Reports of Pakistan Law Commission

  

The Pakistan Law Commission was setup in 1979 as a permanent institution for the reform and modernization of the legal system of Pakistan. The Commission is headed by the Chief Justice of Pakistan and is comprised of 11 members including Chief Justice, Federal Shariat Court, 4 Chief Justices of the provincial High Courts, Chairman, Council of Islamic Ideology and Secretary, Law and Justice Division. The Federal Government, on the recommendations of the Chairman, appoints the remaining 4 members.

 The Commission is a statutory institution with broad functions including the reform/modernization of laws, both federal and provincial as well as substantive and procedural, reform in the administration of justice, improving the system of legal education, adopting simple and effective procedure to ensuring inexpensive and speedy justice and simplifying laws for easy comprehension and devising step to make society law-conscious. Furthermore, the Federal Government or Provincial Government may refer to the Commission any matter relevant to its function for opinion and advice.

 The Government has provided the Commission a permanent Secretariat, headed by a Secretary and comprising of other research officers and administrative staff. In the Secretariat, there are 2 posts each of Joint Secretary, Deputy Secretary and Research Officer. The supportive staff comprise of 44 personnel.

The Commission has so far approved 31 reports on different subjects and submitted the same to the Government for implementation. A brief description of such reports follows:

 

Report No 1:            Uniform Court Fee for Claims under Fatal Accidents Act 1855

 

The Commission examined hardships faced by the legal heirs of victims of accidents in recovery of compensation or damages under the Fatal Accidents Act 1855 and suggested a minimum uniform court fee in respect of proceedings instituted for the purpose.

 

Report No 2:            Recovery of Compensation under the Fatal Accidents Act 1855

 

Following a reference from the Federal Government, the Commission examined the Fatal Accidents Act 1855, Motor Vehicle Act 1939, Insurance Act 1938, Criminal Procedure Act 1898, West Pakistan Vehicles Ordinance 1965 and the Code of Civil Procedure 1908 and suggested appropriate amendments thereto providing for increase in sentence and fine in respect of traffic-related offences and rationalizing the sums payable as compensation on death or injury.

 

Report No 3:                        Establishment of Courts of Qazis

Following a reference from the President of Pakistan, the Commission examined the proposed draft, the Establishment of Courts of Qazis Ordinance 1981 and forwarded to the Government its detailed comments thereon.

 

Report No 4:                        Law of Evidence

Following changes introduced in the legal structure in the country the introduction of Hudood laws, the Commission examined the Law of Evidence with a view to suggest suitable amendments thereto to make it in accord with the present-day requirements and conform with the tenets of Islam.

 

Report No 5:                        Rent Restriction Laws

The Commission, having taken notice of general complaints about inordinate delays in disposal of rent cases and implementation of courts’ orders as well as the gaps/loopholes in rent laws, suggested to the Government a model law entitled Rental Premises Ordinance 1982 for consideration.

 

Report No 6:                        Law of Evidence

The Commission received from the Government a proposed draft, ‘Law of Evidence Ordinance 1982, prepared by the Council of Islamic Ideology for examination and forwarded its views on the subject The Commission opposed the adoption in the said draft. It took the view that the proposed Ordinance will not be able to cater for all legal requirements and may cause inordinate delays in court proceedings. Thus, the Commission proposed to the Government that its own earlier report on the subject might be adopted.

 

Report No 7:            Elimination of False Evidence from the Judicial System

As desired by the then President of Pakistan, a meeting of the Commission presided over by him on 26 January 1983, examine the issue of eradication of false evidence and perjury from the judicial system of the country. Following a detailed examination, the Commission recommended certain persuasive and as well as preventive measures, through appropriate penal provisions, in the criminal law to eradicate the menace of perjury.

 

Report No 8:            Elimination of False Evidence from the Judicial System

In this report, the Commission examined certain flaws in the Criminal Procedure Code 1898 in respect of perjury and suggested appropriate enhancement in penalties prescribed for the offence. The Commission also examined Section 497 of the Criminal Procedure Code relating to appeals and suggested appropriate amendments thereto. The Commission further suggested a new form of Oath through amendments in the Oath Act 1873.

