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PART B -- TRIAL OF SESSIONS CASES
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[1. Introductory.- For the expeditious disposal of Sessions cases, Sessions Judges should reserve for each Sessions case several days for trial, preferably in consultation with the prosecutor and the defence counsel.
2. Reservation of several days for possible Sessions cases.- The trial of a Sessions case shall, as a rule, be held from day to day and unless there be compelling reasons for adjournment, there should be no adjournment.
3. Priority of Sessions' cases over other work.- The instructions contained in paragraph 5-A of Chapter 1, Part A of this Volume regarding postponement of cases in order to avert the arrest of other accused in the case apply mutatis mutandis to Sessions cases.
4. Prompt disposal of Sessions' cases.- Cases of flagrant disregard of the day to day hearing rule have come to the notice of this Court. It has been noticed that in some cases, Sessions trial have, after their commencement, taken months, in some cases years, to conclude. The High Court takes a very serious view of this practice and requires:
(i) explanation to be furnished in monthly Sessions statements of any cases pending over six months; and
(ii) explanation for every case in which trial has commenced but has not concluded during the days reserved for them; this explanation shall mention the date of the commencement of the trial and reason for each adjournment.]
5. ***[Omitted].
6. ***[Omitted].
7. ***[Omitted].
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[8. Examination of record.- On receipt of the record the case will be registered and when the date and place of the trial have been fixed a memorandum should be made on the calendar and due notice thereof sent to all concerned.
8-A. Under section 14-A of the Arms Ordinance 1965, an offence under section 13 or section 14 is now triable by a Magistrate of the First Class.
The intention of the law appears to be that even the possession of illegal arms forming part of the same transaction with the graver offence, as for instance, the possession of the illegal weapon at the time of murder should be tried by Magistrates.
In such cases the Magistrate should record evidence, but should preferably reserve judgment till the decision of the Sessions case.
9. Sessions Judge may summon any witness not included in the Calendar.- The Police diaries should be examined to make sure that material witness has not been left out. If the record is carefully examined on its receipt, Sessions Judges will be able to summon any witness not included in the calendar whom they may consider material and thus avoid the necessity of an adjournment, which is extremely inconvenient in Sessions trials.]
10. [Omitted].
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[11. Charge to be read out. Mode of recording evidence.- The names and description of the counsel appearing for the prosecution and defence should be noted on the first page of the record of trial. If the accused is unrepresented the fact should be noted. The record should show every examination and re-examination of each witness; and if the accused does not avail himself of the liberty to cross-examine, a note should be entered to that effect.]
12. ***[Omitted].
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[13. Papers to be transferred to Sessions record.- The various papers in the Sessions record should be compiled in the following order:-
1. Order Sheet.
2. Covering Sheet.
3. Opening sheet.
4. Charge Sheet.
5. Chemical Examiner's report.
6. Serologist's report.
7. Medical evidence.
8. Deposition of prosecution witness.
9. Statement under section 342 Cr.P.C. of the accused.
10. Defence sheet of the accused including his statement under section 340(2) Cr.P.C.
11. Judgment
12. List of documentary exhibits.
13. Documentary exhibits.
14. In preparing records in Sessions cases and in copying judgments, the following instructions should be strictly followed, namely -
(1) the record of evidence of each witness shall be numbered;
(2) the evidence should usually begin with that of the medical witness;
(3) confessions and other previous statements of each accused person shall immediately precede his or her statement in the Court of Session;
(4) the pages of the original judgment should be noted in the margin of each copy of a judgment issued and the pages of copies of the record of evidence of witnesses should be similarly noted.
14-A. Medical evidence.- (1) The medical evidence should be recorded with care and precision in the English language and should be translated into Urdu and read over to the accused in order that he may have an opportunity to cross-examine.
(2) The Court recording medical evidence should not content with merely taking down, in the presence of the accused, the statement of the Medical Officer but should, if necessary, examine him further in view of the detailed instructions contained in Chapter 18 of this Volume titled "Medical Legal Work" in which suitable questions to be put to Medical Officers in certain classes of cases are suggested.
