THE CRIMINAL LAW (SPECIAL PROVISIONS)

ORDINANCE, 1968. 

(WEST PAKISTAN ORDINANCE NO. II OF 1968). 
                                                                       

                                                                                                            [16^th January, 1968]

CONTENTS 

PREAMBLE

SECTIONS

1.            Short title and extent.

2.            Definitions.

3.            Trial of scheduled offences.

4.            Cognizance of scheduled offences.

5.            Question of guilt or innocence to be referred to Tribunal.

6.            Constitution of Tribunal.

7.            Reference of question to a new Tribunal in certain cases.

8.            Quorum.

9.            Procedure before the Tribunal.

10.        Tribunal to have certain powers of a Court.

11.        Action upon the report of the Tribunal.

12.        Punishment.

13.        Compensation.

14.        Women punishable for adultery.

15.        Scheduled offences to be cognizable.

16.        Bail.

17.        Security for keeping the peace.

18.        Power to demand security from male adult members of families.

19.        Procedure for enquiry.

SECTIONS.

20.        Breach of bond.

21.        Imprisonment in default of security.

22.        Collective fine.

23.        Appeal.

24.        Revision.

25.        Execution of sentence.

26.        Suspension, remission, etc., of sentences.

27.        Appearance of legal practitioners.

28.        Jurisdiction of Courts barred.

29.        Indemnity.

30.        Delegation.

31.        Power to make rules.

32.        Pending proceedings.

33.        Repeal.

SCHEDULE

THE CRIMINAL LAW (SPECIAL PROVISIONS) 

ORDINANCE, 1968. 

WEST PAKISTAN ORDINANCE NO. II OF 1968. 
                                                                                                           

                                                                                                            [16^th January, 1968] 

AN 
ORDINANCE

            to make special provision for trial of certain offences in certain areas of West Pakistan.

            AND WHEREAS the Provincial Assembly of West Pakistan is not in session and the Governor of West Pakistan is satisfied that circumstances exist which render immediate legislation necessary; 

            NOW, THEREFORE, in exercise of the powers conferred on him by clause (1) of Article 79 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance:—

            (2)        It extends to the areas specified in the Schedule. 

            [1][(3)     Government may, by notification in the official Gazette, direct that this Ordinance shall, on such date as may be specified in the notification, cease to be in force in any area in which it is in force and, upon its so ceasing to be in force in any area, shall be deemed to have been repealed.]

(a)   "Commissioner" means the Chief Officer-in-charge of the    revenue administration of a division, and includes any other         officer who is specially empowered by Government to exercise           the powers and functions of a Commissioner under this        Ordinance;

(b)               "Deputy Commissioner" includes any officer exercising or   performing any power or function of a Deputy Commissioner   under this Ordinance;

(c)                "Government" means the [2][Provincial Government].

(d)               "party" means the accused and the person or persons primarily         interested in the prosecution of the case, including the            prosecutor, if any;

(e)                "scheduled offence" means an offence made punishable by the        Pakistan Penal Code (XLV of 1860), other than an offence           specified in section A of Part I of the Schedule to the             Conciliation Courts Ordinance, 1961 (XLIV of 1961);

(f)                 "Tribunal" means a Tribunal constituted under section 6.

 
            (2)        Words and expressions used in this Ordinance but not herein defined shall have the meanings assigned to them in the Pakistan Penal Code (XLV of 1860) and the Code of Criminal Procedure, 1898 (V of 1898).

            (2)        Except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872 (I of 1872), and the Code of Criminal Procedure, 1898 (V of 1898), shall not apply to any proceedings under this Ordinance.

(a)         upon receiving a complaint of facts which constitute such    offence; 

(b)         upon a report in writing of such facts made by a police officer;        or 

(c)          upon information received from any person other than a police        officer or upon his own knowledge or suspicion that such             offence has been committed:

            Provided that cognizance of an offence under section 14 shall not be taken except upon a complaint made by the husband of the woman, or in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed. 