 

Report No 9:                        Draft Evidence Ordinance

Following a reference from the Government, the Commission examined the draft Evidence Ordinance 1983, sent to it for comments, and suggested appropriate modifications/changes thereto.

Report No 10:                      Offences Against Human Body

Following a judgment by the Federal Shariat Court declaring certain provisions of the Pakistan Penal Code, in respect of offences affecting the human body, contrary to the injunctions of Islam, the Government prepared the Enforcement of Qisas and Diyat Ordinance 1984 and submitted the same to the Commission for consideration. The Commission having examined the issue, submitted its response on various provisions contained therein.

 

Report No 11:                      Filling a Legal Vacuum

Following a judgment by the Supreme Court of Pakistan in 1992 carrying a direction that any vacuum in existing law shall be filled through ‘common Islamic law’, the Commission examined the issue and forwarded its recommendations to the Government. The recommendation provided for amendment in the General Clauses Act 1897 to the effect that existing legislative gaps, voids, vacuum should be filled by the common Islamic law on the subject.

 

Report No 12:                      Reformation of Family Laws

In this report, the Commission examined Family Court Act 1964 and the Dowry and Bridal Gifts (Restriction) Act 1976 and submitted appropriate amendments thereto. In the former Act, the Commission suggested appropriate amendments providing for designating separate courts for trial of family suits, consolidating various causes and claims into single case, providing for maintenance of wife during the proceedings for dissolution of marriage. In the Bridal Gifts (Restriction) Act 1976, the Commission suggested appropriate amendments for rationalizing the sums fixed as marriage expenses, dowry amount, recovery of dower and bridal gifts, etc. The Commission further suggested measures for eliminating extravagance in marriage functions.

 

Report No 13:          Reformation & Modernisation of Service Laws (Part I)

In this report the Commission suggested in the Public Service Commission Ordinance 177 with a view to making this body more independent and improve it’s functioning.

 

Report No 14:                      Rent Restriction Laws

In this report, the Commission examined the Central and provincial rent restriction statutes and suggested appropriate amendments thereto providing for an effective enforcement of rent laws, removing anomalies in various provincial laws and expeditious disposal of rent cases by of courts.

 

Report No 15:     Enhancing the Powers of Ombudsman (Wafaqi Mohtasib)

 

The Commission examined the President Order No 1 of 1983 with regard to the establishment of the Office of Ombudsman (Wafaqi Mohtasib) and suggested appropriate improvements thereto to make the Office more effective and improve its performance.

 

Report No 16:          Scheme for Redress of Public Grievances

In this report, the Commission suggested a mechanism whereunder public grievances and complaints pertaining to public institutions or functionaries may be addressed and resolved, initially through the respective public agency or department and ultimately through the Office of Ombudsman.

 

Report No 17:          Amendment in Criminal Procedure Code

In this report, the Commission suggested amendments to the Criminal Procedure Code 1898, providing, inter alia, for the authorization to a magistrate to record First Information Report in case of refusal by the police, obliging the police to inform the family members of the arrested person, the right of appeal would not abate on the death of the convict and effective enforcement of penal provisions relating to perjury.

 

 

Report No 18:          Extension of Jurisdiction of Service Tribunals to Employees of Statutory Corporations

                                   

Through this amendment the Commission proposed the redress of grievances of employees of Federal and provincial statutory corporations through the Service Tribunals.

 

Report No 19:          Eradication of Qabza Group

This report contains a draft bill, ‘Eradication of Qabza Group Activities Bill 1993’ providing therein for stringent penal sentences through summary trial of the activities of anti-social or criminal elements known as Qabza Group who deprive innocent citizens of their property by taking illegal possession thereof.

 

Report No 20:          Prevention of Unfair Means in Examinations

In this report, the Commission through a comprehensive draft, ‘Examination (Prevention of Unfair Means) Bill 1993’ sought to prohibit the use of mal-practices in examinations by prescribing appropriate penalties for the examination staff as well as students who resort to illegal practices or use unfair means in examinations.

