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MAGISTERIAL TRIAL
1. TRIAL DEFINED
The word trial has not been defined by the Criminal
Procedure Code, 1898 but it can be defined in generic terms as,
“Trial means a judicial proceeding where evidences are allowed to
be proved or disproved and guilt of a person is adjudged leading
to an acquittal or conviction.”
2. PRETRIAL STAGES
Law is set into motion by 154 Cr.P.C. or complaint (section 200
Cr.P.C.).
 Registration of FIR
FIR stands for first information report which is lodged under section
154 of the Criminal Procedure Code. The FIR is only the basis
information which is made available to the police when a cognizable
offence takes place. FIR is the first stage from which a criminal case
takes the birth.
 Investigation
FIR in a criminal case leads to investigation in the case. Investigation
leads an investigating officer to reach to a conclusion whether a
charge-sheet has to be filed or a closure report has to be filed in the
case. If the investigation result in discovery of an offence, a
chargesheet is filed, otherwise a closure report is filed before the
concerned court.
 Trial
If the investigating officer finds out that a case is fit for trial, then he
files a report in the case.
3. MAGISTERIAL TRIAL RELEVANT PROVISIONS
 241 to 250-A (Chapter-XX), 340(2), 342, 173, 349, 353 to 365
(Mode of recording evidence) and 366 to 373 (of judgment),
512 Cr.P.C.
 High Court Rules and Orders Chapter-1-D, E, H, Vol-III
4. CRIMINAL TRIAL READ WITH CONSTITUTION OF PAKISTAN,
1973
Constitution of Pakistan specifically demarcates the contours of
Criminal Law of Pakistan by stating unequivocally in Article 9: “No
person shall be deprived of life or liberty save in accordance with
law”.
Similarly, Article 13 states: “No person shall be punished for the
same offence more than once”.
Article 13(b) also states: “No person shall, when accused of an
offence, be compelled to be witness against himself”.
Article. 10-A Right of Fair Trial
The key legal texts on fundamental rights of fair trial can
be found in Article 14 of the International Covenant on Civil and
Political Rights, Article 6 of European Convention on Human
Rights as well as other Charters like Article 7 of the African
Charter on Human and Peoples' Rights and Article 8 of the
American Convention on Human Rights. Some of the ingredients of
this right:--

. Right to be presumed innocent until proved guilty

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. Right to be heard by a competent, independent and impartial

tribunal
. Right to counsel
. Right to privacy with counsel
. Right to have adequate time and comments for preparation of
defence
. Right to produce evidence and cross-examine witnesses
. The right to present arguments
. The right to have the trial completed within a reasonable
time
. The right to appeal at first instance to higher courts

There is no doubt that the courts are and should be

the protectors of the rights of fair trial which is indeed the
most essential role of the courts in any civilized society.

5. PROCEDURE FOR TRIAL

i. Trial before Magistrate u/sec. 241 to 250 Cr.P.C.
ii. Summary Trial Sec. 260 to 265 Cr.P.C.

A. Challan or Police report.

Magisterial trial starts after submission report 173 or private
complaint. Upon report u/sec. 173 Cr.P.C. magistrate shall take
cognizance under section 190 (1) Cr.P.C. court has to examine whether
there are accused persons placed in column no.2 as innocent. If there is
sufficient material or record, court may summon them at earliest on its
own, or else proceed with the regular summoning of other accused
persons placed in column no.3 or 4.
Measures to be taken upon taking cognizance
i. Column no.2 accused placed as innocent
ii. Column no.2 in red ink
iii. Whether arrest to extent of some co-accused persons is
pending.
B. Summoning u/sec. 204 Cr.P.C.
After taking cognizance of an offence, if there is sufficient
material on record for proceeding keeping in view fourth column of
second schedule summons or warrant should be issued for summoning
of accused.
C. Appearance of Accused.
If accused appears in court, the magistrate shall follow
section 241-A Cr.P.C. or else after issuing warrants proceedings of
section 87, 88 Cr.P.C. shall be carried out to declare such accused as
proclaimed offender.
D. Supply of copies. 241-A Cr.P.C.
The section 241-A, Cr.P.C. for the Magisterial trial and
section 265-C for the Sessions trial, provide that in all cases instituted
upon police report (except those triable summarily or punishable with
imprisonment not exceeding six months), copies of statements of
witnesses under sec. 161 and 164, Cr.P.C., police report and documents
forwarded by police, shall be supplied to accused free of cost not less
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than seven days before commencement of trial: exception is the part if

