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LAW & JUSTICE COMMISION OF PAKISTAN

REPORTS NO. 90 - 102

2007-2008

Government of Pakistan Law & Justice Commission

Supreme Court Building Constitution Avenue

Islamabad

Phone: 0092-51-9214797 Fax : 0092-51-9214416 E-mail: ljcp@ljcp.gov.pk

Website: www.ljcp.gov.pk

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CONTENTS 1. Introduction………………………………………………………………

2. Amendment in the Majority Act, 1875 (Report No.90)……………….

3. Amendment in the Guardians and Wards Act, 1890 (Report No.91)…………………………………………………………..

4. Amendment in Section 250 of the Code of Criminal Procedure, 1898. (Report No.92)………………………………………………...

5. Amendment in Section 102 of the Code of Civil Procedure 1908 (Report No.93)…..…………….........................................................

6. Omission of Sub-rule (1) of Rule 4, Order XX of the Code of Civil Procedure, 1908 (Report No.94) ……………………………

7. Amendment in Sections 400, 401 & 402 of the Pakistan Penal Code, 1860 (Report No.95)…………..…….…………………………

8. Amendment in Section 2 of the Succession Act, 1925 (Report No. 96) ………………………………………………………….

9. Amendment in Column 7 of Schedule II of the Code of Criminal Procedure, 1898. (Report No.97)…………………………………

10. Amendment Section 95 of Code of Civil Procedure 1908 (Report No.98)………………………………………………………….

11. Amendment in Section 35A of Code of Civil Procedure 1908 (Report No.99)………………………………………………………….

12. Amendment in Section 516A of the Code of Criminal Procedure, 1898 (Report No. 100)…………………………………………………

13. Amendment in the Child Marriage Restraint Act, 1929 (Report No. 101)………………………………………………………….

14. Amendment in the Code of Criminal Procedure, 1898 for Substitution/Deletion of Obsolete Provisions (Report No. 102)………………………………………………………….

15. Annexure …………………….…………………………………..……...

(i) List of Reports………………... Annex-I…………………………...……

(ii) Public Awareness Scheme…...Annex-II……………………..………

(iii) Pending Projects ……….……..Annex-III………………………………

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Introduction

The Commission The Law and Justice Commission of Pakistan is a Federal Government institution, established under an Ordinance (XIV) of 1979. The Commission is headed by the Chief Justice of Pakistan and comprises 12 other members including the Chief Election Commissioner, Chief Justice, Federal Shariat Court, 4 Chief Justices of High Courts, Attorney General for Pakistan, Secretary, Ministry of Law & Justice, Chairperson, National Commission on the Status of Women, among others. Each Province is represented by one member.

National Judicial (Policy Making) Committee. The Government constituted the National Judicial (Policy Making) Committee under an Ordinance (LXXI) of 2002. The Chief Justice of Pakistan is the Chairman of the Committee and the Chief Justice, Federal Shariat Court and Chief Justices of 4 provincial High Courts are its members. The Secretary, Law & Justice Commission of Pakistan is designated as Secretary to the Committee. The Committee is mandated to formulate and implement judicial policy and prepare schemes for improving the capacity and performance of the administration of justice.

Secretariat The Commission has its own Secretariat, headed by a Secretary and comprising other research officers and ministerial staff. The sanctioned strength comprises 3 Joint Secretaries, 4 Deputy Secretaries, 5 Research Officers, 2 Section Officers, MIS Manager, System Analyst, Computer Programmer / Operator and other technical / ministerial staff.

Library & Computerization The Commission has its own library with a collection of 5000-plus reference books and law reports. The staff also has access to the libraries of the Supreme Court, Parliament, Ministry of Law & Justice and National Library. A Legal Discovery Centre has been established to enhance research facilities for scholars and officials of the justice sector. A computer network has been installed in the Secretariat, officers and heads of sections have been provided computers. Access to Internet is available and the Commission operates its website www.ljcp.gov.pk. The website displays all essential information about the Commission including its composition, functions, reports already approved/published and pending projects.

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Functions The functions of the Commission are listed in Section 6 of the Ordinance. Such functions include:

1. carrying out a regular and systematic review of the statutes and other laws of the land, with a view to improving/modernizing the same and bring it in accord with the changing needs of the society;

2. arranging the codification and unification of laws, so as to eliminate multiplicity of laws on the same subject;

3. removing inconsistencies between Federal and Provincial Laws; 4. simplifying laws for easy comprehension and suggesting measures to make

the society law-conscious; 5. introducing reforms in the administration of justice; 6. adopting simple and effective procedure for the administration of laws to

ensure substantial, inexpensive and speedy justice; 7. recommending improvements in the quality/standard of legal education. 8. taking measures for developing human resources for efficient court

administration and management of case flow; 9. co-ordination between the judiciary and executive authorities of the Federal

Government and provincial governments on administrative, financial and other related matters;

10. preparing and operating schemes for access to justice, legal aid and protection of human rights; and

11. managing the Access to Justice Development Fund. 12. the Federal Government or any provincial government may seek the opinion

and advice of the Commission on any matter relevant to its functions.

Performance The Law & Justice Commission of Pakistan is a pioneering law/justice sector institution working for reform of laws. The research work of the Commission encompasses modernizing, codifying and simplifying a wide range of laws/statutes through their systematic and regular review. In this context, the Commission produces a set of research reports on annual basis, which provide basis for recommending necessary amendments, improvements and changes in specific laws and statues. So far the Commission has approved and published 102 reports on different issues/subjects and submitted the same to the Government for implementation. The Commission firmly believes that these reports will be greatly instrumental in reforming the system of administration of justice in the country. During the year 2007, the Commission approved 13 reports, which are being published in the present volume. A detailed list of the published reports is at Annex-I. The Secretariat also operates a Legal Awareness Scheme whereunder write-ups are

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prepared on legal issues/problems of public interest and published through the news media. Write-ups have already been published in four volumes titled “Qanun-Fahmi”. List of such published material is at Annex II. The published reports and write-ups are available for sale in the Head Office of National Book Foundation, Islamabad as well as its regional/branch offices in the 4 provinces. The reports/write-ups are also available on our website. Similarly, several other projects of legal/judicial reform are currently under consideration of the Commission. They are at various stages of completion. A list of such pending projects is at Annex III. I am pleased to acknowledge the hard work of the Commission’s staff whose efforts for producing quality research work deserve appreciation. We hope that readers interested in analysis and study of the law and justice sector will find these reports useful for reference. The Commission welcomes interaction with the general public, especially jurists, researchers, scholars and activists to get feed back on its drafts and receive proposals for reform of law, legal education and judicial system.

( Dr. Faqir Hussain )

Secretary Islamabad, 1st July, 2008.

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Amendment in the Majority Act, 1875

Report No. 90

( - )

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Amendment in the Majority Act, 1875

The Majority Act, 1875 was enacted with a view to attain uniformity and certainty respecting the age of majority. Prior to enactment of the Act, the age of majority of the persons domiciled in British India was not uniform. For Hindus the age of majority was the end of sixteenth year, in Bengal the age was the end of fifteenth year or the attainment of puberty and for European British subjects domiciled in India, it was twenty one years.

The Act was aimed at fixing a uniform period of majority. The statement of objects and reasons reads as under:

"The mass of persons domiciled in this country may roughly be divided into (1) Hindus (2) Muhammandans, (3) European British subjects, and (4) persons to whom the Indian Succession Act applies.

In the present state of law, the ages at which persons belonging to these classes attain their majority respectively may be stated as follows:

By the Hindus sastras, except those prevailing in Bengal, the end of the sixteenth year is the limit of minority. In Bengal the end of the fifteenth year is deemed to be the limit of minority, according to the Hindu law as understood there.

By Bengal Regulation Act [XXVI of 1793] and Madras Regulation Act [ V of 1804] the minority of Hindu proprietors of estates paying revenue to Government was extended, to the end of the eighteenth year.

By Acts [XL of 1858] and [XX of 1864] for the care of the persons and property of minors in the Presidency of Fort William in Bengal and in the Presidency of Bombay, respectively, it was enacted that, for the purposes of those Acts, every person should be deemed to be a minor who had not attained the age of eighteen years. European British subjects were excluded from the purview of the Acts. The purpose of those Acts was to alter the Hindu law as to the age of majority in the cases of persons to whom the Acts applied. A question was raised in the Calcutta High Court as to whether the Acts did similarly affect the age of majority of Hindus subject to the ordinary original jurisdiction of that Court, and was decided in the affirmative. That opinion, however, was not shared by some Judges of the same Court. On reference of the question to a Full Bench of the Court, it was decided that a Hindu resident in Calcutta, who had no property in

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the mofussil, attained his age of majority on the completion of his fifteenth year. However the court refrained from deciding the effect of the Acts upon persons resident in Calcutta and possessed property in the mofussil.

In Bombay, however, it was decided that, notwithstanding Act XX of 1864, a Hindu resident in the mofussil come of age on attaining sixteen years so as to be able to prosecute a claim by suit.

In a case which came before late Sadr Diwani Adalat of Bengal, it was held that, according to the Jain law, majority begins on the completion of sixteen years.

2. By Muhammadan law, the end of the fifteen years, or the attainment of puberty is the age of majority .They are, however, equally affected by the Regulation and Acts with Hindus and other British subjects not being Europeans.

3. European British subjects not domiciled in this country come of age at twenty-one, and it has been held that they and their legitimate descendants, even though domiciled in this country, enjoy the same right as regards their capacity to contract.

The class of persons to whom the Indian Succession Act applies includes Europeans by birth or descent domiciled in British India, East Indians or Eurasians, Jews, Armenians, Parsis and Native Christians. The Indian Succession Act defines a minor to be a person who has not completed the age of eighteen years, and defines 'minority' to be the status of such a person. In the case of Rollo v Smith, [(1867) 1 Beng. LR (OC) 10], already referred to Mr. Justice Mark has observed that it would be carrying the implication much too far to suppose that this definition was intended by the legislature as an alteration of the age of majority for all purposes; and held that a person of one of the classes to whom the Act applied did not attain his majority, so as to have full capacity to contract, until he attained the age of twenty-one. In the later case of Archur v Watkins [(1872) 8 Beng LR 372]. Mr. Justice Phear treated the question to be still an open one, and held that, by the provisions of Act XL of 1858, a person of one of the classes to whom the Indian Succession Act applied attained the age of majority, for all purposes of contract, at eighteen years. The ground of his decision as regards the effect of Act XL of 1858, was overruled in a subsequent decision of the Full Bench in Mullick v Mullick. The law respecting the age of majority of persons in that class, therefore is in a more unsatisfactory state than that relating to persons in the other classes.

Such being, briefly, the present state of the law, it is obvious that, in the highly important matter of the age at which persons can enter into binding contracts

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with others and undertake responsibilities as majors, the law of this country is confused and uncertain. To remedy this the present Bill has been drawn. The change proposed by it in the Hindu and Muhammadan laws, is not such which affects any principle of laws touching the religion or conscience of those persons who are subject to them. The change already made by the Regulations and Acts has not resulted into any controversy. However to avoid possibility of any mistake on this point, it is expressly provided in the Bill that it is not to effect the capacity of any person to act in matters connected with personal laws, i.e. marriage, dower, divorce and adoption. By their own laws Muhammandans and Hindus are empowered to act in these matters at an age other than that fixed as the age of majority by these Regulations and other Acts. The amendments proposed hereby are not intended to interfere with their capacity in these respects.