            (2)        When the Deputy Commissioner takes cognizance of a scheduled offence under clause (c) of sub-section (1), he shall, before constituting a Tribunal under section 5, inform the accused that he is entitled to have the case decided by another Deputy Commissioner, and if the accused, or any of the accused, if there be more than one objects to the case being decided by the Deputy Commissioner who has so taken cognizance of the offence, the matter shall be reported to the Commissioner, who shall transfer the case to another Deputy Commissioner and the Deputy Commissioner to whom the case is so transferred shall proceed in the matter provided in section 5,

            (3)        Where a person is accused of more offences than one and any such offence is not a scheduled offence, the Deputy Commissioner shall proceed in accordance with the provisions of this Ordinance only in respect of the scheduled offence or offences. 

            (4)        Where it appears to any Magistrate, Court or other authority enquiring into or trying any offence that such offence is a scheduled offence, such Magistrate, Court or authority shall stay further proceedings in respect of such offence and refer it to the Deputy Commissioner for proceeding in accordance with the provisions of this Ordinance.

            (2)        A Tribunal shall hold its sittings at such place as the Deputy Commissioner may fix, having regard to the safety of the accused and the witnesses and availability of adequate legal assistance to the accused; and such place may also be a place situated in an areas in which this Ordinance is not for the time being in force.

            (3)        The power of the Deputy Commissioner under sub-section (2) shall, in respect of a place situated beyond the jurisdiction of the Deputy Commissioner by whom the tribunal has been constituted be exercisable by the Provincial Government.]

(2)               In appointing a person as a member, other than the President, the Deputy Commissioner shall have regard to the integrity, education, social status and representative character of such person.

(3)               No person shall be appointed as a member of the Tribunal, other than the President, except after giving the parties concerned an opportunity of being heard and considering objections, if any, to the appointment of such person.

            (2)        If any member of the Tribunal dies, refuses to act, becomes incapacitated from acting, or fails to attend any two meetings of the Tribunal without sufficient cause to the satisfaction of the President of the Tribunal, the President shall refer the matter to the Deputy Commissioner, who shall, as soon as may be appoint another member in place of the defaulting member in accordance with the provisions of sub-sections (2) and (3) of section 6.

            Provided that the Tribunal may in its discretion refuse to take or hear any evidence which in its opinion is being tendered for the purpose of causing vexation or delay or for defeating the ends of justice: 

            Provided further that the provisions of sections 121 to 126 of the Evidence Act, 1872 (I of 1872), shall apply to any proceedings before a Tribunal as they apply to proceedings before a Judge or a Magistrate. 

            (2)        The Tribunal shall give the parties an opportunity of cross-examining the witnesses deposing against them. 

            (3)        The Tribunal may administer oath to a witness in such form or manner, not inconsistent with the religion of the witness, as it deems fit.

(2)               Upon receipt of a report of the Tribunal, the Deputy Commissioner may, if the report does not give a finding on the question referred to the Tribunal or any substantial part thereof, if he is of opinion that there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion a miscarriage of justice, remand the question to the Tribunal or refer the question to a second Tribunal constituted in accordance with section 6.

(3)               Where the Tribunal unanimously or by a majority of four-fifth reports a finding of guilty, the Deputy Commissioner may if he does not proceed under sub-section (2), either convict and pass sentence on, or acquit, the person or persons so found guilty.

(4)               Where the Tribunal unanimously or by a majority of four-fifth reports a finding of not guilty, the Deputy Commissioner shall, if he does not proceed under sub-section (2), acquit the person or persons so found not guilty.

(5)               Where the Tribunal reports a finding either of guilty or of not guilty by a majority of less than four-fifth, the Deputy Commissioner shall, if he does not proceed under sub-section (2), acquit the accused person or persons.

(6)               Where the Deputy Commissioner remands or refers under sub-section (2) a question, he shall—

(a)         if the Tribunal, on such remand or reference unanimously     or by a majority of not less than four-fifths reports a        finding of guilty, convict and pass sentence on the       accused; and 

(b)         in any other case, acquit the accused.

(7)               The Deputy Commissioner shall, before passing any order under this section, give the accused an opportunity of being heard and shall record reasons for every such order.

