Practice and procedure
MIAN ASHRAF ASMI
ADVOCATE
HIGH COURT
Pakistan penal Code .1860 and criminal procedure
Code ,1908 are statue which complements and supplements each other in most
respects and are generally perceived as counts parts in systems of criminal
justice in Pakistan .{PLD 2002 Lah 482}All courts and tribunals are to act
within four comers of law .{2003 MLD 57}Court is obliged to decide and dispose
of matter in accordance with law irrespective of the standings and status of
parties before it .{ 2003 MLD 169} Where a statute creates a right and also
provides a machinery for enforcement of such right ,the right complaining of a
breach of statute must first avail himself of the remedy provided by statue for
such breach before he applies for any other remedy .{2003 YLR 42} Courts are
free to reach a just decision by evolving or adopting its own procedure ,if
there is no other express provision in the field in relation to a matter or
proceedings .Absence of any provisions on a particular matter does not mean
that the Court has no power in regard thereto .Court may act on the principle
that every procedure should be understood as permissible till it is shown to be prohibited by law .This is
the only exception to the general rule ,but it is also subject to the golden
rule of fair trial .{2005 YLR 2032} Where a power is conferred to do an act in a particular manner or way
,such power is to be exercised in that manner or way alone and it necessarily
excludes the doing of the act in any other manner than that which has been
prescribed . {2005 YLR 2032} Wrong exercise of power or an act without lawful
authority which is not result of any bad motivation is not an act actionable in
criminal or administrative law .{2008
SCMR 1118}. When law prescribes a particular manner and procedure in
which things are required to be done .the same must be done in that way or not
at all . {2000P.CR.L.J 1924} Each criminal case has its own features and is
required to be decide on its own merits independently,{2008 SCMR 807} it is
primary duty of the Court to ascertain whether alleged offence is outcome of an act which is in
violation of some law which can be termed as actus rea of the crime (guilty
act) and if this essential element of crime is missing the breach may not be subject
to sanction of criminal law .{2008 SCMR
1118}.
Contradicition .contradiction means
negation of prosecution version –Mere discrepancies in this detail not contradiction
.Disposal of criminal cases . Criminal case must be dispose of without
unnecessary delay .in ordinate delay in Imparting justice is likely to cause erosion of public
confidence in the system on one hand and on the other hand it is bound to
create a sense of helplessness disappear ,feeling of frustration and anguish apart
from adding to the woes and choice of the judge to accept the case for
imparting justice between the parties or
to rescue himself from adjudicating the dispute while a litigant has to been granted
a right to ask the judge to rescue himself judge in a given case has the option to entertain
it or to decline its admission with himself to administer justice between the
parties of that case .if a litigant does
not feel justice to be done from of judge . he must not place his case before
the judge .when the case is placed before a judge by a litigant ,thereafter the
litigant cannot ask the judge to rescue himself ,presentation of a case for decision before a
judge presupposes that he believes the judge able . in all respects to deliver
justice and it would be contemptuous act of a litigant to present his case for adjudication and then ask the
judge to decline to decide the same .when a case is preferred before a judge in
that event the right to ask the judge to rescue himself is lost by the
litigant because he had already his
authority ,valid appointment ,competency to administer justice ,and with
the belief of his independence ,he is
presupposed to have believed the judge to be a judge ,a person of integrity
.(PLD 2009 S.C.284) Forum. Criminal case
should be tried and decided by the Court having preliminary jurisdiction until
and unless extraordinary circumstance exist justifying the trial by special
Court .{2008 SCMR 1631} .Notification. Notification curtaining or extending
rights of citizen will take effect from the data of its publication in gazette
and not from any prior data .{2008 SCMR
1717} Notification or Government policy cannot take effect retrospectively
.{2008 SCMR 773} lest for taking away vested rights accrued .{PLD 2013 Sindh
264} Condition essential for a valid
notification are its issuance by an authority having power under law and its
publication in official gazette .{ PLD 2013 Sindh 236} All notification would
apply prospectively and not retrospectively expect beneficial notification
conferring certain rights could be
interpreted to apply retrospectively .{2013 MLD 1835} .
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Writer Mian Ashraf Asmi Advocate High Court
is the author of Book Rule of Law.
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