The Bill also provides that it shall not affect the religion or religious rites and usages of any class or the capacity of any person who, before the commencement of the proposed Act, shall have attained majority under the law applicable to him.

The statement of objects and reasons does not speak of the rationale as to why a person whose guardian is appointed by the court becomes major only on attaining the age of twenty-one year as is provided under section 3 of the Act of 1875 which reads as under: Section 3. Age of majority of persons domiciled in Pakistan.

Subject as aforesaid, [every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of [Order XXXII of the First Schedule to the Code of Civil Procedure, 1908], has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, not, withstanding anything contained in the [Succession Act, 1925] or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one year and not before. Subject as aforesaid, every other person domiciled in [Pakistan] shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.

According to the above provisions of the Majority Act, 1875, the age of majority of a person domiciled in Pakistan is eighteen years, except in cases where a Guardian of a minor is appointed by the court, in which case the age of majority extends to twenty-one

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year. This provision needs to be reviewed on the grounds that, it unnecessarily deprives a person of his valuable rights to manage his property and exercise proprietary rights in regards thereto. If a person who is about seventeen and half years (171/2) of age on the death of his father or mother, and a Guardian is appointed for him by the Court, then his age of majority, under Section 3 of the Act, would extend to twenty one years. In the circumstance, a person who could be the master of his property after six months is deprived of all his proprietary rights. It is in comprehendible as to why on the appointment of a Guardian, the minority is extended unreasonably by three more years. If a person on attaining majority at the age of eighteen can manage his property, then why should he be disqualified only by virtue of the fact that a guardian is appointed for him.

The only plausible reason for this provision appears to be, perhaps the assets and estate of Maharajas of the Princely States of India, who were minors and inherited vast properties on the death of their parents. The State considered it appropriate to manage these properties through Court of Wards to protect not only the interest of the minors but also that of the State. For that purpose the period of minority was extended to manage the properties of such minors. The extension in age for those covered by the provisions of Court of Wards is not relevant to guardianship cases where ordinary minors holding properties are involved. After the extinction of Princely States and the creation of two countries, India and Pakistan, the extension in age for minors whose person and property are under the charge of Court of Wards or in whose respect guardians have been appointed by the Court, is no more justified.

Recently the Government has, by constitutional amendment, decreased the age of voters from twenty-one years to eighteen years. However, the above provision continues to be on the statute book. It is, therefore, suggested that Section 3 of the Majority Act 1875 may be appropriately amended by omitting the first part of section 3 through which the age of majority extends to twenty-one years. The proposed amendment is indicated in the table below; -

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Existing Provision Proposed Amendment/Substitution

Section 3. Age of majority of persons domiciled in Pakistan. Subject as aforesaid, [every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of [Order XXXII of the First Schedule to the Code of Civil Procedure, 1908], has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, be deemed to have attained his majority when he shall have completed his age of twenty-one year and not before.

Section 3. Age of majority of persons domiciled in Pakistan. Subject as aforesaid, every person domiciled in Pakistan shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.

Commission’s Deliberations.

The Commission in its meeting held on 14th February, 2004 discussed the working paper and the proposed draft amendment bill of Majority Act, 1875 and pointed out that there is no uniform majority age fixed in Pakistan, and various laws fix different ages for different purposes. The Commission further proposed that all such provisions may be looked into and an attempt made to prescribe a uniform age, if possible. The Secretary was asked to prepare a draft to this effect for the consideration of the Commission. As desired majority age in different statutes is attached as an annexure.

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A Bill

to amend the Majority Act, 1875 Whereas it is expedient to amend the Majority Act, 1875 for the purpose hereinafter appearing; It is hereby enacted as follows.

1. Short title and Commencement. - (1) This Act may be called the Majority (Amendment) Act, 2007. (2) It shall come into force at once. 2. Substitution of Section 3, Act No IX of 1875. - In the Majority Act, 1875 (IX of 1875), for section 3, the following shall be substituted, namely: -

“3. Subject as aforesaid, every person domiciled in Pakistan shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”. Reference: 1. Page 1 to 6 is the quotation taken from AIR Manual vol 25 p 104, 105. 2. 1989 CLC 497. 3. The Majority Act, 1875.

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Fixing Minimum Age for Various Purposes In the Law Lexicon, age is defined as follows: Age: - In common acceptation age signifies a man’s life from his birth to any certain time, or the day of his death; it has also hath relation to that part of time wherein men live. But in the law it is particularly used for those special times which enable persons of both sexes to do certain acts, which before, through want of years and judgment, they are prohibited to do as power to enter into contracts or enter into matrimony. (Tomlin’s Law Dictionary, Vol. I.) As for example, a man at twelve years of age ought to take the oath of allegiance to the king at fourteen, which is his age of discretion, he may consent to marriage, and choose his guardian; and at twenty one he may alienate his lands, goods, and chattels; a woman at nine years of age is dowable; at twelve she may consent to marriage; at fourteen she is at years of discretion, and may choose a guardian; and at twenty-one she may alienate her lands. There are several other ages mentioned in our ancient books relating to aid of the lord, ward ship, now of no use. The age of 21 is full age of man or woman, which enables them to contract and manage for themselves, in respect to their estates, until which time they cannot act with security to those who deal with them; for their acts are in the most cases either void or voidable. Fourteen is the age by law to be a witness; and in some cases a person of nine years of age hath been allowed to give evidence. None may be a member of Parliament under the age of twenty-one years; and no man can be ordained priest till twenty-four; nor be a bishop till thirty years of age.

There is no standard definition of majority age in Pakistan. Various laws prescribe different ages for exercising civil, political, economic rights or criminal liabilities, as follows: S. No. Law Sections Age mention in law

1. Constitution of

Pakistan 1973

Article 11(3) No child below the age of 14 years shall be engaged in any factory or mine or any other hazardous employment.

2. -do- Article 41(2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly.

3. -do- Article 62(b) Qualifications for membership of National Assembly: He is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral role.

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4. Election Laws General Elections 2002

Section 8 D(d) Qualifications for membership of Provincial Assembly: He is, in the case of a Provincial Assembly, not less than twenty-five years of age and is enrolled as voter in any area in Province from where he seeks membership for that Assembly.

5. Constitution of Pakistan 1973

Article 62(c) Qualifications for membership of Senate: He is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership.

6. -do- Article 179 A judge of the Supreme Court shall hold office until he attains the age of 65 years, unless he sooner resigns or is removed from his office.

7. -do- Article 193(2) A person shall not be appointed a judge of a High Court unless he is a citizen of Pakistan; is not less than [forty-five years] of age.

8. -do- Article 195 A judge of High Court shall hold office until he attains the age of 62 years, unless he sooner resigns or is removed from office in accordance with the Constitution.

9. -do-

Article 51(2)(b) A person shall be entitled to vote if- (b) he is not less than eighteen year of age.

10. The Factories Act, 1934

Section 2(a) “Adolescent” means any person who has completed his fifteenth but has not completed his seventeenth year.

11. -do- 2(b) “Adult” means a person who has completed his seventeenth year.

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12. The Factories Act, 1934

2(c) “Child” means a person who has not completed his fifteenth year.

13. The Children (Pledging of Labour) Act, 1973

Section 2 “Child” means a person who is under the age of fifteenth year.

14. The Mines Act, 1923

Section 3(c) “Child” means a person who has not completed his fifteenth year.

15. Child Marriage Restraint Act, 1929

Section 2(a) “Child” means a person who, if a male is under eighteenth years and if a female is under 16 years of age

16. Employment of Children Act, 1991

Section 2 (i) “Adolescent” means a person who has completed his fourteenth but has not completed his eighteenth year;

17. -do- (ii) “Child” means a person who has not completed his 14 years of age.

18. -do- Section 19 Certain other provisions of law not barred. – Subject to the provisions contained in section 15, the provisions of this Act and the rules made thereunder shall be in addition to, and not in derogation of the provisions of the Mines Act, 1923, the Factories Act, 1934, the Sindh Children Act, 1955, the Shops and Establishments Ordinance, 1989 and the Punjab Children Ordinance, 1983. The definition of “child” and “adolescent” in these provisions shall be deemed to have been amended in accordance with the definition in Section 2 of this Act.

19. The Majority Act, 1875

Section 3 Age of majority of persons domiciled in Pakistan. – Subject as aforesaid, every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of Order XXXII of the First Schedule to the Code of Civil Procedure, 1908, has been or shall be appointed or declared by any Court of

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Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age, shall, notwithstanding anything contained in the Succession Act, 1925 or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before. Subject as aforesaid, every other person domiciled in Pakistan shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.

20. The Offences of Zina (Enforcement of Hudood) Ordinance, 1979

Section 2(a) 18 years for male & 16 years for female or age of puberty, (for the purposes of offence and criminal liability)

21. Offences of Qazf (Enforcement of Hudood) Ordinance, 1979

Section 2(a)

-do-

22. Offences Against Property (Enforcement of Hudood), Ordinance, 1979

Section 2(a) 18 years or age of puberty

23. Prohibition (Enforcement of Hudood) Ordinance, 1979

Section 2(a) -do-

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24. Pakistan Penal Code, 1860

Section 82 Provides that a child below the age of 7 is presumed innocent.

25. -do- Section 83 Children between the ages of 7 and 12 who have not attained sufficient maturity are also presumed in innocent.

26. -do-

Section 292 & 293

Make it an offence to sell, let to hire, distribute, exhibit or circulate to any child below the age of 21 years of obscene object, including book, pamphlet, paper drawing, painting representation or figure.

27. -do- Section 361 Make it a criminal offence to take or entice any male child below 14 or a female below 16 years of age.

28. -do- Section 366 A Whoever kidnaps of abducts any women under the age of 18 years with the intent that such girls may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with other person.

29. Juvenile Justice System Ordinance 2000.

Section 2(b) Child means a person who at the time of commission of an offence has not attained the age of 18 Years.

30. The Passport Act, 1974

Section 4 Punishment for contravention of Section 3 (prohibition of departure from Pakistan without passport etc) A citizen of Pakistan, who is of the age of 12 years or more, should be punishable with imprisonment for a term which may extend to one year or fine or with both.

31. The Citizenship Act, 1951

Section 2 “Minor” means notwithstanding anything in the Majority Act, 1875, any person who has not completed the age of twenty-one years.

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32. The Succession Act, 1925

Section 2(e) “Minor” means any person subject to the Majority Act, 1875, who has not attained his majority with in the meaning of that Act, and any other person who has not completed the age of eighteen years, and “Majority” means the status of any such person.

33. The Workmen’s Compensation Act, 1923

Section 2(1)(a) “Adult” and “Minor” means a person who is not and a person who is under the age of fifteen years

34. The Code of Criminal Procedure, 1898

Section 29 (b) Jurisdiction of the case of juvenile. -Any offence, other than one punishable with death or transportation for life, committed by any person who at the date when he appears or is brought before the Court is under the age of fifteen years, may be tried by a District Magistrate or by any Magistrate specially empowered by the Provincial Government to exercise the powers conferred by section 8, sub-section (1), of the Reformatory Schools Act, 1897, or, in any area in which the said Act has been wholly or in part repealed 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.

35. -do- Section 497-1 1. When bail may be taken in cases of non-bailable offence. ---- (1) When any person accused of 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 an offence punishable with death or imprisonment for life or imprisonment for 10 years.