any of statements, disclosure of which might defeat public interest.
“In case of Sikandar Ali Lashari versus the State vide 2016 YLR
62, the Hon’ble High Court of Sindh had been pleased to hold and
observe that CDs and USBs if prepared during investigation, shall
also form part of supply of copies to ensure fair trial as such was
fervent, and stringent inalienable and incontrovertible right of
accused for making his defense.”
 Exceptions to 241-A
i. Cases tried summarily
Further provided that where in summary trial, an appeal lies
against conviction, 241-A is mandatory and not in other cases.
(Where no appeal lies--petty cases and summary trials 413,
414 Cr.P.C.)
ii. Such copies or part of statements shall be excluded from
supply if their disclosure is against public interest.
 Not less than seven days before commencement of Trail.
Mandatory period of 7 days has been incorporated in section 241-A
Cr.P.C. meaning thereby, that charge cannot be framed within seven
days of supply of copies so that sufficient time may be given to accused
to make up his defense.
E. Commencement of Trial
Trail commences from framing of charge as held by
Honorable Supreme Court of Pakistan in case cited as 2000 SCMR
785

Taking cognizance of offence by Court is not

commencement of trial---Taking of cognizance of a case by
a Court is not synonymous with the commencement of its
trial which takes place on framing of the charge against the
accused.

F. Juvenile Cases
No joint trial of a child and adult person under section 5 of Juvenile
Justice System Ordinance 2000.
 Separate report u/sec. 173 Cr.P.C. to be filed.
 Separate trial.
 Procedure of Section-6 to be followed.
 May be sent on probation on proof of charge.
 No child shall be awarded punishment of death, handcuffed or put
in fetters.
 Legal assistance at the expense of State.

G. Framing of Charge
Sec.221 to 232 Cr.P.C. read with High Court Rules & Orders Ch-1-
D, Vol-III
 CHARGE
Charge is a precise formulation of specific accusation made
against a person who is entitled to know its nature at the early stage.
Court for the purposes of fair and just trial is duty bound to frame the
charge on the basis of material placed before it.
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 Object of framing charge

Object of framing charge is to enable accused to know the
precise accusation against him, which he is required to meet before the
evidence is adduced by prosecution against him.
 The Essentials of Charge
i. Charge should state the offence with which accused is charged.
ii. If the offence is named specifically by the law which creates
the offence, the offence may be described in the charge by
that name only.
iii. The law and the section of the law against which the offence is
committed should be mentioned.
iv. The charge should be written in English or in the language of
the court.
v. In case of previous conviction of accused for affecting the
sentence, the fact and date, place of previous conviction are to
be stated.
vi. Particulars as to time, place of offence and person against
whom or the thing in respect of which it is committed.
vii. Where the accused is charged with criminal breach of trust or
dishonest misappropriation of money, it is sufficient to mention
the gross sum in respect of which the offence is committed and
the dates between which the offence is committed provided
the time between the first and last date does not exceed one
year.
 Omissions or Errors section 225 Cr.P.C.
Omissions or errors in framing charge would not vitiate trial unless
the accused is in fact misled by such error or omission and it has
occasioned a failure of justice.
 Alteration of charge u/sec. 227
 Sou moto or on application
 At any time before judgment. Every such alteration or addition
shall be read and explained to accused.
 Witnesses may be recalled u/sec. 231 if charge is altered.