14-B. Inquest reports.- In all cases in which the medical evidence is that the body of a person alleged to have been murdered reached the witness in a state of decomposition, evidence of the condition of the body when first discovered should be recorded and formal proof obtained of the "inquest report" "Surat-e-Hal" when there is one. In almost all cases of homicide, it is desirable that the police officer who first viewed the body and prepared the "surat-e-hal" shall be required to put in and prove that document.
14-C. Other circumstances to be proved.- Circumstances connected with the finding of the body, or of the property or with the state of locality, or the department etc. of the accused, must be proved by the evidence of the witnesses who saw what they described, or by the police officer who conducted the investigation.
14-D. Identity of body and clothes.- In cases of homicide evidence should be taken to identify the body of the person killed, to prove the custody of the body from the moment it is discovered to the time of its delivery to the Medical Officer for post-mortem examination, and to show that it has not been interfered with during its conveyance from the scene of death to the place of examination. Clothes and ornaments found on the body should similarly be identified by proper witnesses produced in Court and their removal from the body and custody should be proved.
14-E. Custody of other articles.- Similar care is often required in tracing the custody of prisoner's substances, personal food, blood-stained clothes etc. The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the various stages of the inquiry if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the Chemical Examiner. The person who packs, seals and despatches such articles should invariably be examined.
14-F. Every article to be produced.- Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses.
14-G. Plans.- (1) In all cases where a plan of the locality is material, such a plan should be sent up with the record. It must, however, be remembered that plans as well as police reports are not evidence until they have been sworn in Court by the persons who prepared them or who of their personal knowledge can depose to their correctness.
(2) In all cases where the decision turns upon topography or the position and construction of a dwelling, a plan, drawn to scale accurately representing the place or dwelling should be proved by the person who prepared it and it should be marked and recorded as an exhibit.
14-H. Exhibits.- All exhibits should be marked with a letter or numbers. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as "admitted or not admitted". If the exhibits have already been assigned numbers by the police, that series of numbers should be mentioned to avoid confusion.
A printed label should be affixed or attached to each exhibit containing the following particulars:-
(i) Number of exhibit
(ii) Produced by
iii) Admitted(Signature of Court)
(iv) Date
(v) Case
(vi) Description of exhibits.
The Sessions Judge, should see that these entries are properly made.
15. Use of previous statements of witnesses.- In using previous statements before the police to discredit witnesses, careful attention should be paid to the provisions of section 162 of the Code of Criminal Procedure and section 140 of Qanun-e-Shahadat, 1984 (Also see Chapter 12 of this Volume, Police Diaries, etc.)]
16. ***[Omitted].
17. ***[Omitted].
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[18. Procedure.- The procedure to be observed by the High Court and the Courts of Sessions in the trial of cases triable by them is contained in Chapter XXII-A of the Code of Criminal Procedure.
19. Public prosecution.- In every trial before a Court of Session, initiated upon a police report, the prosecution is to be conducted by the Public Prosecutor. (Section 265-A Cr.P.C.)
20. Procedure in case of previous conviction.- In a case where, by reason of a previous conviction, the accused has been charged under section 221 of the Code, the court after finding the accused guilty of the offence charged and recording a conviction, shall record the plea of the accused in relation to such part of the charge; and if the accused admits the previous conviction, the court may pass a sentence but if the accused does not admit it, the court may take evidence in respect of the previous conviction, record a finding and then pass a sentence according to law. (Section 265-I Cr.P.C).
21. The statement of a witness duly recorded under section 164, if made in the presence of the accused and if he had notice of it and was given opportunity of cross-examination, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Qanun-e-Shahadat, 1984 (section 265-J Cr.P.C.).]
22. ***[Omitted].
23. ***[Omitted].
24. ***[Omitted].
25. [Omitted].
26. [Omitted].