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.

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36. The Punjab Youthful Offenders Ordinance, 1983

Section 4 A person shall be deemed to be a child, if at the time of initiation of any proceedings against him under the Ordinance, he has not attained the age of fifteen years.

37. The Pakistan National Service Ordinance, 1970

Section 3 Compulsory national service has been prescribed for every male citizen of Pakistan who has attained the age of eighteen years and has not attained the age of twenty one years.

38. The Representation of the People Act 1976

Section 99(b) (i)

Disqualifications. - A person shall not be qualified to be elected as a member of an Assembly, unless is not less than twenty five years of age and is enrolled as a voter in any electoral roll.

39. The Mines Act, 1923.

Section 26 (b) No person who has not completed his 17 years shall be permitted to work in any part of mine.

40. The Motor Vehicles Ordinance 1965

Section 4 (1)

No person shall drive in any public place. (i) A Motor cycle or an invalid carriage unless he has attained the age of eighteen years.

41. -do- (ii) a motor car, otherwise than as a paid employee, unless he has attained the age of eighteen years.

42. -do- (iii) a motor car as a paid employee or a transport vehicle, unless he has attained the age of twenty one years.

43. -do-

(iv) a heavy transport vehicle, unless he has attained the age of twenty two years.

44. -do- 4 (2) (a) No person above the age of fifty years shall drive a transport vehicle in any public place unless the licence entitling so to do bears an effective endorsement by the licensing authority that such person has furnished a certificate in Form B as set forth in the First Schedule signed by the registered medical practitioner.

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45. The West Pakistan Shops and Establishments Ordinance, 1969

Section 2(a) “Adult” means a person who has completed his seventeenth year of age.

46. Army Rules and Regulations/Army Rules and Instructions

Recruitment of Officers age is 17 to 22 year upper limit can be relaxed for one year and Recruitment for other ranks (o/r) 17 to 22.

47. Election Laws General Election (2002)

Section 7-A Age of voters. – Notwithstanding anything contained in the Constitution or any other law for the time being in force including the Electoral Rolls Act, 1974 (XXI of 1974), for the election of members of the Senate, National Assembly and Provincial Assemblies, a citizen who has attained the age of 18 years on the first day of January, 2002, shall be eligible to vote and the Chief Election Commissioner shall cause the electoral rolls to be prepared accordingly under the provisions of the Electoral Rolls Act, 1974.

48.

The Divorce Act, 1869

Section 3(5) Minor Children:- “minor children” means, in the case of sons of Pakistani fathers, boys who have not completed the age of sixteen years, and, in the case of daughters of Pakistani fathers, girls who have not completed the age of thirteen years: in other cases it means unmarried children who have not completed the age of eighteen years:

49. The Christen Marriage Act, 1872.

Section 3 “minor” means a persons who has not completed the age of twenty-one years and who is not widower or a widow;

50. The Contract Act, 1872

Section 11 Every person is competent to contract who is of the age of majority according to the law to which he is subject.

51. The Guardians and Wards Act, 1890

Section 4(1) “minor” means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his majority:

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52. The Reformatory Schools Act, 1897

Section 4(a) “Youthful offender” means any boy who has been convicted of any offence punishable with imprisonment and who, at the time of such conviction was under the age of fifteen years.

53.

The Partnership Act, 1932

Section 30(1) Minors admitted to the benefits of partnership. A person who is a minor according to the law to which he is subject may not be a partner in a firm, but, with the consent of all the partners for the time being, he may be admitted to the benefits of partnership.

54. The Parsi Marriage and Divorce Act, 1936

Section 3(c) No marriage shall be valid if in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who has not completed the age of twenty-one years, the consent of his or her father or guardian has not been previously given to such marriage.

55. The Dissolution of Muslim Marriages Act, 1939

Section 2(VII). A women married under Muslim Law shall be entitled to obtain decree for the dissolution of the marriage if she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:

56. The Emigration Ordinance, 1979

Section 2(e) “dependent”, in relation to an emigrant, means the spouse, sons not above the age of twenty-one years, and unmarried sisters and daughters of the emigrant, and includes aged or incapacitated parents, incapacitated sons above the age of twenty-one years and widowed and divorced sisters and daughters of the emigrant wholly dependent upon and residing with the emigrant and the sons not above the age of twenty-one years, and dependent unmarried daughters, of such widowed or divorced sisters or daughter;

57. The Mental Health Ordinance, 2001

Section 2(o) “Minor” means a child or adolescent not having attained the age of eighteen years.

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58. The Prevention and Control of Human Trafficking Ordinance 2002

Section 2(b) “child” means any person who has not attained the age of eighteen years.

59. Prohibition of Smoking and Protection of Non Smokers Health Ordinance 2002

Section 8 No person shall sell cigarettes or any others smoking substance to any person who is below the age of eighteen years.

60. National Highways Safety Ordinance 2000

Section 4(a) (b) No person shall drive on a National Highway:- (a) a motor cycle or a motor car, otherwise than as a paid employee unless he has attained the age of eighteen years. (b) a transport vehicle, a public service vehicle, a motor car or an animal drawn vehicle as a paid employee unless he has attained the age of twenty-one years.

61. National Data Base and Registration Authority Ordinance 2000

Section 9 Registration of citizens:- Every citizen in or out of Pakistan who has attained the age of eighteen years shall get himself and a parent or guardian of every citizen who has not attained that age shall, not later than one month after the birth of such citizen, get such citizen registered in accordance with the provisions of this Ordinance. Provided that the authority may, on case to case basis, extend the period for registration of a citizen who has not attained the age of eighteen years.

62. The Minimum Wages Ordinance 1961

Section 2(1)

“Adult” has the same meaning as in clause (b) of section 2 of the Factories Act, 1934 i.e. a person who has completed his seventeenth years.

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Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the proposal to amend the provisions of Section 3 of the Majority Act 1875 the age of attaining majority is fixed at 18 years, however, in cases where a guardian is appointed for a minor or the property of a minor is taken under the superintendence of a Court of Wards, the age of majority of such minor ward gets extended under the law to 21 years, which is unfair and discriminatory. There is therefore a need to review the provision, so as to fix a uniform age of 18 years for attaining majority, irrespective of the fact as to whether a guardian is appointed or otherwise. The Chairman enquired as to whether there exists any other law fixing age of majority of a person as 18 years and the Secretary informed that a study was conducted by the Commission’s Secretariat on this issue and a report to this effect is appended to the working paper for consideration of the Commission. The Chairman responded that the Secretary should conduct a study to examine the desirability of prescribing a uniform age limit across the board for different functional requirements. The Chief Election Commissioner referring to serial No. 15 on the list pointed out that under the Child Marriage Restraint Act 1929 the age of the male is fixed 18 years for the purpose of marriage. In the electoral laws the age of a voter is also fixed 18 years. He further stated that for having a driving license under the Motor Vehicle law the age of a person is fixed for 18 years. The Chief Justice, Federal Shariat Court informed that in the Partnership Act, a 6 months period is given to a person on attaining of the age of 18 years for his option to remain partner of a firm. The Chief Justice, High Court of Sindh expressed the view that under the Juvenile Justice System Ordinance 2002, a person is juvenile before attaining the age of 18 years. The Chief Election Commissioner stated that the Prohibition of Smoking Act permits the sale of cigarettes to a person above the age of 18 years. The Chief Justice, Peshawar High Court said that in the Citizenship Act 1951, the age of a person is fixed 21 years for the purpose of the Act. He further observed that there should be no disparity in the age of majority. The Chief Justice, High Court of Sindh stated that the age of 18 years is a standard age which may uniformally be the age of majority for various purposes. Mrs. Nasira Iqbal stated that in the Guardians and Wards Act and other laws, fixing the age of majority, may be examined for the purpose of prescribing a uniform age limit. The Chairman observed that different laws fix different age limits for the purpose of such laws and the Commission is not touching the merits or demerits of fixing of such age limits but there is a need to examine the issue of bringing uniformity in the age of majority for various purposes. The Chief Justice, Federal Shariat Court observed that where the superintendence of property of a minor is taken by the Court of Wards, the age of 21 years may be fixed for majority so that the ward becomes mature to deal with his property. The Secretary responded that this provision might have some justification during the colonial era where large estates were owned by princes/Jagirdars and after

24

their death their children would not be able to adequately look after such vast property/estates, however in the present day, the estates of the colonial period have vanished therefore, the provision requires to be reviewed. The Commission therefore, recommended that Section 3 of the Majority Act 1875 be suitably amended to fix a uniform majority at the age of 18 years.

25

GUARDIANS AND WARDS ACT, 1890

Report No. 91

( - )

26

GUARDIANS AND WARDS ACT, 1890 The Guardians and Wards Act, 1890 consolidated the earlier sketchy legislation on the subject. The previous statutes included the Act 40 of 1858, which was for the minors in the Presidency of Bengal and Madras; the Act 20 of 1864, which was for the Presidency of Bombay; the Act 9 of 1861 and Act 1874 which were for the minors in territories beyond the jurisdiction of chartered High Courts. Therefore, in order to consolidate and to bring the law in accord with the requirements of time, these laws were consolidated in the Guardians and Wards Act (VIII of 1890).

It may be relevant to mention that with the passage of time, particularly, after independence, some provisions of law lost their importance and became obsolete/redundant because they were framed in the perspective of the British Raj. For example, the expression “who is not a European British subject” finds mention in section 6 of the Act, which is unnecessary, especially when Section 5 of the Act 1890, relating to the power of parents to appoint in case of European British subjects has been omitted vide Federal Laws (Revision and Declaration) Ordinance 1981. Thus, the expression “who is not a European British subject”, in Section 6 needs to be deleted.

Section 19 of the Act, 1890 prohibits the appointment of a Guardian in certain situations. The Section states:

Section 19: Guardian not to be appointed by the Court in certain cases. Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of minor whose property is under the superintendence of a Court of Wards or to appoint and declare a guardian of the person: (a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person; (b) subject to provisions of this Act with respect to European British subject, of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor; or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

Clause (b) prohibits the appointment of a guardian in respect of minor British subject, whose father is alive and is not unfit to be appointed as guardian. In view of the deletion of section 5 of the Act 1890, the expression, “with respect to European British subject”, became redundant, hence need to be deleted. The consequences of such deletion would be that no person could be appointed guardian of the property and person of the minor if his father is living and is not adjudged unfit by the Court. In a case reported in PLD 1963 Lah 534 it was held that the father must be regarded as the natural guardian of his children, both male and female until they attain the age of 18 years. Similarly, in another case reported in PLD 1975 Lah 793 it was held that in the presence of father,

27

no other guardian can be appointed unless the Court is of opinion that father is unfit to be a guardian. According to Sir Abdul Rahim:

Guardianship has been instituted solely for the benefit of the minor and cannot, therefore, he said to be the absolute right of any one in the sense that the Court, will be bound to recognize it apart from the question whether in any individual case it will promote the welfare of the minor or not. It is the primary right of the parent to have the custody of the children…for a boy the limit is fixed at seven years and for a girl when she attains puberty.

In order to provide equal right of guardianship, both as natural or declared guardian, clause (b) need to be amended by insertion of the word “mother” after the word father. In this way, both parents would be the guardian of the person and property of the minor, if otherwise not declared unfit. This will also require a consequential amendment in Section 41 of the Act relating to cessation of authority of guardian. Clause (e) of subsection (1) of Section 41 need to be amended by inserting the word, “mother”, after the word father, so that the disqualification currently applicable to father may also apply to mother.