 If no material case for framing of charge, then notice to

state and acquit 249-A Cr.P.C.
 If after putting charge to accused, he admits the same then
section 243 is invoked for conviction i.e. his admission. Show
cause notice u/section 243 is mandatory in this eventuality.
 If accused does not plead guilty or court does not find it
appropriate to convict on the basis of admission, then 244 Cr.P.C.
is invoked and prosecution evidence shall be recorded to decide
guilt of accused on merit.
H. Recording of Evidence
Relevant Provisions. High Court Rules & Orders Ch-1-E Vol-III
And Sections 353 to 365 Cr.P.C.
i. Only Relevant evidence should be recorded.
Only relevant and admissible evidence should be recorded and
if any objection is raised during the course of recording
evidence, magistrate should decide it forthwith. The objection
and decision thereon should be clear.
ii. Duty of Magistrate to elucidate facts.
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Magistrate should endeavor to elucidate the facts and record

evidence in clear and intelligible manner.
iii. Evidence to be taken in presence of accused. u/sec. 353 Cr.P.C.
Exception .. where exemption from personal attendance is
allowed, but in presence of his pleader.
iv. Memorandum of substance of evidence to be prepared by
Magistrate u/sec. 355 Cr.P.C (in cases tried under Ch. XX or Ch.
XXII “Summary Trials”). Signed and written by own hand, if
prevented in his presence.
An exception to this rule is section 263 Cr.P.C. that where no
appeal lies, there is no need to record evidence i.e. Summary
Trial.
v. Section 356 deals with Sessions Trials and inquiries under Ch-
XII (disputes as to immovable property) by magistrates.
Evidence to be recorded in full.
vi. Section-359 Evidence to be recorded in narrative form and not
in the form of question answer. However, question answer form
is discretion.
vii. U/Section 360 when evidence is complete, it shall be read over
to witness in presence of accused. Corrected in presence of
witness and shall be read over again. If evidence is taken down
in other language other than of the witness, it shall be
translated to him.
viii. U/section 363 demeanour of witness. Rule 13 Ch-1-E Vol-III
High Court Rules & Orders. It may be recorded during or at the
close of examination of witnesses.
ix. Documents if any on behalf of prosecution. Trial court is at
liberty to take any document in evidence even if not annexed
with report u/sec. 173 Cr.P.C. (2015 P.Cr.L.J 1566)
x. Evidence of prosecution is formally closed.

I. CERTAIN EVENTUALITIES DURING TRIAL.

i. Diet money cannot be imposed on accused for not

producing his counsel, or for not cross examining the PWs.
PLD 2007 Lah. 368 Ghulam Nabi Case.
Ss.302, 148 & 149---Negligence in attending to murder
cases by witnesses causing delay---Modes to be adopted by
Courts started---Adjournment granted to accused---Subject
to payment of diet money ---Validity---Prosecution
witnesses on the date fixed for evidence, were present, but
counsel for accused was not in attendance---Adjournment
was allowed to accused subject to imposition of diet
money which was directed to be paid by accused to
prosecution witnesses---In view of growing tendency of
negligence in attending to murder cases which was the
main cause of delay, three modes could be adopted (i)
granting last opportunity to accused to produce his counsel
(ii) recording examination-in-chief of the witnesses in
absence of accused counsel and reserving right of cross-
examination and if not conducted on the adjourned date
and (iii) providing a defence counsel at State expense---
Imposition of fine on accused for absence of counsel finds
no place in Criminal Procedure Code, 1898---Trial Court, in
circumstances had travelled beyond its jurisdiction in the
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case---Impugned order was set aside---Fine, if realized, was

