‫ﺑﺴﻢ ﷲ اﻟﺮ ّﺣﻤﻦ اﻟﺮ ّﺣﯿﻢ‬

‫ﻠﯽ َرُﺳۡﻮِﻟِہ اۡﻟَﮑِﺮۡﯾِﻢ‬

ٰ ‫ﺼﱢﻠﯽ َﻋ‬
َ ُ‫َﻧۡﺤَﻤُﺪٗه َو ﻧ‬

LAW OF MAGISTRACY IN
PAKISTAN

by

[Justice ® Dr. Munir Ahmad Mughal]

Introduction:

The General Criminal Law of Pakistan is

contained in the Pakistan Penal Code,
1860 and the Code of Criminal
Procedure, 1898. There are also special
enactments containing both the
substantive and procedural criminal law
which overrides the general law where it
specifically mentions that fact. Where
such special laws are silent the general

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law comes in and becomes applicable to
the extent it is no specifically ousted.
The principles of law enshrined the
Constitution of Pakistan are to remain
dominant over all laws of Pakistan.

The Code of Criminal Procedure, 1898

has been amended since then many a
time to suit the needs of the times.
However, the nature and form of the law
is generally the same. The last
amendment was made very recently
bythe Parliament whereby statutory right
of bail has been provided to those under
trial prisoners whose cases are not
concluded in certain period of time.1
Definition of the term Magistrate:

Section 4 is the defining Clause in the

Code of Criminal Procedure, 1898. It has
1
See Criminal Law Amendment Act No. VIII of 2011.

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three subsections. Sub-section (1) of
section 4 has clauses (a) to (w). Clause
(ma) defines the word Magistrate.
Section 4(1) (ma) defines the word
Magistrate as under:
“Magistrate means Judicial Magistrate
and includes a Special Judicial
Magistrate appointed under section 12
and 14.”

12. Subordinate Magistrates.

(1) The Provincial Government may

appoint as many persons as it thinks fit to
be Magistrates of the first, second or
third class in any district and may from
time to time, define local areas within
which such persons may exercise all or
any of the powers with which they may
respectively be invested under this Code.

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(2) Local limits of their jurisdiction.

Except as otherwise provided by such

definition, the jurisdiction and powers of
such persons shall extend throughout
such district.

Baluchistan Province.

The Government of Baluchistan has

published Notification in the Gazette of
Baluchistan, extra ordinary dated 22
March 1996 as to territorial jurisdiction
of Judicial Magistrates which runs as
under:
1. The Judicial Magistrate(s) appointed
in a Session Division shall have the
jurisdiction throughout that Division
subject to the powers conferred upon
them under section 12 of the Code of
Criminal Procedure, 1898, as amended
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by the Law Reforms Ordinance, 1972,
and further amended by the Law
Reforms (Amendment) Ordinance, 1996,
(XL of 1996).
2. Wherever, in any of the Sessions
Divisions the number of Judicial
Magistrates is more than one, the
Sessions Judge of the Division, shall
distribute the business amongst the
Judicial Magistrates.

13. Power to put Executive

magistrates in charge of sub-
division.

(1) The Provincial Government may

place any Executive Magistrate in charge
of a Sub-Division and relieve him of the
charge as occasion arises.
(2) Such Magistrate shall be called Sub-
Divisional Magistrate.
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(3) The Provincial Government may
delegate its power under this section to
the District Magistrate.

14. Special Judicial and Executive

Magistrates.

(1) The Provincial Government may on

the recommendation of the High Court,
confer upon any person all or any of the
powers conferred or conferrable by or
under this Code on a Judicial Magistrate
in respect to particular cases or to a
particular class or particular classes of
cases, or in regard to cases generally in
any local area.
(2) Such Magistrates shall be called
Special Judicial Magistrates, and shall be
appointed for such term as the Provincial
Government may, in consultation with

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the High Court by general or special
order, direct.

14-A. Appointment of Special

Magistrates.

(1) Notwithstanding any thing contained

in this Code or any other law for the time
being in force or any judgment of any
Court including superior Courts, the
Provincial Government may appoint
Special Magistrates with the power of a
Magistrate of First Class exclusively for
the trial of offences relating to price
control under any Provincial law or
Federal law for the time being in force.
(2) The Provincial Government or any
officer authorised by the Provincial
Government on this behalf may, from
time to time define local areas within
which such Magistrates may exercise all
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or any of the powers with which they
may respectively be invested under any
Provincial law or Federal law relating to
price control.

15. Benches of Magistrates.

(1) The Provincial Government may

direct any two or more [Judicial
Magistrates] in any place to sit together
as a Bench, and may by order invest such
Bench with any of the powers conferred
or conferrable by or under this Code on
Magistrate of the first, second or third
class, and direct it to exercise such
powers in such cases, or such classes
only, and within such local limits, as the
Provincial Government thinks fit.
(2) Powers exercisable by Bench in
absence of special direction. Except as
otherwise provided by any order under
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this section every such Bench shall have
the powers conferred by this Code on a
Magistrate of the highest class to which
any one of its members, who is present
taking part in the proceedings as a
member of the Bench, belongs, and as
for as practicable shall, for the purposes
of this Code, be deemed to be a
Magistrate of such class.