It is therefore proposed, that, in section 19 and 41 of the Act, mother may be included with father to be considered for the appointment of guardian of a minor person, and should be liable to be adjudged disqualified under section 41 (1) (e) of the Act. Comparative Chart of the existing and proposed amendment is as under:

Existing Provision Proposed Provision Section 6. Saving of power to appoint in each cases: In the case of a minor who is not an European British subject, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject.

Section 19. Guardian not to be appointed by the Court in certain cases. Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor

Section 6. Saving of power to appoint in each cases: In the case of a minor . . . nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject. Section 19. Guardian not to be appointed by the Court in certain cases. No change

28

whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person--- (a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or (b) subject to the provision of this Act with respect to European British subject, of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor. Section 41. Cessation of authority of guardian. (1) The powers of the guardian of the person cease— (a) by his death, removal or discharge; (b) by the Court of Wards assuming superintendence of the person the ward; (c) by the ward ceasing to be a minor; (d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit; or

No change (b) subject to the provision of this Act . . . a minor whose father or mother is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or No change Section 41. Cessation of authority of guardian. No change No change No change No change No change

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(e) in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.

(e) in the case of a ward whose father or mother was unfit to be guardian of the person of the ward, by the father or mother ceasing to be so or if the father or mother was deemed by the Court to be so unfit, by his or her ceasing to be so in the opinion of the Court.

Reference: 1. AIR Patna 505 2. AIR Vol. 20 p 406 3. The Pakistan Code Vol. 3 Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the proposal to amend the provisions of the section 6 of the Guardians and Wards Act 1890. it is mentioned that a minor ‘who is not a European British subject’, which, provision being old and having become redundant requires to be omitted from the Act. There exists no separate law applicable to European British subjects after creation of Pakistan therefore, the exception existing in the above provision of the Act needs to be deleted. The Commission agreed to the deletion of the words “who is not a British European subject” from Section 6 of the Act. The Commission further considered the discriminatory provisions contained in section 19(b) of the Act providing that no guardian of a minor be appointed by the court whose father, in the opinion of the court is not unfit to be guardian of a person of the minor. The above provision excludes the mother despite having a right to lawful custody of the minor. Mrs. Nasira Iqbal and Dr Arfa Sayeda Zehra, members of the Commission stated that in the presence of mother having custody of a child no guardian of person of the child may be appointed, if the mother is not, in opinion of the court, unfit to be guardian of a person of minor. The Commission approved the proposed amendment alongwith the consequential amendment in Section 41 (e) of the said Act with regard to reference of mother of the minor therein.

30

Amendment in Section 250 of the Code of Criminal Procedure, 1898

Report No. 92

( - )

31

Amendment in Section 250 of the Code of Criminal Procedure, 1898.

Compensation on false, frivolous or vexatious accusation provided under section 250 (2) of Cr.P.C was enhanced from five hundred rupees to twenty five thousand rupees and in case of offence triable by Magistrate of the third class the compensation amount was enhanced from fifty rupees to two thousand and five hundred rupees by the Code of Criminal Procedure (Amendment) Ordinance 1980 (VI of 1980).

Section 250. Cr. P.C reads as fallows:-

250. False frivolous or vexatious accusations. (1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate, by whom the case is heard acquits all or any of the accused and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may by his order of acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or if such person is not present direct the issue of a summons to appear and show cause as aforesaid.

(2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious, may, for reasons to be recorded, direct that compensation to such amount not exceeding twenty five thousand rupees or if the Magistrate is a Magistrate of the third class not exceeding two thousand and five hundred rupees, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

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

(2B) When any person is imprisoned under sub-section (2A), the provisions of section 68 and 69 of the Pakistan Penal Code shall, so far as may be, apply.

(2C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the compliant 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.

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(3) A complainant or informant who has been ordered under subsection (2) by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees may appeal form the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.

(4) When an order for payment of compensation to an accused person is made, in case which is subject to appeal under sub-section (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order.

Section 250, Cr.P.C. empowers the Magistrate by whom the case is heard to grant compensation for false, frivolous or vexatious accusation. The ingredients of section 250, Cr.P.C. are:

(i) the case should be instituted upon complaint or upon information given to a police officer or to a Magistrate,

(ii) against one or more persons, (iii) making the alleged persons accused before Magistrate of any offence triable

by a Magistrate, (iv) the Magistrate who hears the case discharges or acquit the accused, (v) the Magistrate while discharging or acquitting the accused is of the opinion

that the accusation was false and either frivolous or vexatious, (vi) and if the complainant is present and the accused calls upon him forthwith to

show cause why he should not pay compensation.

The main object of S.250 is to award, in a summary way compensation to the person against whom a frivolous or vexatious accusation is brought without curtailing their right to seek redress from Civil Court. Its further object is to deter persons from making false accusation. The provisions of S.250, Cr.P.C. provide sufficient safeguard to an accused against a false and frivolous accusation by the complainant.

Due to increasing of inflation rate the amount of compensation is inadequate and needs to be suitably enhanced with a view to discourage the tendency of false frivolous or vexatious accusation on filing of private complaints.

It is proposed to enhance the compensation amount provided under section 250(2) of Cr.P.C. from twenty five thousand rupees to forty thousand rupees and in case of offence triable by Magistrate of the third class, the amount of compensation from two thousand and five hundred to three thousand rupees.

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In sub-section (3) order for payment of compensation for the purpose of appeal may also be enhanced from fifty rupees to five hundred rupees.

COMPARATIVE CHART

Existing Provision Proposed Provision Section 250. False frivolous or vexatious accusations. (1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of acquittal, if the person upon whose complaint or information the accusation was made is present call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any, of such accused when there are more than one, or if such person is not present direct the issue of a summons to appear and show cause as aforesaid. (2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious, may, for reasons to be recorded, direct that compensation to such amount not exceeding twenty five thousand rupees or, if the Magistrate is a Magistrate of the third class not exceeding two thousand and five hundred rupees, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

No Change.

(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 forty thousand rupees or, if the Magistrate is a Magistrate of the third class not exceeding three thousand, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

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

(2B) When any person is imprisoned under sub-section (2A), the provisions of section 68 and 69 of the Pakistan Penal Code shall, so far as may be, apply.

(2C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the compliant made or information given by him:

Provided that any amount paid to an accused person under this section shall be taken into account, in awarding compensation to such person in any subsequent civil suit relating to the same matter.

(3) A complainant or informant who has been ordered under subsection (2) by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees may appeal from the order, insofar as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.

(4) When an order for payment of compensation to an accused person is made, in case which is subject to appeal under sub-section (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order.

No change

No Change

No Change

(3) A complainant or informant who has been ordered under subsection (2) by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding five hundred 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.

No Change.

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Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the proposal to amend the provisions of Section 250 of the Code of Criminal Procedure 1898, prescribing certain amount for compensation to be paid by a complainant or informant to the accused, if a Magistrate is satisfied that the complaint or the information for proceeding against the accused was found false or frivolous or vexatious. The Chairman observed that the present amount of compensation earlier enhanced in the year 1980, has lost its value because of increase in rate of inflation. The Chief Justice, Federal Shariat Court observed that there is a tendency towards false, frivolous and vexatious litigation in the society. The Commission therefore, recommended the enhancement of compensatory costs provided in Subsection (2) of Section 250 Cr.PC to be awarded by the Magistrate from Rs. 25000/- to Rs. 40000/- or if the Magistrate is a Magistrate of the Third Class it be enhanced from Rs. 2500/- to Rs. 3000/- and for the purpose of appeal under Subsection (3) of Section 250 the amount is enhanced from Rs. 50/- to Rs. 500/-. Mr. Justice ® Amirul Mulk Mengal stated that alongwith private complainant or informant the state/prosecution agencies may also be brought into the check. The Chairman observed that the prosecution agencies like police, FIA, Immigration, or Anti Narcotics agencies also file complaints which are later-on found false or vexatious, and the accused person suffers the agony of prosecution/detention in prison by defending himself against the complaint against him. Therefore, the responsibility should also be fixed on the state agencies who resort to such nefarious practices. The Commission further added that courts awarding compensatory costs generally overlook false and frivolous complaints despite having been proved false, therefore, it should be made mandatory for the Court to award compensatory costs, if the complaint is proved false or frivolous. The Chief Justice, High Court of Sindh expressed the view that the recovery of compensation through Collector as arrears of land revenue is also a problem as the Executive Officers are generally non-cooperative in the recovery process of compensation, therefore, the courts overlook the issue of awarding compensation, even though the complaint is found false. So, the Magistrate may be given a power to recover the compensatory amount from the complainant, which power may vest in the Magistrate. The Chairman observed that the amendment as proposed may be carried and suggestion made by the Mr. Justice ® Mengal and the Chief Justice, High Court of Sindh may be examined by the Secretariat.

36

Amendment in Section 102 of the Code of Civil Procedure, 1908

Report No. 93

( - )

37

Amendment in Section 102 of the Code of Civil Procedure, 1908

Section 102 of the Code of Civil Procedure 1908 as amended by Act No. VIII of 2004 provides that no second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes. Section 102 of the Code reads as follows:-

“Section 102. No second appeal in certain cases.- No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes 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 Government may by law determine.”. The Courts of Small Causes were established under the Provincial Small Cause

Courts Act 1887 (IX of 1887). The Provincial Small Cause Courts Act 1887 (IX of 1887) has been repealed by Section 42 of the Small Claims and Minor Offences Courts Ordinance 2002 and the Courts of Small Causes have been abolished and in their place the Small Claims and Minor Offences Courts have been established within all the four provinces. In view of the above change in the law and establishment of Courts of Small Claims under the said Ordinance and abolishment of Courts of Small Causes on repeal of the Provincial Small Causes Courts Act 1887, section 102 of the Code requires to be amended accordingly otherwise a second appeal will lie in any suit of the nature cognizable by Courts of Small Claims and Minor Offences.

In the light of above an amendment in the Code of Civil Procedure 1908 is

proposed in the following:-

“In the Code of Civil Procedure 1908, in Section 102, for the word “Causes” the word “Claims” shall be substituted.”.

The comparative table of existing section 102 and the proposed amendment

alongwith the proposed amendment Bill are placed below.

Comparative Table

Existing Provision Amended Provision Section 102. No second appeal in certain cases.- No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes 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 Government may by law determine

Section 102. No second appeal in certain cases.- No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes 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 Government may by law determine

38

A

Bill

further to amend the Code of Civil Procedure 1908 (Act V of 1908). WHEREAS it is expedient to amend the Code of Civil Procedure 1908 for the purposes hereinafter appearing; It is hereby enacted as follows:- 1. Short title and commencement.- (1) This Act may be called the Code of Civil Procedure (Amendment) Bill, 2007. (2) It shall come into force at once. 2. Amendment of Section 102 Act V of 1908.- In the Civil Procedure Code (Act V of 1908) in Section 102, for the word “Causes” the word “Claims” shall be substituted”. Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the proposal to amend the provisions of the section 102 of the Code of Civil Procedure containing mention of the Court of Small Causes which provision has become redundant on the repeal of Provincial Small Cause Courts Act 1887, by Section 42 of the Small Claims and Minor Offences Courts Ordinance 2002. It therefore requires mention of the present law. The Commission approved the substitution of the word “claims” for the words “causes” to make the Section 102 CPC operative for the purpose of new law currently in force.