 

Report No 21:          Improving the Performance of Pakistan Law Commission

This report contains the Commission’s recommendations for amendments in the Law Commission Ordinance 1979 providing, inter alia, for enhanced composition and measures for its improved performance.

 

Report No 22:          Criminal Justice System

The Commission examined the system of criminal justice system and submitted exhaustive recommendations, both legislative and administrative, for clearing the backlog of criminal cases and ensuring speedy trial.

 

Report No 23:          Jail Reform

The Commission had an in-depth study of the prison system in the country and suggested to the Government various measures for reforming the law relating to prison and the rules framed thereunder (Jail Manual), so as to improve the living conditions in jail premises and offer relief to good-conduct prisoners .

 

Report No 24:          Reformation & Modernization of Laws (Part II)

With a view to redressing the grievances of civil servants in respect of promotion to higher grades, the Commission suggested amendments to the Civil Servants Act 1973 and the Service Tribunals Act 1973 providing for the right of representation to the Service Tribunal.

 

Report No 25:          The Role of Pakistan Bar Council in the Promotion of Human Rights

The Commission recommended amendment to the Legal Practitioners & Bar Council Act 1973 providing for the enhanced role of the bar councils/ associations in the promotion and protection of human rights of citizens.

 

Report No 26:          Administrative Procedures Code

In this report, the Commission submitted a draft Administrative Procedures Act for the Federal Government for some transparency and so as to ensure accountability of public servants.

 

Report No 27:          Legislation pertaining Maternity Benefits

In this report the Commission examined relevant maternity benefit laws in the country and suggested appropriate amendments thereto providing therein, inter alia, for rationalizing the sums payable as maternity benefits to working women and enhancing the penalties prescribed for breach of law.

 

Report No 28:          Elimination of Child Labour

In this report, the Commission considered the issue of child labour in the country, particularly in the context of the country’s obligation under the UN Convention on the Rights f Child 1989 and made appropriate legislative and administrative measures for elimination of child labour and provision of improved terms and conditions of service to workers.

 

Report No 29:         Elimination of Double Jeopardy in Drugs-related Offences

In this report, the Commission examined certain complaints in respect of awarding double punishments to convicts under drugs-related offences, and suggested appropriate amendments to the Customs Act 1969 and Prohibition Order 1979 for bringing the provisions of these laws in consonance with the newly enacted Control of Narcotics Substances Act 1997.

 

Report No 30:          Reform of the Juvenile Justice System

In this report, the Commission recommended administrative as well as legislative measures for effecting improvements to the juvenile law of the country so as to bring it in conformity with the country’s obligation under the UN Convention on the Rights of Child 1989, providing therein, inter alia, for the designation of separate juvenile courts, fixing 16 years as the uniform age for trial by juvenile courts, granting of bail to children in custody and employing alternative methods e.g. restitution, financial compensation and releasing child on probation, etc instead of trial/detention.

 

Report No 31:          Amendment in Section 145 of the Criminal Procedure Code

 

With a view removing an ambiguity in Section 145 of the Criminal Procedure

Code 1898, which provision has been interpreted differently by different courts,

the Commission suggested an appropriate amendment thereto, with a view to

removing the said defect and ensure the speedy disposal of cases in courts.

 