16. Power to frame rules for

guidance of Magistrates and
Benches.

The Provincial Government may '........

from time to time, make rules consistent
with this Code for the guidance of
Magistrates, Benches in any district
respecting the following subjects:
(a) the classes of cases to be tried:
(b) the times and places of sitting;
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(c) the constitution of the Bench for
conducting trials;
(d) the mode of settling differences of
opinion which may arise between the
Magistrates in session;
(e) the mode and manner of conducting
raids and trial on the spot.

17. Subordination of Judicial

Magistrates and Benches to
Sessions Judge.

(1) All Judicial Magistrates appointed

under sections 12 and 14 and all Benches
constituted under section 15 shall be
subordinate to the Sessions Judge, 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,

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as to the distribution of business among
such Magistrates and Benches.
(2) Omitted.
(3) Subordination of Assistant Sessions
Judges to Sessions Judge. All Assistant
Judges shall be subordinate to the
Session Judge in whose Court they
exercise jurisdiction, and he may, from
time to time, make rules consistent with
his Code as to the distribution of
business among such, Assistant Sessions
Judges.
(4) The Session Judge may also when he
himself is unavoidably absent or
incapable of acting, make provision for
the disposal of any urgent application by
an Additional or Assistant Sessions
Judge and such Judge shall have
jurisdiction to deal with any such
application.

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Who is a magistrate?

In general scheme of the Code of

Criminal Procedure, 1898, a magistrate
is a person appointed by the Provincial
Government in any district to exercise all
or any of the powers with which he is
invested under the Code of Criminal
Procedure, 1898.
After the separation of judiciary from the
executive in the year 1996, the civil
judges have been entrusted with the
powers of judicia magistrates to try
criminal cases. hence, the
designation/nomenclature of the post of
“civil judge”2 and now “civil judge-cum-
judicial magistrate”3
Who is his appointing authority?

2
As per section 3 of the Civil Service (judicial Branch) Rules, 1962, the civil service judicial branch was
comprised of the posts of civil judges and such other posts as may be determined by the government.
3
The new designation is mentioned in the Punjab Judicial Service Rules, 1994.

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Appointing authority of an executive
magistrate under the Code of Criminal
Procedure, 1898 is the Provincial
Government.
After the separation of judiciary from the
executive, the appointing authority of a
judicial magistrate is now the High
Court.4

Who is his controlling authority?

The controlling authority within the

Sessions Division with respect to
Judicial function of the Magistrates is the
Sessions Judge.

To whom he is subordinate?

4
See section 4 of the Punjab Judicial service Rules, 1994.

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All magistrates appointed under ss. 12,
14, 14-A and all benches constituted
under section 15 of the Code of Criminal
Procedure, 1898 are subordinate to the
Sessions Judge.

All Executive Magistrates appointed

under ss. 12, 13 and 14 are subordinate
to the District Magistrate and also to
Sub-divisional Magistrate
In sub-division all Executive magistrates
(other than SDM) are subject to SDM
subject to general control of DM.
The Executive Magistrates and the DM
are subordinate to Sessions judge to the
extent and in the manner expressly
provided by the Code of Criminal
Procedure, 1898.

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Who is competent to transfer a
magistrate?
The Provincial Government alone is
competent to make transfers of the
Magistrates.
However, Judicial Magistrates are
transferred by the High Courts5.

Who is competent to allot cases

for disposal to him?

The Sessions Judge and in his absence

the Additional Sessions Judge, and
where Add.SJ is also not available the
Asstt. Sessions Judge.

5
See Section 10 of the Punjab Judicial Service Rules, 1994.

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Who can withdraw a case from a
magistrate?

The Sessions Judge.

The High Court.

Who vests a magistrate with

ordinary or additional powers to
try the cases?

All Magistates have the ordinary powers

specified in Schedule 3 but the
Provincial Government may invest any
magistrate with any power specified in
/Schedule 4. In conferment o f such
powers in the case of JM the
recommendation of High Court.
The Provincial Government may
authorize a DM to invest any Magistrate
subordinate to him with any pwer
specified in part II of the 4th Schedule.
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What is the extent of a magistrates
jurisdiction,?

As the Provincial Government

determines and notifies.

Who can withdraw powers of a

Magistrate?

The Provincial Government on the

recommendation of the HC.
1. Which of the cases a Magistrate
can hear and try?

Any case concerning which he is vested

with jurisdiction and entrusted to him by
the Sessions Judge.