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Omission of Sub-rule (1) of Rule 4, Order XX of the Code of Civil Procedure, 1908

Report No. 94

( - )

40

OMISSION OF SUB-RULE (1) OF RULE 4, ORDER XX, of the Code of Civil Procedure 1908.

Order XX of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908), lays down the rules applicable in respect of judgments and decrees made by the Courts. Sub-rule (1) of rule 4 of Order XX of the Code of Civil Procedure, 1908 (Act V of 1908), provides for the guidelines regarding judgments of a Court of Small Causes. Sub-rule (1) of rule 4 ibid is reproduced hereunder for reference:-

“4. Judgments 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.”

In this connection, it is pointed out that the Small Claims and Minor Offences Courts Ordinance, 2002 (XXVI of 2000), hereinafter referred to as the said Ordinance, has been made and promulgated on the 19th June, 2002. However, as regards the commencement of the said Ordinance, sub-section (3) of section 1 thereof provides as under:-

“ (3) It shall come into force on such date as the Federal Government may,by notification in the official Gazette, appoint in this behalf.”

Now, the said Ordinance has come into force with effect from the 15th July, 2004, vide the Federal Government’s Notification No. S.R.O 601 (I)/2004, dated the 15th July, 2004. Accordingly, the Small Claims and Minor Offences Courts have been established under section 4 of the said Ordinance.

However, after coming into force of the said Ordinance, the Provincial Small Cause Courts Act, 1887 (IX of 1887), stands repealed under sub-section (1) of section 42 of the said Ordinance. Sub-section (1) of section 42 ibid is reproduced as under:-

“ 42. Repeal and savings.- (1) On coming into force of this Ordinance, the Provincial Small Cause Courts Act, 1887 (IX of 1887), shall stand repealed.”

Thus, after the repeal of the Provincial Small Cause Courts Act, 1887 (IX of

1887), the Courts of Small Causes stand abolished. Furthermore, section 3 of the said Ordinance, provides that the same shall have overriding effect over other laws. Section 3 ibid is reproduced as follows:-

“3. Ordinance to override other laws.- The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.”

41

Conclusion: In view of the foregoing, it is pointed out that in sub-rule (1) of rule 4 of Order XX

of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908), the reference to the Court of Small Causes has become obsolete and unnecessary after coming into force of the said Ordinance. Recommendation:

It is one of the functions of the Law and Justice Commission of Pakistan under clause (v) of section 6 of the Law and Justice Commission of Pakistan Ordinance, 1979 (XIV of 1979), to make recommendation for repealing obsolete or unnecessary provisions in the laws. In view of the foregoing, it is suggested that the Commission may make recommendation to the Federal Government that sub-rule (1) of rule 4 of Order XX of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908), is an obsolete and unnecessary provision.

Legislative proposal:

It is, therefore, suggested that in rule 4 of Order XX of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908),-

(i) sub-rule (1) and the marginal heading thereto shall be omitted; and

(ii) in sub-rule (2) and in the marginal heading thereto, the word “other” shall be omitted.

Comparative table:

Existing Provision Amended Provision

4. Judgments 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.

4. (1) [Omitted.]

(2) Judgments of Courts.- Judgments of Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

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Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered Rule 4 of the Order XX of the Code of Civil Procedure 1908 and found its sub-rule (1) referring judgment of the Court of Small Causes as redundant in view of the repeal of the Provincial Small Cause Courts Act 1887. The Commission therefore, recommended the repeal of sub-rule (1) of Rule 4 of Order XX of the Code of Civil Procedure and renumbering of its sub-rule (2) as sub-rule (1) of Rule 4 of the said Order.

43

Amendment of Sections 400, 401 & 402 of the Pakistan Penal Code 1860

(Act XLV of 1860)

Report No. 95

( - )

44

AMENDMENT OF SECTIONS 400, 401 AND 402 OF THE PAKISTAN

PENAL CODE, 1860 (ACT XLV OF 1860)

The Pakistan Penal Code, 1860 (Act XLV of 1860), was made on the 6th October, 1860, which was adopted after separation to provide a general penal code for Pakistan. 2. Sections 400, 401 and 402 of the Pakistan Penal Code, 1860 (XLV of 1860), hereinafter referred to as the said Code, provide for punishment for belonging to gang of dacoits, gang of thieves and assembling for purpose of committing dacoity, respectively, as under:-

Section 400: Punishment for belonging to gang of dacoits.- Whosoever, at any time after the passing of this Act, shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Section 401: Punishment for belonging to gang of thieves.- Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Section 402: Assembling for purpose of committing dacoity.- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

3. From plain reading of the provisions of sections 400, 401 and 402 ibid it transpires that the phrase “at any time after the passing of this Act” reflects that the offences defined in said sections were newly introduced at the time of making of the said Code. Therefore, in the said sections, the phrase “at any time after the passing of this Act” may have been relevant at the time when the said Code was made. However, at present, after the passage of almost 146 years, the retention of the aforesaid phrase in sections 400, 401 and 402 ibid does not appear necessary. 4. Moreover, in case the phrase “at any time after the passing of this Act” is omitted in sections 400, 401 and 402 ibid, there shall not occur any change in the meaning of the text of the said sections. However, it is certain that the text of the said sections shall be simplified and shall become more clear. 5. In addition, from legislative drafting point of view, in the above referred sections, the phrase “at any time after the passing of this Act” is unnecessary and the same no longer serve any useful purpose.

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Conclusion:

In view of the foregoing, in sections 400, 401 and 402 of the Pakistan Penal Code, 1860, the phrase “at any time after passing of this Act” is unnecessary.

Legislative proposal:

In the light of the foregoing discussion, it is suggested that in the Pakistan Penal Code, 1860 in section 400, 401 and 402 PPC the commas and words“, at any time after the passing of this Act, “may be omitted;

Comparative table of existing provisions and proposed amendment follows:

Comparative Table

Existing provisions. Amended provisions. 400. Punishment for belonging to gang of dacoits.- Whosoever, at any time after the passing of this Act, shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 401. Punishment for belonging to gang of thieves.- Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. 402. Assembling for purpose of committing dacoity.- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

400. Punishment for belonging to gang of dacoits.- Whosoever shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

401. Punishment for belonging to gang of thieves.- Whoever shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

402. Assembling for purpose of committing dacoity.- Whoever shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

46

Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the proposal of the Secretariat that the words “at any time after passing of this Act” used in sections 400, 401 and 402 of the Pakistan Penal Code 1860 have become obsolete/redundant after passing of period of about one and half century and now the commission of the offence under the said sections have no relevance with the exception provided to the offences of the period before passing of the Act. The Commission therefore, approved the omission of the words “at any time after passing of this Act” from all the three sections of the Pakistan Penal Code.

47

Amendment in Section 2 of the Succession Act, 1925

Report No. 96

( - )

48

AMENDMENT IN SECTION 2 OF THE SUCCESSION ACT 1925

The Succession Act 1925 was promulgated by the Britishers for providing a consolidated law of intestate and testamentary succession to its colonial subjects who belonged to various religious communities. This law was adopted after the partition of India vide the Adaptation of Acts and Ordinances Order 1949 and the Act continued to be applicable on different religious communities of this land. The Christian Citizens of Pakistan are also governed by this Act for the purposes of their succession and inheritance.

The rules for determination of heirs of Pakistani Christians and their shares have been determined in sections 31-49 of the Act. These provisions have no gender discrimination. According to section 37 where the intestate has left surviving him a child or children but no more remote lineal descendents through a deceased child the property shall belong to his surviving child if there is only one, or shall be equally divided among all the surviving children. There is also no distinction between maternal kindred and paternal kindred or between full blood and half blood relations. The Act also provide ⅓ share to the widow and even to the widower.

Some quarters from the Christian Community in Pakistan have objected on the said law of inheritance and declared it as against the teachings of the old testament according to which only sons can inherit the father’s estate and the first born son receives a double portion. And that daughters become entitled to inheritance only if the person died had no son with the promise that they will be married to men from their fathers tribe. However, the provisions regulating the rules of distribution of shares for Christians have been declared to be in consonance with the scriptural spirit not only by the Christian clergy and Christian leadership but by the Supreme Court of Pakistan in its judgment in the case of Ms. Inayat Bibi vs Issac Nazirullah (PLD 1992 /355) by allowing the Christian females to inherit in presence of male heirs under the said provisions of the Succession Act, 1925 and made the law very clear by observing that the Succession Act did alter the customary succession in so far as Christians are concerned and also for them it abolished the customary law in Punjab, therefore, the same would not be applicable.

In a consultation on the Christian law of Inheritance organized by Idara Amn-o-Insaf the Christian clergy and other speakers of the consultation were of the view that the Succession Act was enforced by the Britishers who themselves were supposedly Christians therefore, there is nothing in the law which is against

49

the Holy Bible. However, there is need to aware the Christian community especially the Christian women of there right of equal share in inheritance with male relations.

In view of the above the law of inheritance, which is based on gender equality, is not against the teachings of the Holy Bible and need no amendment especially in this era when a worldwide campaign is going on against gender discrimination. However, the following definition of the term “Pakistani Christian” in clause (d) of section 2 of the Succession Act, 1925 is discriminatory and offending for the Christian community.

Section 2(d).- Pakistani Christian means a citizen of Pakistan who is, or in good faith claims to be, of un-mixed Asiatic descent and who professes any form of the Christian religion.

In spite of the fact that the above mentioned provision smacks of prejudices of the colonial rulers towards the people of the land, however, it was to some extent relevant in the colonial era when white Christians were also domiciled in this part of the world and the native Christians could claim to be of unmixed Asiatic descent. The said provision in the existing form seems to be a memory of the colonial past, which has been declared by the Christian community also as discriminatory and offending. It is therefore, proposed that the words in the said clause (d) “who is, or in good faith claims to be, of un-mixed Asiatic descent and” may be deleted. The amended provision will be as under: -

Section 2(d).- Pakistani Christian means a citizen of Pakistan who professes any form of the Christian religion.

A comparative table of existing provision and proposed amendment is as under:

Existing provision Proposed Section 2(d).- Pakistani Christian means a citizen of Pakistan who is, or in good faith claims to be, of un-mixed Asiatic descent and who professes any form of the Christian religion.

Section 2(d).- Pakistani Christian means a citizen of Pakistan, who professes any form of the Christian religion.

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A BILL

further to amend the Succession Act 1925

WHEREAS it is expedient to amend the Succession Act 1925 (Act XXXIX of1925) for

the purposes hereinafter appearing;

It is hereby enacted as follows:

1. Short title and commencement.- (1) This Act may be called the Succession

(Amendment) Act 2006.

(2) It shall come into force at once.

2. Amendment of section 2, Act XXXIX of 1925.- In the said Act, in section

2, clause (d) the words" who is, or in good faith claims to be, of un-mixed

Asiatic descent and" shall be omitted.

Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the pre-independence reference contained in the Succession Act 1925 about the Christians of unmixed Asiatic descent which class no more exist at the present in Pakistan and all the Christians in the country are native Pakistani Christians therefore, reference of the pre-partition period requires to be deleted from Section 2 of the Succession Act 1925. The Commission agreed with the proposal to delete the above reference from Section 2 (d) of the Succession Act 1925.