(8)               The order of the Deputy Commissioner under this section, either convicting or acquitting any accused, shall be announced in the presence of the accused and a copy thereof shall be furnished to the parties free of cost.

(a)               he shall pass upon him any sentence of fine, whatever          may be the punishment provided for the offence in the           Pakistan Penal Code, 1860 (XLV of 1860);

(b)               he may, in lieu of, or in addition to, such fine—

(i)                 pass a sentence of imprisonment of either      description for a term which may extend to seven   years; or

(ii)               in respect of any offence punishable with      transportation or imprisonment of either           description not exceeding five years; 

(iii)             subject to confirmation by the Commissioner,           pass a sentence of transportation or imprisonment           of either description for a term exceeding seven   years but not exceeding fourteen years; or 

(iv)              subject to the provisions of section 393 of the           Code of Criminal Procedure, 1898 (V of 1898),             pass a sentence of whipping, or of whipping and      imprisonment of either description not exceeding      five years:

            Provided that no sentence of whipping shall be passed for an offence under sections 121, 121-A. 122,123, 124-A, 125, 126, 127, 144, 150, 216, 216-A, 400, 401, 402, 494 or 495 of the Pakistan Penal Code (XLV of 1860): 

            Provided further that no sentence of transportation or imprisonment shall be passed for an offence for a term exceeding that provided for that offence under the Pakistan Penal Code, 1860 (XLV of 1860).

            (2)        Where a person has received any such compensation as a full discharge of the civil liability of the accused to such person on account of the loss or injury mentioned in sub-section (1), no Civil Court or any authority performing the functions of a Civil Court shall take cognizance of a claim to compensation based on such loss or injury. 

            (3)        Where a person entitled to receive compensation under sub-section (1) dies before receiving it, the amount of the compensation may be paid to the heirs of such person to be determined by the Deputy Commissioner in accordance with the personal law of the deceased.

            (2)        The President of a Tribunal may, in regard to a case referred to the Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section.

(a)               is satisfied that any person within his District has either a                 blood feud, or occasioned cause or quarrel likely to lead                   to blood-shed; or

(b)               is of opinion that it is necessary for the purpose of                            preventing murder, or culpable homicide not amounting                         to murder, to require a person within his District to                    execute a bond under this section for keeping the peace.

the Deputy Commissioner may order the person to execute a bond with or without sureties (not exceeding two in number), for his good behaviour or for keeping the peace, as the case may be during such period, not exceeding three years, as the Deputy Commissioner may fix. 

            (2)        The Deputy Commissioner may make an order under sub-section (1)— 

(a)            on the recommendation of a Tribunal : or 

(b)            after enquiry as provided in section 19.

            (3)        Pending the completion of an enquiry for the purposes of sub-section (2), the Deputy Commissioner may, if he considers that immediate measures are necessary for preventing any offence referred to in sub-section (1), direct a person in respect of whom the enquiry is to be held, to execute a bond, with or without sureties (not exceeding two in number), for keeping the peace or maintaining good behaviour, for a period not exceeding one month and detain him in custody till such bond is executed.

            (4)        Where a person has been convicted in accordance with the finding of a Tribunal of an offence punishable under section 302, section 304, section 307 or section 308 of the Pakistan Penal Code (XLV of 1860), the Deputy Commissioner, at the time of passing the sentence, or the Commissioner, at the time of deciding the appeal, may make an order under sub-section (1) with respect to that person.

            (5) Where the Deputy Commissioner makes an order under sub-section (1) on the recommendation of a Tribunal, he shall record his reasons for acting on the recommendation.

            (6)        Where the Commissioner or the Deputy Commissioner is of opinion that sufficient grounds exist for making an order under sub-section (1), he may, either in lieu of, or in addition to, such order, by order in writing, direct that the person concerned shall notify his residence and any change of residence in the manner prescribed by section 565 of the Code of Criminal Procedure, 1898 (V of 1898), during such term not exceeding three years, as may be specified in the order.

(a)               of showing cause why a bond should not be required.