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What is power of a Judicial
Magistrate if the case is
punishable to sentence beyond
his powers?
He may award sentence to the extent of
his own power or refer the case to the
Sessions Judge.

What a Judicial Magistrate is to do

if a case is exclusively triable by
Court of Sessions?
He is to send the accused to the Sessions
Court.

What a Judicial Magistrate is to do

where some offences are triable
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by him and some by the Court of
Sessions?

He may retain the case which falls within

his jurisdiction and send up the case
falling in the jurisdiction of the Sessions
Court to the Sessions Court or may send
the whole case the Sessions Court.

What are powers of a Judicial

Magistrate?

As conferred on him by the Provincial

Government on the recommendation of
the High Court.

What are summary powers of a

Magistrate?

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Power to try summarily is not available
for all the offences.
It is available in respect of the offences
mentioned in section 260 of the Code of
Criminal Procedure, 1898. This power is
discretionary. A summary trial is
summary only in respect of the record of
its proceedings not in respect of
proceedings themselves. A summary trial
should be complete and carefully
conducted. Intention of Chapter 22 of the
Code of Criminal Procedure, 1898 is to
dispose of the matter summarily but the
same is never intended to deprive the
persons in any right provided to them in
Chapters 21 and 22 of the Code.6
Power to try summarily are not ordinary
powers. A Magistrate or a Bench of
Magistrate is to be especially empowered

6
PLD 1962 Peshawar 203; 1999 P.Cr. L. Journal 1068.

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by the Provincial Government to try in a
summary way.

What is the detail of those

offences which may be tried
summarily under Section 260 Cr.
P. C.?

The detail of offences triable summarily

is as under:

(a) offences not punishable with

death, transportation or imprisonment
for term exceeding six months;
(b) offences relating to weights and
measures under section 264, 265 and
266 PPC;
(c) hurt under section 337-A (i) of
PPC.

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(d) theft under section 379, 380 or
381PPC where value of property
stolen does not exceed ten thousand
rupees.
(e) dishonest misappropriation of
property under section 403 PPC,
where the value of the property
misappropriated does not exceed ten
thousand rupees.
(f) receiving or retaining stolen
property under section 411 PPC,
where the value of such property does
not exceed ten thousand rupees.
(g) assisting in the concealment of
disposal of stolen property under
section 414 PPC where the value of
such property does not exceed ten
thousand rupees.
(h) mischief under section 427 PPC.

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 (i) house trespass under section 448
and offences under section 451, 453,
454, 456 and 457PPC.
(j) insult with intent to provoke a
breach of the peace, under section
504, and criminal intimidation under
section 506 PPC.
(k) Offence of personation of an
election under section 171-F PPC.
(l) an attempt to commit any of the
foregoing offences, when such
attempt is an offence.
(m) offences under section 20 of the
Cattle-trespass Act, 1871.

Besides the above the following are,

inter alia, offences triable summarily:

1. Offences under section 38 of the

LDA Act.

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What record and in what format is
to be kept of the cases tried
summarily?

Section 263 Cr. P. C. is the relevant

section. It exempts the Magistrate from
recording any evidence of any witness as
is done in ordinary trials. It requires what
a magistrate is to do.
The magistrate shall enter the following
particulars of a case tried summarily:
(a) serial number.
(b) date of commission of offence.
(c) date of report or complaint;
(d) name of complainant (if any);
(e) name ,parentage and residence of
the accused;
(f) offence complained of and the
offence (if any0 proved, and in cases
coming under section 260(1) (d) (e)

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 (f) or (g) in respect of which the
offence has been committed;
(g) plea of the accused and his
examination (if any);
(h) the finding, and in the case of a
conviction, a brief statement of the
reason therefore,
(i) the sentence or other final order;
and
(j) the date on which the proceedings
terminated.

When exercise of Summary trial is

not proper:

Exercise of this power is not proper,-

(a) in cases which are hotly contested
;

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 (b) in case involving intricate
questions of title and possession;
(c) in cases necessitating the taking
of lengthy evidence ;
(d) in cases requiring a local inquiry
to be made ;
(e) in warrant cases ;
(f) in cases in which difficult nature
of the points is at issue;
(g) in case an offence is committed
third time by the same person under
section 13 of the Punjab Food Act,
1929 which is punishable upto 3
years punishment besides fine.

What is the difference between

summary trial and regular trial?

In Summary trial ,

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 1. the limit of imprisonment is for a
term not exceeding three months in
case of conviction.
2. no formal charge is to be framed
where there is no appeal.
3. no evidence is to be recorded
where there is no appeal.
However, where an appeal lies even in
summary trial the Magistrate is bound
under section 264 Cr. P. C. to record the
substance of the evidence.
In cases in which no appeal lies the
particulars written in the form prescribed
constitute the record. Entry in such form
as the Provincial Government may direct
is mandatory for the Magistrate.7

7
PLD 1975 Pesh. 216

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