Report No 32:      The Small Claims and Minor Offences Courts Ordinance 2001

The Government, in consultation with the High Court, shall establish the small claims and minor offences courts at the district/tehsil level. A civil judge-cum-judicial magistrate to be designated by the respective High Court shall man these courts. The Court shall try specified civil suits of the value of one hundred thousand rupees or less, which value can be appropriately varied by the respective High Court, in keeping with the objective conditions of a particular district/tehsil. The Court shall also have jurisdiction to decide offences under the Pakistan Penal Code 1860, where punishment prescribed does not exceed imprisonment for upto 3 years or fine or both. A simple, more specific and expeditious procedure for process serving has been prescribed in order to finalise the case for trial. In appropriate cases, the Court shall persuade the parties to reach an amicable, out-of-court settlement, of their dispute, and in case any such settlement is arrived, the same shall be enforced as a decree or order of the Court. For ADR, each Court shall maintain a panel of arbitrators, mediators and conciliators, prepared by the respective High Court in consultation with the District Judge and President of the local bar association. In the event of failure of ADR proceedings, the Court shall proceed to determine the suit through prescribed summary procedure, ordinarily to be decided within 60 days. In criminal cases, however, the Court shall conduct regular trial and follow the procedure prescribed in the Code of Criminal Procedure 1898 and Qanoon-e-Shahadat Order 1984. With a view to expedite the proceedings, the Court shall have power to enforce the attendance of any person, compel the production or discovery of any document, carry out local inspection and issue commissions for examination of witnesses or documents. The parties shall be required to appear before the Court on specified date and time and also ensure the attendance of their witnesses. In case of deliberate default on the part of plaintiff, the Court may dismiss the claim/suit. Similarly, in case of deliberate default on the part of defendant, the Court may proceed ex parte. Any such order of the Court may be set aside subject to good and valid cause shown. On the conclusion of the trial, the Court shall execute the decree through simplified procedure. Appeal against the decree/order shall lie to the District & Sessions Judge. Provided that there shall be no right of appeal against a consent decree. The High Court is empowered to amend the Schedule, thereby adding to or deleting from any matter to the Schedule. Furthermore, the High Court may, from time to time, make rules for regulating the procedure of the Court.

 

Report No 33:      The Family Courts (Amendment) Ordinance 2001

                                   

A wife seeking dissolution of marriage shall also claim in the plaint her dower, dowry, personal property, maintenance, custody of children and right of visit to meet children to avoid multiplicity of suits. A husband while defending a suit for dissolution of marriage may claim decree for restitution of conjugal rights and no separate suit shall lie for it. A defendant wife may claim for any right to which she is entitled to claim in reply to suit for restitution of conjugal rights by the husband. No document can be relied upon by any party unless it has a relevancy to the claim or defence made in the plaint or written statement. In a suit for dissolution of marriage on the sole ground of ‘Khula’ the Court shall pass decree on restoration of marriage benefits as determined by the Court. The Family Court shall dispose of all family suits within a period of four months. The non-appealable limit of decrees is enhanced from rupees fifteen thousand to rupees thirty thousands in respect of dower and rupees five hundred to rupees one thousand per month in respect of maintenance. A Family Court may pass an interim order to grant maintenance or to preserve and protect any property to secure the enforcement of decree and no appeal or revision shall lie against it. An appeal against decree of maintenance by the family Court is exempted from payment of Court fee. The punishment of fine on contempt of Family Court is enhanced from rupees two hundred to rupees one thousand. A Family Court is empowered to issue Commissions to examine any person, to make a local investigation or to inspect any property or document. A Family Court shall have all the powers of Judicial Magistrate of the First Class to try minor criminal offences where one of the spouses is victim of offence committed by the other. The High Court may, with the approval of the Provincial Government, make rules for the effective functioning of the Family Court and to add any other family matter to the Schedule.

 

Report No 34:          Conferring the Powers Under Section 491 (1) (a) & (b) of the Code of Criminal Procedure 1898 on the Court of Session

                                   

With a view to putting an end to abuse or arbitrary exercise of power/authority and so as to providing access to justice at the gross roots level, the draft amendment seeks to empower the Sessions Judge/Additional Sessions Judge, at the district level, to entertain and decide petitions of the nature of habeas corpus, thereby providing expeditious relief to aggrieved persons. Needless to say, this measure will save the people from travelling to provincial headquarters for approaching the High Court and paying huge sums of money to High Court lawyers. This way, people will get relief quickly, cheaply and without much hassle. The Sessions Court will exercise this power concurrently with the High Courts as the High Courts possess such power, both under the Code of Criminal Procedure 1898 and Article 199 of the Constitution.