(b)               of cross-examining any witnesses not called for by   himself or themselves who may testify to the necessity or        otherwise for the execution of a bond; 

(c)                of having his or their witnesses examined: 
           

            Provided that the Deputy Commissioner may, in his discretion, refuse to hear any evidence which he feels is being tendered for the purposes of vexation or delay or for defeating the ends of justice: 

            Provided further that the provisions of sections 121 to 126 of the Evidence Act, 1872 (I of 1872), shall apply to proceedings under this section as they apply to proceedings before a Judge or a Magistrate. 

            (2)        The Deputy Commissioner shall record his order under this section with the reason for making it.

(2)         A bond executed under section 18 shall be liable to be forfeited, if the person bound thereby to be of good behaviour or to keep the peace, as the case may be commits or attempts to Commit, or abets the commission of, any offence punishable with imprisonment in respect of any member of the opposite family or faction to which the bond related.

(3)               If, while a bond executed under section 18 is in force, the life of any member of either family or faction is unlawfully taken or attempted, the Deputy Commissioner may declare the bond of all or any of the members of the other family or faction along with their sureties (if any) to be forfeited, unless it is shown to his satisfaction that the homicide or attempt was not committed by or in consequence of the abetment of, any member of that family or faction.

            (2)        Imprisonment for failure to give security under section 17 or section 18 may be rigorous or simple, as the officer requiring the security directs in each case.

(a)               abetted or are concerned in the commission of any    scheduled offence; or

(b)               failed to render, when called upon by the Deputy     Commissioner or any public servant, assistance in their       power to discover the offender concerned in the             commission of any scheduled offence; or

(c)                harboured any offender or person suspected of having         taken part in the commission of a scheduled offence;

the Deputy Commissioner may, with the previous sanction of Government impose any reasonable fine on the male adult inhabitants of such village or part of a village, or any of them as a whole, as the case may be, after holding a summary enquiry and affording them an opportunity of showing cause against the proposed action. 

            (2)        The Deputy Commissioner after such enquiry as he may deem necessary, shall apportion the fine imposed under sub-section (1) among the inhabitants of the village or part of the village who are liable collectively to pay in and such apportionment shall be made according to his judgement of the respective means of such inhabitants. 

            (3)        A fine imposed under this section shall, in default of payment, be recoverable as if it were an arrear of land-revenue due from the inhabitants of the village or part thereof, upon whom the fine is imposed.

            Explanation— In computing the period of thirty days mentioned in this sub-section the day on which the decision, sentence or order sought to be appealed against was given, passed or made, and the time requisite for obtaining a copy thereof shall be excluded. 

            (2)        The Commissioner shall not confirm modify, alter or set aside any decision, sentence or order appealed against except after giving the parties an opportunity of being heard. 

            (3)        The Commissioner may, in deciding an appeal under sub-section (1) exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure, 1898 (V of 1898) and may also enhance any sentence: 

            Provided that no sentence shall be passed by the Commissioner in such appeal which the Deputy Commissioner could not have passed under this Ordinance 
           

            (4)        The decision of the Commissioner on an appeal under this section shall be final.

            Provided that nothing herein contained shall be deemed to authorize Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been accepted by the Deputy Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceeding have been so conducted as to occasion a miscarriage of justice. 

            (2)        Government may, after examining any record called for under sub-section (1), and giving the parties an opportunity of being heard, pass such orders as it may think fit: 

            Provided that no sentence shall be passed by Government in the exercise of its powers under this sub-section which the Deputy Commissioner could not have passed under this Ordinance.

            (2)        In particular, and without prejudice to the generality of the foregoing provisions, such rules may provide for all or any of the following matters, namely:

(a)               the offences which may be compounded.

(b)               the persons by whom and the manner in which an offence may be compounded;

(c)                the procedure regarding appeal and revision;

(d)               the maintenance of record of the Tribunal and those of the Deputy Commissioner and the Commissioner ; and

(e)                such other matters as Government may consider necessary for carrying into effect the provisions of this Ordinance.

SCHEDULE
[See SECTION 1 (2)]

1.      The Divisions of Quetta and Kalat except the Tribal Areas.

2. The District of Lasbela.