to be refunded to accused/petitioners.
ii. Right of cross-examination cannot be closed.
2015 P.Cr.L.J 1566
(Khizar Hayat Vs Judicial Magistrate)
Right of cross-examination, closing of---Accused avoiding to
cross-examination witness---Duty of court---Quashing of
order---Cross-examination of witness---Document not part of
challan was produced during cross-examination of witness---
Admissibility---Statement of complainant was recorded
during the trial---Partial cross-examination on the
complainant was conducted by defence counsel, while for
remaining cross-examination, defence counsel showed his
inability, upon which Trial Court closed the right of further
cross-examination.. No right was explicitly available to
accused to secure legal representation at State expenses in
the matters, other than entailing capital punishment---In
such like cases, it was the duty of the Trial Court itself to
put up a cross-examination on behalf of an un-represented
accused, or who himself intentionally avoiding to cross-
examine the witness---When defence counsel was
constantly, not showing his appearance, it was the
obligation of the Trial Court to put question itself to defend
the cause of accused, or to offer accused to cross-examine
the witness, in order to ascertain truth for just decision of
the case---Cross-examination was a valuable right of an
accused, and was the only vehicle through which the truth
and falsity of the witness could be determined.
iii. Section 249 Cr.P.C.
This provision should not be used sparingly by the
magistrates rather it may be used after taking due measures
and cautions.
All measures should be adopted to procure
attendance of complainant.
iv. Connected cases of 13 of Arms Ordinance, 1965 as
amended in 2015.
As per High Court Rules & Orders Ch-24-B Rule 8-A Vol-III
“Magistrate should record evidence but should preferably
reserve judgment till the decision of main case.”
Such cases should be decided on its own merits and
evidence and judgment should not be prejudiced by the finding
in connected sessions case.
J. EXAMINATION OF ACCUSED UNDER SECTION 342 Cr.P.C.
Provisions of S. 342 Cr.P.C. are mandatory in nature and
are based on principles embedded in maxim audi alteram partem viz.
no one should be condemned unheard.
Accused has to be heard not only to the extent of prima facie case
proved against him but on every circumstance appearing in evidence
against him. Duty is caste upon Trial Court to put questions to accused
on every piece of incriminating evidence which has been recorded
against him in evidence so that accused could be enabled to explain
adverse circumstances appearing in evidence. Non-compliance of
mandatory provisions under S. 342, Cr.P.C. are not curable and amount
to miscarriage of justice. (2015 YLR 1569)
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This statement of accused u/sec. 342 is always recorded without

oath. This provision is mandatory.
This statement of accused u/sec. 342 is recorded after prosecution
evidence and before accused is called on for his defense.
 Object of 342 Cr.P.C.
Statement of accused recorded under S.342, Cr.P.C., was
neither a confession nor it equated with the confession, rather, it was a
plea, which may be taken by accused in his defence to explain the
evidence produced against him---Prime object of S.342, Cr.P.C., was to
provide the accused and opportunity to offer his explanation about the
evidence so produced against him, and it was neither meant to collect
evidence against him or anybody else nor any part of such statement
could be used against any other person.
 Statement of 342 Cr.P.C. should be taken into consideration in its
entirety and not merely its inculpatory part excluding exculpatory
part. 2008 YLR 1290 …PLD 1991 SC 520
 Magistrates should avoid asking prosecutors to record statement
u/sec. 342 Cr.P.C. since it violates the norms of fair trial as
envisaged in Art-10-A Constitution of Pakistan.
 Piece of evidence not put to accused in 342 statement, cannot be
considered against him. PLD 2003 Lah. 217…2001 SCMR 56
 Incriminating evidence has to be put to accused in statement
u/sec. 342 i.e. Any dying declaration, forensic report, recovery,
extra judicial confession, CD, audio, video, smuggled goods etc.
Evidence of co-accused against him etc. Effect of not putting
certain evidence to accused is that it cannot be read in evidence
at the time of final judgement against him.
 It is the requirement of law that statement of accused recorded
under Section 342, Cr.P.C. should be got signed/thumb marked
by the accused. This mandatory provision of Section 364 if not
complied with amounts to an illegality and not irregularity curable
under Section 537, Cr.P.C.
 Accused may produce defense evidence in the form of documents
and witness u/sec. 342. Application of 244 Cr.P.C. may also be
filed by him if document and witness is not in his control or
access.
 The accused is a competent witness and may give evidence on
oath in his defense on his own choice (Sec. 340(2), Cr.P.C.). If he
so chooses to give evidence on oath, he may be cross examined
by prosecution. He cannot be compelled to do so.