 

Report No 35:            Amicable Settlement of Disputes

With a view to check the tendency of filing false/frivolous cases, through an amendment in the Code of Civil Procedure 1908, all the civil courts are obligated to thoroughly scrutinise the pleadings of the parties with a view to dismiss, in limine, false, fictitious and frivolous cases, and further to persuade the parties to reach an amicable settlement of their disputes through conciliation, mediation, arbitration or any such other appropriate mode of alternate dispute resolution (ADR). The purpose is to resort to amicable settlement of disputes, which is embedded in our culture and recommended under the injunctions of Islam. This measure will have a positive impact on the society for moving away from confrontational mode to conciliatory framework. The ADR is working successfully in several jurisdictions of the developed world. It is the endeavour of the Commission to make this mode successful in our judicial system.  

 

Report No 36:            Enhancement of Pecuniary Jurisdiction of Civil Courts

 

The High Court is empowered to fix Pecuniary Jurisdiction of Civil Judges under Section 9 of  the West Pakistan Civil Courts Ordinance 1962. The Pecuniary Jurisdiction of Qazi and Majlis-e-Shura under the Balochistan Civil Disputes (Shariat Application) Regulation 1976, and the Qazi under the Dastur-ul-Amal Diwani Kalat is fixed by their respective laws. The present pecuniary jurisdiction of civil judges fixed by their respective High Courts of the four provinces and of the Qazi and Majlis-e-Shura under their respective laws has been examined by the Commission and noted that the current Pecuniary ceiling have not been kept pace with inflation and the rising costs of property/goods which has resulted in substantial increase in the valuation of suits. This phenomenon has resulted in increased pendency in the court of Civil Judge 1st Class, and original civil jurisdiction of High Court of Sindh at Karachi. Therefore, the Commission recommended to enhance the pecuniary jurisdiction of  Civil Judge IInd Class and Civil Judge 3rd Class as will as Qazi Courts established in the Tribal Area Balochistan.  

 

Report No 37:      Enhancement of Pecuniary Appellate Jurisdiction of District Courts.

 

The pecuniary appellate jurisdiction of District Court  is fixed under Section 18 of the W.P. Civil Court Ordinance 1962. From time to time the  pecuniary    appellate jurisdiction of District Court has been enhanced in the four provinces. But due to constant devaluation of rupee and high rate of inflation the value of the property, goods etc. have been  increased  manifold which has caused pendency  of appeals in the High Courts. The Commission noted this situation and recommended to enhance the Appellate Jurisdiction of the District Courts to reduce the burden of pendency in the High Courts. 

 

Report No 38:      Enhancement of Pecuniary Original Jurisdiction of District Courts    

                                 Karachi.

 

The pecuniary original jurisdiction of District Courts all over the country is without limit under Section 7 of the W.P. Civil Courts Ordinance 1962 except the District Judge Karachi whose pecuniary civil original jurisdiction is rupees five lac. The High Court of Sindh has proposed enhancement of pecuniary original jurisdiction of District Judge Karachi to rupees thirty lac in view of the huge pendency of the suits on the original civil jurisdiction of the Sindh High Court. The Commission noted that the frequent devaluation of rupees and high rate of inflation have increased the value of subject matters of the suits brought to the courts at Karachi by which number of institution of original suits have relatively been increased in the High Court and recommended enhancement of the pecuniary jurisdiction of District Judge Karachi rupees 30 lacs by making necessary amendments in the Sindh Civil Court Ordinance 1962.

 

Report No 39: Enhancement of Punishments of Fine under the Pakistan Penal Code

 

The Commission considered the proposal of rationalizing and enhancing the quantum of maximum punishment of fines prescribed for various offences under the Pakistan Penal Code 1860 and agreed in view that these fines were fixed a long time ago and with the passage of time have lost deterrence by the devaluation of currency and inflation. It emphasized that laws need to be reviewed periodically to ensure that they remain relevant and effective in meeting challenges and realizing their objectives. The Commission approved the Secretariat proposal for rationalizing the amount of fines prescribed under various sections of the Pakistan Penal Code to restore the deterrent effect of the law and in keeping with the nature, severity and prevalence of the various offences, recommended three-fold enhancement of fine in respect of 52 offences of the Pakistan Penal Code, alongwith a consequential amendment to the Second Schedule of the Code of Criminal Procedure.

