inquiry made by the

Magistrate before permission. Law has conferred the powers on Magistrate and these

powers only to be exercised carefully.

Section-53

 Power to seize offensive weapons.

The officer or other person making any arrest under this Code may take from the person

arrested any offensive weapons which he has about his person, and shall deliver

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.

Section-53A and Section-54

Examination of a person accused of rape, etc. by medical practitioner and section 54 here

police can arrest without warrant. (Basit, september, 2018)

8
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

CASE LAW
PLD 2013 Peshawar 46

Before Yahya Afridi, J

YASIR KHAN …………………….………………………………………………. Petitioner

Versus
IMTIAZ and two others …………………………………………………………Respondent

 REFERENCE CASE LAW:

Muhammad Ramzan’s Case (PLD 2010 SC 585)

Mehr Khan’s Case (1984 SCMR 267)

Muhammad Umar’s Case (PLD 2012 S.C. 179)

 RELEVANT LAWS:

Section -4(1), 54, 60, 61, 154, 156, 157, 167, 169, 172, 173(3)

 Investigation of case

 Arrest of accused

9
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

FACTS:

 This instant petition was filed by the injured person who was Yasir Khan Son of Aziz-

ur-Rehman, resident of District Abbottbad under section 561-A Criminal Procedure

Code, 1898, lodged a report to Iltaf IHC, Police Post, DHQ, Hospital, Abbottbad that he

was on his way to Abbottabad, when he was about to reached near Jabri Road, Akbar

son of Said Ali and Imtiaz son of Ajab were standing there; that Akbar Khan asked

Imtiaz to kill Yasir, upon which Imtiaz fired at the petitioner with his 30 bore pistol,

which hit him on his left leg and he was injured.

 That the case was registered against the accused-respondents vide F.I.R. No.219 under

sections 324/34 of Pakistan Penal Code, 1860 in Police Station.

 Station House Officer submitted the report to Judicial Magistrate-I, wherein, he

discoursed that accused-respondents were found innocent during the investigation,

mainly on the grounds of alibi of the accused respondents being with a member of the

Parliament at Islamabad and that the injury caused was self-inflicted; therefore, the case

was sought to be cancelled.

 Further than the accused respondents were neither arrested nor were any bonds taken
from them for their release and appearance, within the contemplation of section 169 of
CrPC.

10
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

ISSUE:

 Whether the decision of the police officer releasing an accused under section-169
of CrPC is judiciable before the high court?
 Whether the sessions were competent to judicially interfere in the decision of the
police officer to release a accused under section-169 CrPC?
 Wither this court can direct the sessions to seek the bail of the released accused?

 JUDGEMENT:

The finding of guilt or innocence by the police at the investigation stage is not a finding in the

trial culminating in conviction or acquittal and therefore the principle of double jeopardy can’t be

invoked by petitioners. Even if when an accused is discharged by the Magistrate court, the

consequences would be that he is discharged from his bond at a stage when his custody is no

longer required by the investigating agency. But such an order is only an executive order passed

at the investigating stage when the case has yet to go for trial. The court can still try him if some

fresh material is brought before it. Petitioners were not even discharged by the trial. The order of

discharge based on police report cannot be equated with acquittal. The court is not bound by

such a finding of innocence reflected in the final report submitted under section 173 of CPC and

it can still summon the accused.

This Court, at this stage, does not find any challenged action of the Sessions/trial Court to be

abuse the process of the Court, which would warrant the invocation of inherent powers of this

Court to secure the ends of justice, as provided under section 561-A of CrPC. Accordingly, for

the reasons stated hereinabove, this petition is disposed of in the above terms.

Petition dismissed

11
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

 PRINCIPLE OF LAW:

In order to investigate a criminal case, the S.H.O. of a Police Station under section 54 of the

CrPC, may arrest a person without warrants, inter alia, 'when a reasonable complaint has been

made or credible information has been received or a reasonable suspicion exists of his having

been so concerned' On arresting the accused, the police officer has to produce him before a

Magistrate having jurisdiction in the case, within twenty-four hours of his arrest.

In case, the arrest is being made by an officer, who is not the officer-in charge of the Police

Station, within whose jurisdiction the said offence had taken place, then the accused has to be

produced before the concerned S.H.O. of the Police Station. But under no circumstances, a

person arrested without warrant can be kept beyond the period of twenty-four hours, without

him being produced before the Magistrate having jurisdiction in the matter, as is provided under

sections 60 and 61 of the CrPC.

In cases, where the investigation cannot be concluded within twenty-four hours of the arrest of

an accused, the officer investigating the case has to seek permission of a Magistrate for the

police remand of the accused for a specified period. This period in ordinary criminal cases

cannot be beyond a term exceeding fifteen days, as a whole. Surely, while granting physical

remand/custody of the accused to the police, the Magistrate has to give reasons for the same. The

procedure in this regard has been clearly provided in section 167 of CrPC

In case, the investigating officer concludes that a criminal case is made out and the person

accused is involved in the commission of an offence, he is to submit 'challan' before the

Magistrate having jurisdiction to try the offence or to send the same for trial to the Sessions.

There is no issue regarding the said situation.

12
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

Whereas, on the other hand, if the police officer concludes otherwise, he is to proceed as is

provided under section 169 of CrPC, which states as follows:

if it appears to the officer in charge of the police station, or to the police officer, who investigates

the case that there is insufficient evidence or reasonable ground or 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, or the said officer may direct, to appear, if

and when so required, before a Magistrate empowered to take cognizance of the offence on a

police report and to try the accused or send him for trial.

The purport of the aforementioned section is essentially to render the police officer, the authority

to release an accused, if he considers that no case is made out against him, on his furnishing a

bond, with or without sureties, with direction to the released accused to appear as and when he is

summoned to appear before the competent Magistrate. Once he is summoned and appears before

the competent magistrate, the 'life' of the personal bond executed by the accused would 'end' and

the same shall be subject to the further orders of the said magistrate, as is provided under

subsection (3) of section 173 of CrPC, which reads that:-- "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." (htt2)

13
 PROJECT: CODE OF CRIMINAL PROCEDURE,1898

References:

 https://www.peshawarhighcourt.gov.pk/PHCCMS/judgments/46-PLD-2013-

Pesh-46.pdf

 (Basit, september, 2018)

14