The Punjab government has demanded reversal of Musharraf’s amendments in the Criminal Procedure Code 1898, and the ball is in the federal government’s court for quite a while now, though its own provincial government of Sindh has reverted to the British system of administration, which is being deemed as an act carried out because of certain political compulsions.
On the other hand, the Punjab government is said to be apprehensive of political backlash if it dared treading path of the Sindh government since the constitutional experts are of the considered opinion that the constitution had been violated in reverting to the colonial system of governance.
Now the actual situation is that the Punjab government is interested in pursuing the reversal to the criminal justice administration system of the colonial times, but cannot do so as long as the Centre goes ahead with the amendments of the CrPC, a draft which is lying with the federal government.
Moreover, restoration of the magistracy would blatantly contradict the idea that the judiciary must be separated from the executive.
As per the draft of the Code of Criminal Procedure (Amendment) Act 2011, the Punjab has demanded appointments of the Judicial (four classes) and district (seven classes) Magistrates. It has been also demanded that the existing sub-divisions be maintained, which are now usually put under the charge of a Magistrate shall be deemed to have been made under this Code.
By virtue of these amendments, in every district, the provincial government can appoint an Executive Magistrate of the First Class to be the District Magistrate, and in case the office of the District Magistrate is vacant, the Additional District Magistrate of the district and in case there is no Additional District Magistrate, such other Executive Magistrate as the provincial government may determine shall perform the functions of the District Magistrate.
Moreover, the provincial government may also appoint Executive Magistrates for particular areas or for performance of particular functions and confer upon them all or any of the powers conferred or conferrable by or under this Code on an Executive Magistrate. Such Magistrates shall be called Executive Magistrates, and shall be appointed for such term as the provincial government may, by general or special order, direct provided that no powers shall be conferred under this sub-section on any police officer below the rank of Assistant Superintendent and no power shall be conferred on a police officer except so far as may be necessary for preserving the peace, preventing crime and detecting, apprehending and detaining offenders in order to their being brought before a Magistrate and for performance by the officer of any other duties imposed upon him by any law for the time being in force.
All Executive Magistrates in a district appointed under sections 12, 13 and 14 shall be subordinate to the District Magistrate and he may, from time to time, make rules or give special orders consistent with this Code and any rules framed by the Provincial Government under section 16, as to the distribution of business amongst such Magistrates.
For Ex-officio Justice of the Peace, it has maintained that by virtue of their respective offices, the Judges of the High Courts are Justices of the Peace within and for whole of Pakistan, Sessions Judges and District Magistrates are Justices of the Peace within and for the whole of the territories administered by the provincial government under which they are serving.
It has been demanded that provided that the offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code (Act XLV of 1860), except offences specified in section 153A and section 281 of the said Code shall be tried by the Executive Magistrates. Also the offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates.
In addition to his ordinary powers, any Magistrate may be invested with any powers specified in the Fourth Schedule, and in case of a Judicial Magistrate, such powers shall be conferred on the recommendation of the High Court.
The amendments would also withdraw powers of the police officers, like an amendment in section 129 of the Act for “the Police Officer of the highest rank not below an Assistant Superintendent, or Deputy Superintendent, of Police”, the words “Executive Magistrate of the highest rank” shall be substituted.
Also any Magistrate of the first class especially empowered in this behalf by the provincial government may, subject to the provisions of sub-section (3) of section 190, transfer any case, of which he has taken cognizance, for trial to such Judicial Magistrate as may be specified by the Sessions Judge provided that if the offence is triable by a Judicial Magistrate, the case shall be sent to the Court of Session for transfer to such Magistrate. And any District Magistrate may empower any Executive Magistrate subordinate to him, who has taken cognizance of any case, to transfer such case for inquiry or trial to any other Executive Magistrate in his district who is competent under this Code to try the accused; any such Magistrate may dispose of the case accordingly. Moreover, a Sessions Judge may empower any Judicial Magistrate who has taken cognizance of any case, to transfer such case for trial to any other Judicial Magistrate in his district, and such Magistrate may dispose of the case accordingly.
Ordinary powers of a Sub-divisional Magistrate appointed under section 13 will be to direct warrant to landholders, require security for good behaviour, make orders prohibiting repetitions of nuisances, make orders under section 144, depute Subordinate Magistrate to make local inquiry, order police investigation into cognizable case, receive report of police officer and pass order, issue process for person within local jurisdiction who has committed an offence outside the local jurisdiction, entertain complaints, receive police-reports, entertain a case without complaint, transfer case to a Subordinate Magistrate, pass sentence on proceedings recorded by a Subordinate Magistrate, forward record of a Magistrate subordinate to him to the District Magistrate, sell property alleged or suspected to have been stolen, etc. and withdraw a case other than an appeal, and to try or refer the same for trial.
As per the amendments, the ordinary powers of a District Magistrate will be to require delivery of letters, telegrams, etc., issue search-warrants for documents in custody of authority engaged in the delivery of mail, or provision of telephone, telegraph or similar other services, require security for good behaviour in case of sedition, discharge persons bound to keep the peace or to be of good behaviour, to cancel bond for keeping the peace, order preliminary investigation by police-officer not below the rank of inspector in certain cases, try summarily, tender pardon to accomplice at any stage of a case, hear appeals from order requiring security for keeping the peace or goods behaviour, orders of Magistrate refusing to accept or rejecting sureties, and hear appeals from convictions by Magistrates of the second or third classes, call for records, order inquiry into complaint dismissed or case of accused discharged, issue commission for examination of witness, and compel restoration of abducted female.
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