 

Report No. 40 Amendment of Sections 32, 260 and 261 of the Code of Criminal            

                             Procedure 1898

 

The Commission examined the proposal of amendment in Section 32 of the Cr. P.C. to enhance the jurisdiction of various classes of the Magistrates for imposing fine as provided in section 32 of the Code of Criminal Procedure, 1898 which was  fixed  long ago and lost its deterrence, therefore, the Commission approved a three-fold increase of the present fines to be imposed by Magistrates as follows:-

 

1.

Courts of Magistrates of the First Class.

 

The prescribed amount of fine “fifteen thousand rupees” be enhanced to “forty five thousand rupees”.

2.

Courts of Magistrates of the Second Class.

The prescribed amount of fine ”five thousand rupees” be enhanced to “ fifteen thousand rupees”.

3.

Courts of Magistrates of the Third Class.

The prescribed amount of fine “ one thousand rupees” be enhanced to “ three thousand rupees”.

 

The Commission further examined Section 260 of Cr. P.C which

provides that a Magistrate of First Class, if specially empowered by the Provincial Government, may try  in summary way various offences including the offences of theft under Sections 379, 380 or 381, dishonest misappropriation of property under Section 403, receiving or retaining stolen property under Section 411 or assisting in the concealment or disposal of property under Section 414 of the Penal Code, where the value of such property does  not exceed two thousand and five hundred rupees. This value of the property concerning offences attracting trial by way of summary manner was fixed long time ago and in view of constant increase of cost of property this valuation turned meager ousting  the cases of the property stolen or misappropriated earlier liable for summary trial from the summary Jurisdiction of the Magistrate. The Commission while considering proposal of the Secretariat found that the increase in value of the properties have been increased  more than double since it was earlier fixed therefore, the Commission approved an enhancement  of the value of such property from two thousand and five hundred rupees to ten thousand rupees.

 

Section 261 of the Code provides that the Provincial Government may on the recommendation of the High Court confer on any Bench of Magistrates invested with the powers of Magistrate of the Second or Third Class, to try summarily all or any of the following offences:-

                         offences against the Penal Code, Sections 277, 278, 279,285,

                         286, 289, 290, 292, 293,294,323,334,336,341,352,426,447

                         and 504;

The above Section still refers to Sections 323, 334 and 336 of the Penal Code which have been repealed and substituted by Section 337A(i), 337H(2) and 337L(2) therefore the Commission recommended to omit these sections from Sections  261 by substituting the new Sections as referred above.

 

Report No. 41 :       Trafficking in Children for use as Camel Jockeys and Engaging in    

                                    Hazardous Employment

 

The Commission noted that the last few years have seen enormous increase in trafficking in children from Pakistan. The tender age children are being exported  to Gulf States for camel riding with or without permission of their parents. Organized groups and other unscrupulous persons for the sake of earning money are indulging in such nefarious activities. However, the offence of trafficking of children is not provided in the Pakistan Penal Code to punish such persons. The Commission therefore, recommended to add Section 373-A  in the Pakistan Penal Code to provide punishment for the crime of child trafficking and using them in hazardous occupations.

 

Report No.42:    Addition of the Offence of Molestation to the Pakistan Penal Code 1860.

 

The Commission noted that a perusal of criminal statutes reveals that there is no specific law to deal with the abuse and  acts of molestation, therefore, it recommended to add a new Section 354-B to the PPC providing punishment for molestation with sexual motive.