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Amendment in Column 7 of Second Schedule of the Code of Criminal Procedure, 1898 against Section 337A (v) of the Pakistan Penal Code

Report No. 97

( - )

52

Amendment in Column 7 of Schedule II of the Code of Criminal Procedure 1898 against Section 337A (v) of the Pakistan Penal Code.

The punishment of hurt of Shajjah-i-Ammah provided in Clause (v) of Section 337A of the Pakistan Penal Code, along with others, was prescribed as imprisonment of either description for a term which may extend to 10 years as Tazir by the Criminal Law (Second Amendment) Ordinance 1990 commonly known Qasis and Diyat Ordinance and the same was mentioned in Column 7 of Schedule II of the Cr.P.C against the said Section. On re-promulgation of the Ordinance as Ordinance No. XVII of 1992 the punishment of ten years imprisonment provided in Section 337-A (V) of the PPC was mentioned as fourteen years in Column 7 of Schedule II of the Cr.P.C against the entry of the said section. The Ordinance was re-promulgated a number of times later on till it became an Act (Act No. II of 1997) of the Parliament but the disparity amongst two provisions of the Codes is not removed and it still exists even after passing of a long period till it has been made an Act of the Parliament. The Clause (v) of section 337A of the PPC and entry in Column 7 of Schedule II of Cr.P.C against it read as follows:- Section 337A. “Punishment of Shajjah. – Whoever, by doing any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes- (iv) ……………..

(v) Shajjah-i-ammah to any person, shall be liable to arsh which shall be one-half of Diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as Tazir; and

(vi) ……………. Schedule II Cr.P.C 1898

1 2 3 4 5 6 7 8

337A (v) Shajjah-i-ammah

Arsh, and imprisonment of either description for fourteen years.

Court of Session

or Magistrate of the 1st

Class. Clause (v) of Section 337A PPC provides punishment of imprisonment of ten years on causing Shajjah-i-ammah to any person and Clause (vi) of section 337A PPC provides punishment of imprisonment for fourteen years for causing Shajjah-i-damighah. It seems there has been occurred some typographical mistake while mentioning punishment of Clause (v) of the said section in Column 7, of Schedule II of the Cr.P.C in Ordinance No. XVII of 1992 which could not be corrected in the Ordinance issued later on and even in the Act passed in 1997. It is therefore, proposed that in Column 7 of Schedule II of the Cr.P.C the punishment of fourteen years mentioned against section 337A of the PPC may be substituted by ten years. A bill to amend the Schedule II of the Cr.P.C follows.

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A

Bill further to amend the Code of Criminal Procedure, 1898. WHEREAS it is expedient to amend the Code of Criminal Procedure, for the purpose

hereinafter appearing;

It is herby enacted as follows:- 1. Short title and commencement. – (1) This Act may be called the Code of

Criminal Procedure (Amendment) Act, 2007.

(2) It shall come into force at once. 2. Amendment of Schedule II, Act V of 1898.- In the Code of Criminal Procedure,

1898 (Act V of 1898), in Schedule II, against entries relating to section 337A, clause (v)

in Column 7, for the word “fourteen” the word “ten” shall be substituted.

Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission took note of the punishment of imprisonment of ten years provided in Section 337A (v) of the Pakistan Penal Code 1860 which is reflected incorrectly in column 7 of Schedule II of the Criminal Procedure Code 1898 as 14 years. The Commission is of the view that the discrepancy in the Criminal Procedure Code seems to be a clerical/typographical mistake. It therefore approved that reference to punishment in Column 7 of Schedule II of the Cr.P.C may be corrected in accordance with the punishment provided in Section 337A (v) of the Pakistan Penal Code by substituting the words ‘ten years’ for the words “fourteen years”.

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Amendment in Section 95 of the Code of Civil Procedure, 1908

Report No. 98

( - )

55

Amendment in Section 95 of the Code of Civil Procedure, 1908 Compensation for obtaining arrest, attachment or injunction on insufficient grounds provided under Section 95 of CPC was enhanced from one thousand rupees to ten thousand rupees by Civil Law Reform Act XIV of 1994 on the recommendation of Commission constituted for reformation of Civil Laws: Section 95 reads as follows:-

Section 95.- Compensation for obtaining arrest, attachment or injunction on insufficient 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 probable ground for instituting the same.

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 ten thousand rupees, as it deems a reasonable compensation to the defendant for the expense or 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.

Compensation for false frivolous or vexatious accusation granted under section 95 of the Code precludes a separate suit. The section provides for compensation to the defendant in the following situation.

(1) (i) Where an arrest or attachment before judgment has been effected or a temporary injunction has been granted under Orders XXXVIII and XXXIX of CPC and

(ii) Such arrest, attachment or injunction was applied for on insufficient

grounds. (2) (i) Where an arrest or attachment before judgment has been

effected a temporary injunction has been granted; (ii) the plaintiff fails in the suit; and

(iii) there was no reasonable or probable ground for instituting the suit.

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Due to increasing of inflation rate the amount of compensation is inadequate and needs to be reasonably enhanced with a view to discourage the tendency of false frivolous or vexatious accusation by obtaining arrest or seeking benefit from Court by obtaining injunction on insufficient grounds. It is proposed to enhance the compensation amount from ten thousand rupees to twenty thousand rupees. Comparative table containing the existing provision and the proposed amendment is as under:-

Comparative Table

Existing Provision Proposed Provision Section 95.- Compensation for obtaining arrest, attachment or injunction on insufficient 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 of probable ground for instituting the same. 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 ten thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him:

Provided that a Court shall not award, under this section, an amount exceeding the limit 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.

Section 95.- Compensation for obtaining arrest, attachment or injunction on insufficient 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 of probable ground for instituting the same. 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 twenty thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him:

Provided that a Court shall not award, under this section, an amount exceeding the limit 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.

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Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the amount of compensation provided in Section 95 of the Code of Civil Procedure to be awarded to a party on the arrest, attachment or injunction obtained by the other party on insufficient grounds or on failure of the suit on appearing to the Court having no reasonable ground for initiating the action of filing of suit. The Secretary, Ministry of Law & Justice informed that a proposal of enhancement of amount of compensation has already been in the Law Reform Bill pending with the Mediation Committee in the Parliament. The Chief Justice, Federal Shariat Court observed that section 95 of the CPC bars any civil suit for the purpose. The Chairman observed that it only bars the claim in the form of compensation and not the claim for damages. The Chief Justice, Peshawar High Court observed that compensation should be awarded on application of the defendant. The Chief Justice, High Court of Sindh observed that the existing power of awarding compensation is also subject to the condition of not exceeding pecuniary jurisdiction of the Court. However, the Commission, in view of proposal being taken care of in the Law Reforms Bill in the Parliament, desired that the Secretary, Ministry of Law, Justice and Human Rights may take care of the proposal. On the pointation of Chief Justice, Peshawar High Court, the Commission recommended suitable amendment to section 298 of the PPC for substituting the word “wounding” with the word “hurting”.

58

Amendment in Section 35A of the Code of Civil Procedure, 1908

Report No. 99

( - )

59

Amendment in section 35 A of the Code of Civil Procedure, 1908

A trend has developed that people have started filing false or vexatious suits/applications in the Courts with the object to get some benefits by exploitations of defendants or to scandalize, malign/blackmail the Government Authorities and general public. Such-like suits/applications are resulting a heavy pendency of cases in subordinate courts as well as in High Courts and Supreme Court. Under this situation, there is a dire need to discourage the tendency to resort to litigations based upon false or vexatious suits or applications just to get undue benefits. That such suits/applications may entail liability to pay special costs besides possibility of prosecution, for abuse of the process of the Court.

Section 35A of CPC provides the prescribes compensatory cost in respect of false or vexatious claims or defences. The section prescribes the maximum limit of the cost to be twenty-five thousand rupees. Section 35A of CPC reads as follows:-

Sec. 35-A.- Compensatory cost in respect of false or vexatious claims or defences.- (1) If in any suit or other proceeding, (including an execution proceeding), not being an appeal, any party objects to the claim or denfence 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, 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 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 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 or damages or compensation in respect of such claim or defence.

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The main object of the section is to check the false or vexatious litigation, on account of which, not only the precious time and energy of the Courts are being wasted but also the public is dragged in the Courts, where they have to suffer for years together, without any justification. The section compensates the aggrieved party who is successful in assertion/defence of his rights and deter to put unnecessary litigation and harassment by filing of false or frivolous suits/applications. Section 35 A debar the aggrieved parties to claim relief at the appellate stage. Rule 33, of Order XLI define the power of Court of Appeal which reads as follows:-

Rule 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 these powers 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:

Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

Rule 33, Order XLI of the Code confers very wide discretion on the Appellate Court but this power has to be exercised firstly, when a party to the appeal is entitled to it. In other words, when there is a party who is dissatisfied or aggrieved by the order under appeal though it may not have appealed therefrom, and secondly- (i) to avoid contradictory and inconsistent decision on the same question in the same suit. In other words to obviate coming into existence of impossible, contradictory or unworkable orders of decisions;

(iii) to adjust the rights of the parties in accordance with justice, equity and good conscience;

(iii) to do complete justice between the parties;

the High Court has ample jurisdiction to impose costs upon any party who approaches the Courts with ulterior motives or conceal material facts or public functionaries who passed the orders against the citizens in violation of the procedure prescribed under the law. The Lahore High Court in its judgment in the case of Muhammad Zia v/s Ch. Nazir (2002 CLC 59 Lahore) held that :-

“The provisions of Civil Procedure Code are applicable to the writ jurisdiction, yet under Article 199 of the Constitution, which is an extraordinary Constitutional Jurisdiction, the Court had ample power to do justice and to prevent the misuse or abuse of authority by the public functionary. Section 35A, C.P.C. in no way limits the Constitutional jurisdiction of the Court”

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As such, to meet the ends of justice as well as to achieve the object the High Court of Sindh in a writ petition imposed special costs to the petitioners. The Court in its judgment (PLD 2001 Kar 442) held that:- “ Appellate Court is empowered to do complete justice and can pass any decree or order and can interfere when it becomes necessary to adjust or readjust the right and interest of the parties or for settlement of mutual rights and obligations of the parties in accordance with the justice, equity and good conscience.” The Supreme Court in its judgment (1995 SCMR 435) also held that:-

“Rule 6 of Order XXXIII of the Supreme Court Rules, 1980, provides that nothing in the Rules would be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary in the ends of justice or to prevent the abuse of the process of the Court. To the same effect are the powers vested in an appellate Court under Order XLI, Rule 33 as well as under section 151 of the Code. Supreme Court could not refuse relief to the appellant on a mere technical ground, having regard to the facts and circumstances of the case.” The compensatory cost provided under Section 35 A was enhanced in 1994 by the Civil Law Reforms Act, 1994 (XIV of 1994), on the recommendation of the Commission constituted for reform of Civil Laws. Due to increasing the tendency of false and vexatious litigations, and prevailing rate of inflation the cost as prescribed is inadequate and needs to be reasonably enhanced to discourage false or vexatious litigations.