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[27. Judgment should be pronounced in open court by Sessions Judge.- The judgment should be pronounced by the Sessions Judge either immediately after the trial or on some future day of which due notice must be given to the parties or their pleaders. Sentence should be passed in open Court and then explained to the prisoner. Section 367 (1) of the Code of Criminal Procedure clearly lays down that a judgment shall be dated and signed by the presiding officer in open Court at the time of pronouncing it. Under section 17(4) of the Code, the Sessions Judge may, for the reasons given, make provision for the disposal of any urgent application by the Additional Sessions Judge, but there is no authority for the proposition that the power given to a Sessions Judge under section 17(4) extends to delegation of the duty to pronounce judgments. Sessions Judges must arrange to pronounce judgment in original cases before proceeding on leave if a delay in pronouncing judgment is likely to cause hardship to any person under trial.]
28. Judgment to be written before announcing.-- The judgment must always be written and delivered before sentence is pronounced. It is illegal to pass sentence at the termination of a trial and to postpone the writing of the judgment to a future occasion. All cases must continue to be shown on the pending file until a judgment and sentence are written and delivered.
29. Copy to be forwarded to District Magistrate.-- In cases tried by a Court of Session, the Court shall forward to the District Magistrate a copy of the judgment in addition to the copy of the finding and sentence required by section 373 of the Code of Criminal Procedure.
Where there has been a complete acquittal of all or any of the accused by a Court of Session, the Sessions Judge should, at the time of pronouncing the judgment, also forward a facsimile copy thereof to the District Magistrate, in whose jurisdiction the trial was held, so as to enable him to consider whether or not an appeal against acquittal is to be recommended. The stenographer should be required to prepare an extra carbon copy, for this purpose, while transcribing the judgment dictated to him by the Sessions Judge.
In case in which an accused charged with murder receives a sentence for *[imprisonment] for life or is tried for an offence under section 302, Pakistan Penal Code, but is convicted under section *[318], of the said Code, the Sessions Judge should follow the same procedure.
30. Documents to be forwarded to High Court when sentence requires confirmation.-- If the sentence is one which has to be referred to the High Court for confirmation, under section 374 of the Code of Criminal Procedure, the record of the Court of Session, with the exception of the final judgment, should be submitted in original. In addition to the type-written copy of the judgment which takes the place of the original (retained in the Court of Session) two extra type-written copies will be forwarded for use in the High Court together with type-written copies of the following documents on the Sessions record:-
(1) First report at police station (if any) in Urdu only.
(2) Statement under section 364, Criminal Procedure Code.
(3) Examination under section 364 by the Magistrate.
(4) ***[Omitted]
(5) Record of evidence in Court of Session with any further examination under section 364, Criminal Procedure Code, and altered charge if any.
(6) Material documentary evidence, if any.
(7) ***[Omitted]
Note:- Photographs and bahis should be treated as "documentary evidence" and should be marked with letter like other documents, and should always be sent to the High Court.]
31. Reference to High Court *[shall] be in prescribed form.-- The copy of the final judgment shall be signed by the Sessions Judge himself and not by the clerk or other officer of the Court on his behalf, as certifying such copy to be a true copy. The reference to the High Court for confirmation of the death sentence should be made in the prescribed form.
32. In death sentence accused *[shall] be informed about period for appeal.-- In all cases in which a person is sentenced to death, the Sessions Judge shall as directed in section 371(3) of the Code of Criminal Procedure, *[inform] the condemned man that he must file his appeal within seven days.
32-A. ***[Omitted].
33. Sessions Judge to ask accused and promptly deliver if he requires a copy of judgment.-- In order to prevent delay, the Sessions Judge should, on delivering judgment, ask the accused if he desires to have a copy or translation of the judgment, to which he is entitled under section 371*[(3)] of the Code for the purposes of appeal. The Sessions Judge should record in the judgment that this has been done, and when necessary, should furnish the copy or translation without delay.