 

Report No.43:     Right of Appeal Against Acquittal to Private Complainant under the Anti-terrorism Act 1997

 

In an ordinary criminal offence tried by a court of general criminal jurisdiction, a right of appeal besides the Government is provided to a private complainant against an order of acquittal passed by such court under Sub-section (2) of Section 417 of the Code of Criminal Procedure 1898. But no such appeal is provided under the Anti-terrorism Act 1997 to entitle any person who is a victim or legal heir of a victim and is aggrieved by the order of acquittal passed by an Anti-terrorism Court to file an appeal. The Commission recommended that such person may also be given a right of appeal against the order of acquittal passed by Anti-terrorism Court by amending the Anti-terrorism Act 1997.

 

Report No.44 :      Punishment of Bouncing of Cheques

 

The Commission considered the problem of cheques issued towards repayment of loan or fulfillment of obligation and observed that such dishonest and fraudulent practice hampers trade and commerce and vitiates the business environment, besides being a cause of tension between the parties and litigation in courts. The commission noted that such practice is already made an offence under the Financial Institutions (Recovery of Finances) Ordinance 2001 but it extends to cheques issued to financial institutions for repayment of loans only. The Commission recommended the addition of a new section to the Pakistan Penal Code 1860 as under:

“489-F Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which is dishonored on presentation, shall be punishable with imprisonment which may extend to three years and with fine, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honored and that the bank was at fault in not honoring the cheque”.

The Commission further resolved that through a consequential amendment in schedule II of the Code of Criminal Procedure 1898, the offence be made cognizable, non-bailable and compoundable.

 

Report No.45 :      Strengthening Capacity and Expanding the Functions of Pakistan

                                Law Commission

 

The Access to Justice Programme envisages certain amendments to the Law Commission Ordinance to strengthen its capacity and assign it some additional functions including the management of Access to Justice Development Fund (AJDF). A sum of US $ 24 million has been allocated as a seed money for the AJDF, and only the interest accrued on the said amount, is to be expended on provision of amenities to the subordinate courts, training at Federal Judicial Academy, improvement of legal education, legal empowerment, legal/judicial research and legal aid/assistance. The Asian Development Bank document (RRP: PAK 32023) Report and Recommendation of the President to the Board of Directors on Proposed Loans and Technical Assistance Grant to the Islamic Republic of Pakistan for the Access to Justice Program (November 2001) speaks of expanding the role and mandate of the Law Commission in promoting access to justice.The Commission agreed to the proposed  amendments to the Law Commission Ordinance to strengthen its capacity and assign it some additional functions and revised its composition. 

 

Report No.46 :           Amendment in Section 345 and the Schedule of the

                                      Code of Criminal Procedure 1898 to make the

                                      offence of Rioting Compoundable

 

The Commission considered an amendment in the Code of Criminal Procedure to make the offence of rioting under section 148 of the PPC compoundable, when linked to and committed jointly with other compoundable offences e.g. murder/hurt, etc. It discussed the proposal and observed that when the consequential major offences like murder/hurt are made compoundable, a linked/joint offence therewith namely rioting, where the punishment is only upto 3 years, may also be made compoundable, otherwise, any compromise reached between the parties cannot be effected and the trial of such offence has to be concluded. The Commission therefore, resolved that the offence of rioting by an unlawful assembly should be made compoundable, only if jointly committed with other compoundable offences.

 

Report No. 47 :   Punishment for the offence of Gang Rape

 

The Commission considered an anomaly in law wherein for the offence of Zana-bil-Jabr (rape) by two or more persons, the punishment is prescribed  in death and no alternate punishment is prescribed. The Commission noted that death sentence is awarded in cases  where complete and foolproof evidence is produced, which is generally rare in rape cases, and as such the benefit of doubt goes to the accused, by acquitting him of the charge. Thus, there is a need to amend the law  to prescribe alternate punishments. The Commission therefore approved an amendment to Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979.

 

“(4) When Zina Bil-Jabr liable to tazir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for a term which may extend to twenty five years but shall not be less than ten years and shall also be liable to fine to the extent  of one hundred thousand rupees to be paid to the victim”.