It is pointed out that in the proviso to sub-section (2) of Section 35 A. The pecuniary limits of the jurisdiction of Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, is defined. The Act of 1887 has been repealed by section 42 of the Small Claims and Minors Offences Courts Ordinance 2002, which also provides that the said Ordinance shall have overriding effect over other laws. The pecuniary limits of the above mentioned Courts as referred to in the proviso require to be omitted, because the provisions of CPC are not applicable of the Ordinance, 2002.. It is therefore suggested that:-

i. The limit prescribed in sub-section (2) of Section 35 A CPC may be enhanced from twenty-five thousand rupees to fifty thousand rupees.

ii. The first proviso to sub-section (2) of Section 35 A may be omitted;

iii. In the second proviso to Section 35 A the commas and word “,further,” may be omitted;

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COMPARATIVE CHART Existing Provision Proposed Provisions

Sec. 35A.- Compensatory cost in respect of false or vexatious claims or defences.- (1) If in any suit or other proceeding, (including an execution proceeding), not being an appeal, any party objects to the claim or denfence 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, 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 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 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 Cause 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

No change

(2) No Court shall make any such order for the payment of an amount exceeding fifty thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less: Omitted.

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and fifty five 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 or damages or compensation in respect of such claim or defence.

Provided that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.

No change

No change

Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the proposal of enhancement of the amount of compensatory cost in respect of false or frivolous claims under Section 35A of the Code of Civil Procedure in view of decrease in value of money by inflation. The Commission by agreeing to the proposal recommended the enhancement of cost to Rs.50000/- as against the present amount of Rs.25000/-. The Commission also considered the omission of first proviso of the said section referring the Court of Small Causes under the Provincial Small Cause Courts Act 1887 which has now been repealed by Small Claims and Minor Offences Ordinance 2002, and recommended the same along with omission of word further in the second proviso to the said section and renumbering it as first proviso.

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Amendment in Section 516A of the Code of Criminal Procedure, 1898

Report No. 100

( - )

65

AMENDMENT IN SECTION 516A OF THE CODE OF CRIMINAL PROCEDURE, 1898.

The Code of Criminal Procedure, 1898 (Act V of 1898), was made on the 2nd March, 1898, to consolidate and amend the law relating to the Criminal Procedure. 2. Section 516A of the Code of Criminal Procedure, 1898 (Act V of 1898), provides for the provisions relating to order for custody and disposal of property pending trial in certain cases, as under:- Section 516A:

“516A. 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 produced 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 disposed of:

Provided that, if the property consists of explosive substances, 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 authorized dealer in, such substances:

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 proceedings in relation to such offence before any authority or Court.”

3. In the second proviso to section 516A ibid, a reference has been made to the Dangerous Drugs Act, 1930 (II of 1930). The said Act stands repealed vide sub-section (1) of section 78 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), as under:-

66

78. Repeal and saving.- (1) The Opium Act, 1857, the Opium Act, 1878, and the Dangerous Drugs Act, 1930, and the Control of Narcotic Substances Ordinance, 1997, are hereby repealed.

4. From perusal of the repealed Dangerous Drugs Act, 1930, and the Control of Narcotic Substances Act, 1997, it transpires that the subject matter and scope of the repealed Dangerous Drugs Act, 1930, is now covered under the Control of Narcotic Substances Act, 1997.

Conclusion: In view of the foregoing, it is obvious that in the second proviso to section 516A the reference to the repealed Dangerous Drugs Act, 1930, has become obsolete and it shall be more appropriate to make reference to the Control of Narcotic Substances Act, 1997, instead.

Recommendation: It is one of the functions of the Law and Justice Commission of Pakistan under clause (v) of the Law and Justice Commission of Pakistan Ordinance, 1979 (XIV of 1979), to make recommendation for repealing obsolete or unnecessary provisions in the laws. Accordingly, it is suggested that the Commission may make recommendation to the Federal Government that in the second proviso to section 516A of the Code of Criminal Procedure, 1898, the reference to the Dangerous Drugs Act, 1930 (II of 1930), comprise of an obsolete provision of law.

Legislative proposal: In the light of the foregoing discussion, it is suggested that in the second proviso to section 516A of the Code of Criminal Procedure, 1898, for the words, comma, figures, brackets and letters “Dangerous Drugs Act, 1930 (II of 1930),” the words, comma, figures, brackets and letters “Control of Narcotic Substances Act, 1997 (XXV of 1997)” shall be substituted.

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Comparative Table Existing provisions. Amended provisions.

516A. 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 produced 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 disposed of:

Provided that, if the property consists of explosive substances, 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 authorized dealer in, such substances:

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 proceedings in relation to such offence before any authority or Court.

No Change No Change

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 Control of Narcotic Substances Act, 1997 (XXV of 1997), 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 proceedings in relation to such offence before any authority or Court.

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Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered the amendment proposed in section 516A of the Code of Criminal Procedure proposing substitution of reference of the Dangerous Drugs Act 1930 on its having been repealed by the Control of Narcotics Substance Act 1997. As being a consequential amendment, the Commission approved the substitution of the words “Control of Narcotics Substance Act, 1997 for the words “Dangerous Drugs Act 1930” in Section 516A of the Cr.P.C.

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Amendment in the Child Marriage Restraint Act, 1929

Report No. 101

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AMENDMENT IN THE CHILD MARRIAGE RESTRAINT ACT, 1929

Justice (R) Mrs. Nasira Iqbal, Member, Law and Justice Commission of Pakistan,

has desired in her letter dated 23-11-2006 that the Commission may examine certain laws including the Child Marriage Restraint Act, 1929. She has proposed that the punishment provided in the law for the violation of its provisions may be enhanced for making the law more effective. The Child Marriage Restraint Act, 1929, hereinafter referred to as the said Act, is aimed to restrain the solemnization of child marriages. The said Act does not effect the validity of such marriages but imposes certain penalties on the person who contracts such marriage, or performs, conducts or directs any such marriage, or who having the charge of the minor as parent or guardian or any other capacity, does any act to promote any such marriage, or permits it to be solemnized, or negligently fails to prevent it from being solemnized. Inspite of the restraint of child marriages under the said Act by inflicting punishment on the persons responsible for such marriage, there are persistent complaints about the solemnization of child marriages across the country, especially in the rural areas, which indicates at some flaws in the law or its implementation. Therefore, the law needs to be reformed, especially the punishment of fine prescribed for violation of the provisions of the said Act needs to be enhanced, as also proposed by the learned member, with taking appropriate steps for the proper implementation of the said Act. Under section 4 of the said Act, any male person above 18 years of age, who contracts a child marriage, is punishable with imprisonment up to one month, or fine up to one thousand rupees, or with both. The same punishment is prescribed under section 5 of the said Act, for the person who performs, conducts, or directs any such marriage. The same punishment is also prescribed under section 6 of the said Act, for any person having charge of the minor, whether as parent or guardian or any other capacity, who does any act to promote the marriage, or permits it to be solemnized, or negligently fails to prevent it from being solemnized. Similarly, under sub-section (5) of section 12 of the said Act, the person who disobeys an injunction issued by the court under sub-section (1) of section 12 for prohibiting such marriage is punishable with imprisonment up to three months, or with fine up to one thousand rupees, or with both. The Law and Justice Commission of Pakistan has already proposed for the enhancement of punishment of fine provided in various Federal / Provincial laws as, due to devaluation of currency with the passage of time, they have lost its deterrence. The Commission has approved uniform slabs of enhancement of fine for the offences in statutes of different periods since the year 1850. As per the formula approved by the Commission four fold increase in the amount of fine provided in the aforementioned provisions of the said Act, has already been proposed by the Commission. However, the said punishment need to be further enhanced for making the same more deterrent.

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It is, therefore, proposed that the punishment of imprisonment mentioned in sections 4, 5 and 6 ibid may be enhanced from one month up to three months and the punishment of imprisonment mentioned in sub-section (5) of section 12 of the said Act, from three months up to six months, whereas the punishment of fine in the above mentioned sections may be enhanced from one thousand rupees up to forty-five thousand rupees. Furthermore, for the effective implementation of the law, certain administrative measures have already been proposed in a working paper under the title “Effective Implementation of the Child Marriage Restraint Act, 1929” for consideration of the Commission, which need to be implemented. The measures proposed are as under:-

1. To make the general public aware and conscious about restraint of child marriage, the law may be publicized in the print and electronic media after translating it in regional languages.

2. Under the law cognizance of any such offence can be taken by the Court only on a complaint by the Union Council of the area, or by any such authority, prescribed by the Provincial Government. Therefore, instructions may be issued to the Provincial Government, to the Union Councils, or the authority, where there is no Union Council, to discharge their lawful responsibility by making complaints to the court.

3. The Nikah registrars may be directed to verify the prescribed marriageable age of the parties contracting marriage from any of the following documents of the parties before solemnizing Nikah.

(i) school leaving certificate; (ii) identity card; (iii) passport/Nadra Form B; or (iv) birth certificate.

4. The provisions of section 12 (Power to issue injunction prohibiting marriage in contravention of this Act) be made effective and practicable by issuing injunction by the Court on complaint of the Union Council or receiving information otherwise.

Comparative table for amendment in sections 4, 5, 6 and 12 of the Child Marriage Restraint Act, 1929, follows.

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COMPARATIVE TABLE Existing Provisions Proposed Provisions

Section4. Punishment for male adult above twenty-one years of age marrying a child. – Whoever. Being a male above eighteen years of age, contracts a child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both. Section 5. Punishment for solemnizing a child marriage.- Whoever, performs conducts or direct any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage. Section 6 (1). Punishment for parent or guardian concerned in a child marriage. – Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permit it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend one thousand rupees, or with both : Provided that no woman shall be punishable with imprisonment. (2). ……………… Section 12. Power to issue injunction prohibiting marriage in contravention of this Act. – (1…4) ………………

Section4. Punishment for male adult above twenty-one years of age marrying a child. – Whoever. Being a male above eighteen years of age, contracts a child marriage shall be punishable with simple imprisonment which may extend to three months, or with fine which may extend to forty five thousand rupees, or with both. Section 5. Punishment for solemnizing a child marriage.- Whoever, performs conducts or direct any child marriage shall be punishable with simple imprisonment which may extend to three months, or with fine which may extend to forty five thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage. Section 6 (1). Punishment for parent or guardian concerned in a child marriage. – Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permit it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to three months, or with fine which may extend to forty five thousand rupees, or with both : Provided that no woman shall be punishable with imprisonment.

(2). ……………… Section 12. Power to issue injunction prohibiting marriage in contravention of this Act. – (1…4) ………………

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(5) Whoever, knowing that an injunction has been issued against him under sub-section (1) of this section disobeys such injunction shall be punished with imprisonment of either description of a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both : Provided that no woman shall be punishable with imprisonment.

(5) Whoever, knowing that an injunction has been issued against him under sub-section (1) of this section disobeys such injunction shall be punished with imprisonment of either description of a term which may extend to six months, or with fine which may extend to forty five thousand rupees, or with both : Provided that no woman shall be punishable with imprisonment.

Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:-

The Commission considered the proposals of reform of Child Marriage Restraint Act, 1929 and observed that the existing punishment of imprisonment as well as of fine in Sections 4, 5 and 6 of the Act may be made more deterrent and a female guardian of minor child may also be made equally punishable, if she performs marriage of a minor child in her custody. The Commission therefore, approved that in Section 4, 5 and 6 (1) of the Act, the punishment of imprisonment may be enhanced from one month to three months and the fine from Rs. 1000/- to Rs. 25000/-. The proviso to Section 6 (1) be omitted. Sub-section (2) of Section 6 be suitable amended to remove the bar and enable any person eligible to file a complaint of the offence instead of taking cognizance by the court on complaint of Union Council or of an authority prescribed by the Provincial Government. The Commission also recommended enhancement of punishment of imprisonment from six months to one year and the fine from Rs.1000/- to Rs. 25000/- provided in subsection (5) of Section 6 of the Act on disobeying injunction issued by the court. The proviso to the Section 6 (5) exempting a woman from the punishment of imprisonment was also recommended to be omitted.