34. Endorsements on copy sent to accused.-- The copy or translation of the judgment required by the accused should be sent to him by the Sessions Judge with the following endorsements, namely-
(a) the date of the despatch of the copy or translation of the judgment;
(b) notice that the appeal must be presented within seven days from the date of sentences (exclusive of that date and of the time which has been spent in supplying him with the copy of the judgment) mentioning the latest dates on which his appeal can be filed;
(c) intimation that, on the expiry of seven days, the record will be sent to the High Court, and that the hearing of the reference with a view to confirmation of sentence (under section 374 of the Code) will take place about one month after despatch of the copy.
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[35. Record to be sent to High Court soon after period of appeal has expired.- When the condemned person has taken a copy of the judgment, the record should not be forwarded to the High Court until after the expiration of the total period within which his appeal can be legally filed, i.e., a period of seven days from the date of sentence plus the time spent in supplying the copy.]
35-A. ***[Omitted].
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[36. Notice to accused and Advocate General on receipt of record.- In the High Court immediately on receipt of the record, notice shall issue to the accused in jail informing him that the proceedings will be considered, with a view to an order of confirmation being made under section 374 of the Code of Criminal Procedure and the appeal (if any) be heard, on date to be entered in the notice. Similar notice will also be issued to the Advocate General when an appeal is preferred. Unless records are promptly submitted, it will not be possible to carry out the above standing order, and Sessions Judges are accordingly required to pay strict attention to the instructions here given.]
37. Copy of High Court judgment to be sent to Sessions Judge.-- After the sentence has been confirmed or other order has been made by the High Court, the Registrar will return the record, with a duplicate or an attested copy of the order under the seal of the Court, to the Sessions Judge, who will take the steps prescribed by section 381 of the Code of Criminal Procedure to cause the sentence or order to be carried into effect.
38. Record to be sent to Government when death sentence has been confirmed.-- The record of every case, as prepared for the use of the High Court, in which the sentence of death has been confirmed by the High Court, should as soon as orders have been passed confirming the death sentence, be forwarded to the Provincial Government, together with the Court's order thereon, and the English file of the Sessions Court.
39. Date for execution of death sentence.-- In issuing warrants for the execution of sentences of death, Sessions Judges should as directed by Government fix a date for the execution of the sentence that is not less than fourteen or more than twenty-one days from the date of the issue of the warrant.
40. Record to be sent to Government when a woman has been sentenced to *[imprisonment] for infanticide.-- ***[...] In every case in which a sentence of *[imprisonment] for life is passed on a woman for the murder of her infant child, and the sentence is not appealed against, the record of the case shall, after the expiration of the period allowed for appeal, be forwarded to the High Court for submission to Government, with a view to the consideration of the question whether any commutation or reduction of the sentence should be allowed.
41. Weapons to be sent to the High Court- (i) All weapons with which injuries are alleged to have been inflicted by the accused, whether the nature of the injuries is in dispute or not, shall be forwarded to the High Court when a case is referred by a Sessions Judge for confirmation of a sentence of death. In order to secure that this will be done, the Sessions Judge shall record a note at the foot of his judgment stating what weapons are to be forwarded to the High Court and he should see that they are forwarded when the records are despatched.
(ii) In a case in which a convicted person is called upon to show cause why his sentence should not be enhanced to death similar weapons are required in the High Court, but will not be forwarded to the High Court until the High Court calls for them.
42. Blood-stained clothes sent to High Court.-- (i) All garments of an accused person which are proved to have been stained with human-blood and have been made exhibits shall be forwarded along with the record to the High Court when a case is referred by a Sessions Judge for confirmation of a sentence of death. In order to secure that this is done, the Sessions Judge shall record a note at the foot of his judgment stating what garments are to be forwarded to the High Court.
(ii) In a case in which a convicted person called upon to show cause why his sentence should not be enhanced to death similar garments are required in the High Court, but will not be forwarded to the High Court, until the High Court calls for them.
43. Exhibited articles- Exhibited articles, which are not documents and are not referred to in paragraphs 41 and 42 of this Chapter, should not be sent to the High Court, unless the High Court calls for them, or unless the Sessions Judge considers that a particular exhibit will be required in the High Court, in which case he should record a note at the foot of his judgment that the exhibit should be forwarded to the High Court in the event of an appeal.
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