 

Report No.48:           Releasing the Female Accused on Bail

 

The Commission noted that a woman involved in a non-bailable offence when arrested by police and committed to prison pending trial of offence may easily fall prey to unscrupulous elements in the jail who misuse their position either to make money from her relatives or abuse her physically and sexually where she has no relatives to peruse her case. The Commission discussed the  rising complaints of hardships being faced and abuse of women while in police custody or on judicial remand and decided that the Cr.P.C. be amended to allow women bail in non-bailable offences that carried a punishments of imprisonment for less than 10 years.

 

Report No.49:          Examination of Sections 54 & 167 of the Code of Criminal

                                    Procedure 1898

 

Section 54(1)  of the Code of Criminal Procedure 1898  authorizes a police officer to arrest a person without an order or warrant of a Magistrate under the situations mentioned in the aforesaid section. The police officer can exercise power under this section only in those cases where a police officer possessed of some cogent evidence indicating involvement of persons connected with commission of the offence. Once the accused is arrested for committing a cognizable offence, the police is required to complete the investigation within 24 hours of his arrest and police officer incharge of police station is required to report to the concerned magistrate about the arrest of person without warrant within territorial limits. It has come to notice of the Commission that police which making arrest under section 54 & 55 of the Cr.P.C. do not give information to the family members of the person arrested therefore they remain unaware about the where about of the détente. With a view to exercise effective control over the performance of police officer while arresting a person and of the magistrates with granting judicial remand, the Commission approved the proposal that administrative instructions should be issued by the provincial governments to the police and the Chief Justices of the high Courts to the judicial officers to ensure that the liberty of citizen is protected and no person is detained or held in custody, in violation of the law.

 

Report No.50:              Prohibition of Unauthorized Business of Sale/Purchase of 

                                          National Prize Bonds

 

The Commission also considered the problem faced in business of prize bonds through unauthorized dealers by selling to the public “numbers” and thereby depriving  the national exchequer of revenue. The Commission noted that the sale/encashment of national prize bonds is regulated through statutory rules and orders of the Federal Government, and such bonds can be purchased/ en-cashed only through the authorized Banks or National Saving Centers or Head Post Offices, and that no private person or dealer or agency can carry out such a business. The activities of such unauthorized dealers,  therefore, are unlawful and must be checked to save the public of fraud/cheating. The Commission, therefore, recommended to add a new Section 489-G to the Pakistan Penal Code to ban such business by prescribing the punishment of 7 years rigorous imprisonment and fine up to one lac rupees.

 

Report. No.51             Banning the Tradition of Vani (Giving Female as Consideration 

                                        for  Compromise)

 

The Commission considered the consideration of ‘vani’ in compounding the offence of murder. The Chairman informed that the matter has already been examined by National Judicial Policy Making Committee. The Commission observed such practice is contrary to the injunctions of Islam and sections 310 and 338-E of the Pakistan Penal Code clearly and categorically prohibit the giving of female as ‘Badal-I-Sulh’ (consideration for compromise) and the law should be strictly enforced. The Chief Justice of the High Courts would therefore issue instructions to the trial courts and appellate courts to ensure compliance  with the law, by recording statements while compounding offences, to ensure that under no circumstance, a female is given as ‘Badl-I-Sulh’ (consideration for compromise). The Commission further emphasized on the need for effective enforcement of the Child Marriage Restraint Act 1929, which prohibits the marriage of minor and prescribes punishment for those who organize or solemnize or promote the solemnization  of such marriage.

 

Report No.52 :        Access to Justice Development Fund Rules 2002

 

The Law Commission Ordinance XIV of 1979 was amended by Ordinance No.LXX of 2002, thereby changing the name from Pakistan Law Commission to Law & Justice Commission of Pakistan. Further, the composition of the Commission was enlarged and its functions expanded. The Commission was also empowered to administer and manage the Access to Justice Development Fund, meant for strengthening the capacity of the subordinate courts, improving the training of judicial officers, promoting the quality of legal research/education and providing access to justice, legal aid and the protection of human rights. In order to administer and manage the Access to Justice and Development Fund, the Commission approved the Access to Justice and Development Fund Rules 2002.