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Amendment in the Code of Criminal Procedure 1898 for Substitution / Deletion of Obsolete Provisions

Report No. 102

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AMENDMENT IN THE CODE OF CRIMINAL PROCEDURE 1898 FOR SUBSTITUTION / DELETION OF OBSOLETE PROVISIONS.

The Code of Criminal Procedure, 1898, has remained constantly under revision and amendments have been made in the said Code from time to time for making it compatible with the changing needs of the Society for the proper dispensation of criminal justice. However, sections 94, 99A, 108, 172, 244A, 265J, 471, 507 and 533 of the said Code still contain obsolete provisions which also need to be properly amended.

In sections 94,172, 244A, 265J, 507 and 533 reference has been made to the Evidence Act, 1872, or certain provisions thereof. The said Act has been repealed vide section 166 of the Qanun-e-Shahadat Order, 1984 and replaced with the said Order. Most of the provisions of the Evidence Act, 1872, which were not repugnant to the injunctions of Islam, were retained in the Qanun-e-Shahadat Order, 1984, in a different arrangement / order, so the provisions of the Evidence Act, 1872, referred to in some of the above mentioned sections of the Code of Criminal Procedure, 1898, now find place in a different order in the Qanun-e-Shahadat Order, 1984. In section 94 of the Code of Criminal Procedure, 1898, reference has been made to sections 123 and 124 of the Evidence Act, 1872, which now find place in sections 6 and 7 of the Qanun-e-Shahadat Order, 1984. Similarly in section 172 of the Code of Criminal Procedure, 1898, reference has been made to sections 161 and 145 of the Evidence Act, 1872, which now find place in sections 157 and 140 of the Qanun-e-Shahadat Order, 1984, respectively. Likewise, in section 507 of the Code of Criminal Procedure, 1898, reference has been made to section 33 of the Evidence Act, 1872, which now find place in section 47 of the Qanun-e-Shahadat Order, 1984. Similarly section 91 of the Evidence Act, 1872, has been referred to in section 533 of the Code of Criminal Procedure, 1898, which now find place in section 102 of the said Order. All the above mentioned sections of the Evidence Act, 1872, need to be replaced with the relevant sections of the Qanun-e-Shahadat Order, 1984, referred to above. The words “Evidence Act, 1872” referred to in sections 244A and 265J of the Code of Criminal Procedure, 1898, also need to be replaced with the words “Qanun-e-Shahadat Order, 1984”. In sections 99A and 108 of the Code of Criminal Procedure, 1898, reference has been made to the Press and Publications Ordinance, 1963, or some provisions thereof. In clause (b) of sub-section (1) of section 99A of the Code of Criminal Procedure, 1898, reference has been made to clause (jj) of sub-section (1) of section 24 of the said Ordinance. The said Ordinance has been repealed vide section 45 of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002. However, no alternate provision is available in the new Ordinance to replace clause (jj) of sub-section (1) of section 24 of the Press and Publications Ordinance, 1963. So the words “the Press and Publications Ordinance 1963” in clause (a) of sub-section (1) of section 99A and section 108 of the Code of Criminal Procedure, 1898, need to be replaced with the

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words “the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002” and the words in clause (b) of sub-section (1) of section 99A of the Code of Criminal Procedure, 1898, “or any matter of the nature referred to in clause (jj) of sub-section (1) of section 24 of the West Pakistan Press and Publications Ordinance, 1963” need to be omitted. Similarly, in section 471 of the Code of Criminal Procedure, 1898, reference has been made to the Lunacy Act, 1913. The said Act has been repealed vide section 61 of the Mental Health Ordinance, 2001. So the words “the Lunacy Act, 1913” also need to be replaced with the words “the Mental Health Ordinance, 2001”. It is one of the functions of the Law and Justice Commission of Pakistan under clause (v) of the Law and Justice Commission Ordinance, 1979, to repeal obsolete or unnecessary provisions in the laws. It is therefore, proposed that;

1) Section 123 and 124 of the Evidence Act, 1872, referred to in section 94 of

the Code of Criminal Procedure, 1898, section 161 and 145 of the Evidence Act, 1872, referred to in section 172 of the Code of Criminal Procedure, 1898, section 33 of the Evidence Act, 1872, referred to in section 507 of the Code of Criminal Procedure, 1898, and section 91 of the Evidence Act, 1872, referred to in section 533 of the Code of Criminal Procedure, 1898, may be replaced, respectively, with sections 6, 7, 155, 140, 147 and 102 of the Qanun-e-Shahadat Order, 1984, in its proper places.

2) In sections 244A and 265J of the Code of Criminal Procedure, 1898, the

words “the Evidence Act, 1872” may be replaced with the words “the Qanun-e-Shahadat Order, 1984”.

3) The words “the Press and Publications Ordinance, 1963” referred to in

clause (a) of sub-section (1) of section 99A and 108 of the Code of Criminal Procedure, 1898, may be replaced with the words “the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, and the words in clause (b) of sub-section (1) of section 99A of the Code of Criminal Procedure, 1898 “or any matter of the nature referred to in clause (jj) of sub-section (1) of section 24 of the West Pakistan Press and Publications Ordinance, 1963” may be omitted.

4) The words “the Lunacy Act, 1913” referred to in section 471 of the Code of

Criminal Procedure, 1898, may be replaced with the words “the Mental Health Ordinance, 2001”.

Comparative table is enclosed.

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COMPARATIVE TABLE EXISTING PROVISIONS PROPOSED PROVISIONS

Section 94. – Summons to produce document or other thing. (1)….. (2)…….. (3) Nothing in this section shall be deemed to affect the Evidence Act, 1872, section 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.

Section 99A. – Power to declare certain publications forfeited and to issue search warrants for the same. (a) any newspaper, or book as defined in the West Pakistan Press and Publications Ordinance, 1963, or any other law relating to press and publication for the time being in force, or

(b) any document, wherever printed, appears to the Provincial Government to contain any treasonable or seditions matter or any matter which is prejudicial to national integration or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of Pakistan or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, or any matter of the nature referred in clause (jj) of sub-section (1) of section 24 of the West Pakistan Press and Publications Ordinance, 1963, that is to say, any matter the publication of which is punishable under section 123A or section 124A or section 153A or section 295A or section 298A or section 298B or section 298C of the Pakistan Penal Code, the Provincial Government may, by notification in the official

Section 94. – Summons to produce document or other thing. (1)….. (2)…….. (3) Nothing in this section shall be deemed to affect the Qanun-e-Shahadat Order 1984, Article 6 and 7, 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. Section 99A. – Power to declare certain publications forfeited and to issue search warrants for the same. (a) any newspaper, or book as defined in the Press, Newspapers, News Agencies and Books Registration Ordinance 2002 or any other law relating to press and publication for the time being in force, or

(b) any document, wherever printed, appears to the Provincial Government to contain any treasonable or seditions matter or any matter which is prejudicial to national integration or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of Pakistan or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under section 123A or section 124A or section 153A or section 295A or section 298A or section 298B or section 298C of the Pakistan Penal Code, the Provincial Government may, by notification in the official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document

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Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police-officer may seize the same wherever found in Pakistan an 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 or may be or may be reasonably suspected to be. Section 108. – Security for good behaviour from persons disseminating seditious matter. (a)………. (b)……… (c)………. No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with the provisions of the West Pakistan Press and Publications Ordinance, 1963, or any other law relating to press and publications for the time being in force with reference to any matters contained in such publication except by the order or under the authority of the Provincial Government or some officer empowered by the Provincial Government in this behalf. Section 172. – Diary of proceedings in investigation. (1)….. …….. (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

to be forfeited to Government, and thereupon any police-officer may seize the same wherever found in Pakistan an 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 or may be or may be reasonably suspected to be.

Section 108. – Security for good behaviour from persons disseminating seditious matter. (a)………. (b)……… (c)………. No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with the provisions of the Press, Newspapers, News Agencies and Books Registration Ordinance 2002 or any other law relating to press and publications for the time being in force with reference to any matters contained in such publication except by the order or under the authority of the Provincial Government or some officer empowered by the Provincial Government in this behalf. Section 172. – Diary of proceedings in investigation. (1)….. …….. (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 see them

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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. Section 244A. – Statement made under section 164. The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the direction if the Court, if such witness is produced and examined, be treated as evidence in the case for all purpose subject to the provisions of the Evidence Act, 1872. Section 265J. – Statement under section 164 admissible. The statement of a witness duly recorded under section 164, of 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 direction if the Court, if such witness is produced and examined, be treated as evidence in the case for all purpose subject to the provisions of the Evidence Act, 1872.

Section 471. – Person acquitted on such ground to be detained in safe custody. (1) Wherever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence, order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action

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 Qanun-e- Shahadat Order 1984, Article 155 or Article 140, as the case may be, shall apply.

Section 244A. – Statement made under section 164. The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the direction if the Court, if such witness is produced and examined, be treated as evidence in the case for all purpose subject to the provisions of the Qanun -e-Shahadat Order 1984. Section 265J. – Statement under section 164 admissible. The statement of a witness duly recorded under section 164, of 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 direction if the Court, if such witness is produced and examined, be treated as evidence in the case for all purpose subject to the provisions of the Qanun-e-Shahadat Order 1984.

Section 471. – Person acquitted on such ground to be detained in safe custody. (1) Wherever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence, order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action taken to the Provincial Government.

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taken to the Provincial Government.

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the Provincial Government may have made under the Lunacy Act, 1912. (2) ……………

Section 507. – Return of commission. (1)………….. (2) Any deposition so taken, if it satisfies the conditions prescribed by section 33 of the Evidence Act, 1872, may also be received in evidence at any subsequent stage of the case before another Court. Section 533. – Non compliance with provisions of section 164 or 364. (1) If any Court, before which a confessions 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, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.

(2) …………..

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 Mental Health Ordinance 2001. (2) ……………

Section 507. – Return of commission. (1)………….. (2) Any deposition so taken, if it satisfies the conditions prescribed by Article 47 of the Qanun-e-Shahadat Order 1984, may also be received in evidence at any subsequent stage of the case before another Court. Section 533. – Non compliance with provisions of section 164 or 364. (1) If any Court, before which a confessions 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 Qanun-e-Shahadat Order 1984, section 102, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.

(2) …………..

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Commission’s deliberations The working paper was considered by the Commission in its meeting held on 27.7.2007 and the following are the deliberations:- The Commission considered reference of the “Evidence Act 1872 occurring in sections 94, 172, 244A, 265J, 507 and 533 of the Criminal Procedure Code which have been repealed by the Qanoon-e-Shahadat Order 1984 and recommended that the Qanoon-e-Shahadat Order with its relevant Articles may be substituted for the corresponding sections of the Evidence Act. The Commission also recommended omission of reference of the repealed West Pakistan Press and Publication Ordinance 1963 and its clause (JJ) in Section 99-A Cr.P.C wherever occurring and substituted by the Newspaper, News Agency and Books Registration Ordinance 2002. The Commission approved the omission of proviso to Section 471 Cr. PC providing for detention of lunatic in the asylum established under the Lunacy Act 1912 on repeal of the Act by the Mental Health Ordinance 2001 not providing for any such asylum.