K. FINAL ARGUMENTS / CLOSING SUBMISSIONS.

After the accused has led his defense, final arguments from
prosecution and the accused (himself or through Advocate on his
behalf) are called upon.
L. DECISION / JUDGMENT.
After all agony of trial comes to end, there comes a time to
award decision or judgment which may result into either acquittal
under section 245(i), Cr.P.C. or conviction under section 245(ii),
Cr.P.C. of the accused. Where an accused is confined in jail and he is
acquitted, he may be released in the case in question by a release
warrant, issued by the Court directing the jail superintendent to execute
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the same. If the acquitted accused is on bail, his bail bonds in the case
shall stand cancelled and surety is to be discharged.
 False and Frivolous or Vexatious accusations 250 Cr.P.C.
 Magistrate may award Rs. 25,000/- as compensation.
 CONVICTION.
Conviction means to find guilty of an offence. Sentence is
punishment awarded to a person convicted in criminal trial. Conviction
is followed by sentence.
If the magistrate trying the offence finds that he is not competent
to award sentence more severe than he is competent to award, he may
record opinion and submit proceedings and forward accused to Worthy
Sessions Judge for appropriate orders u/sec. 349 Cr.P.C.

M. SUMMARY TRIALS 260 to 265 Cr.P.C.

Chapter XXII of the Cr.P.C. provides for general powers to
trial summarily various offences mentioned under section 260, Cr.P.C
while some of offences with special recommendation from Provincial
Government as mentioned in section 261, Cr.P.C.; both sections are
restricted to selected offences of minor nature from amongst Pakistan
Penal Code; and Magistrate could pass sentence of imprisonment in
such offences for a term not exceeding three months (Sec.262, Cr.P.C.).
However, Magistrate may come before some different statutes / special
laws where he may be required to try the offences of the laws
summarily and the procedure would stand same as in chapter XXII of
the Cr.P.C.
Trials are regular and Summary. The object is to avoid
wastage of time but the object is never to defeat the ends of justice.
The Complainant as well as the accused both have their rights which are
given to them by law and those rights are to be respected and fully
protected without causing denial of the right of each other.
The procedure laid down says that in such cases where no
appeal lies, 263 Cr.P.C. Magistrate need not record evidence of the
witnesses or frame a formal charge but he may include the particulars:
(a) the serial number, (b) the date of the commission of the offence; (c)
the date of the report or complaint; (d) the name of the complainant (if
any); (e) the name, parentage and residence of the accused; (f) the
offence complained of and the offence (if any) proved, and in cases
coming under clause (d), clause (e) clause (f) or clause (g) of sub-
section (1) of section 260 the value of the property in respect of which
the offence has been committed. (g) the 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 therefor, (i) the sentence or other final
order, and, (j) the date on which the proceedings terminated.
Where under section 264 Cr.P.C. of summary cases, an appeal lies,
charge should be formally framed with other formal procedure and case
should be disposed of by judgment.
 In summary cases recording evidence is not necessary only gist
suffice
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 In summary trial where appeal lies the Magistrate must preserve

the original notes of evidence so that the Appellate or Revisional
Court may see the error
 In summary trial (where no appeal lies) only substance of the
witnesses’ evidence is to be stated generally and not a separate
record of each witness is to be kept
 Provisions of sections 191, 243, 342 and 250 apply to summary
trials equally with ordinary trials.

N. STATE AND COMPLAINT CASE SIMULTANEOUSLY

PLD 1966 S.C 708 (Noor Elahi Case)

Majority view

 The complaint case is to be tried first.

 The witnesses in the list annexed with the complaint case shall be
examined by the court as PWs.
 The witnesses in the challan case shall be examined by the court as
CWs u/s 540 Cr.P.C.
 The opportunity to cross examination shall be given to both the
parties.
 In case of conviction in complaint case:-
 The public prosecutor may consider that whether he should withdraw
the state case under section 494 or not.
 In case of acquittal in complaint case.
 If the public prosecutor considers that the challan case has not been
seriously damaged by first trial in complaint case, the state case may
be taken up for trial.

(PLD 1986 S-C 737)

(Muhammad Dildar Malik V/s Tahir Mehmood, 1998 SCMR
652)
 Where the version in the complaint case and challan case are
different, the sets of accused also not being the same, the decision in
Nur Elahi’s case would be more attracted.
Mst. Haleema Bibi V/s The State
2008 YLR 1144 i.e:-
 If challan case and complaint case have been filed by two different
parties containing the complaint case and the challan case are to be
held simultaneously and side by side and not one after the other.