Office of Magistracy in Pakistan

Khushbakht Ibrar

Lawyer at Trek Law

Historical Background:

In India, office of Faujdari was shaped during the reign of Sher Shah Suri. The main responsibility of this office was dispensation of criminal justice, revenue collection and general administration of the district. This system continued till the time British Rule set in India. The colonial rulers reserved that system and transformed the nomenclature from Faujdar to Deputy Commissioner. The Deputy Commissioner was ex-officio District Magistrate and he was assisted by Sub Divisional Magistrates and Area Magistrates. Magistrates under the Raj were drawn from the provincial services and central services and this practice continued even after independence. Magistrates were used to conduct the pre-trial proceedings, barring bails in the cases which were to be tried by the Sessions Court, in all the Criminal Cases. Besides that, they were the courts of original jurisdiction for all the magisterial trials.

In 1972, law reform ordinance, 1972 promulgated that introduced two classes of magistrates i.e. judicial magistrate and executive magistrate. Later in 1976, law reforms (amendment) Act, 1976 was issued that amended 1972 ordinance and added various section related to the Magistrates. In 1997, legal reform Act, 1997 promulgated that introduced three classes of executive magistrate i.e. magistrate of  1^st, 2^nd, 3^rd class. In 2001 change on the legislative canvass came with the promulgation of the Code of Criminal Procedure (Amendment) Ordinance (XXXVII of 2001). Through, this legislative fiat the Executive Magistracy was abolished. However in amendment Ordinance XLV of 2001 of Code of Criminal Procedure, it was mentioned that ordinance XXXVII will not come into force in Islamabad Capital territory unless specified by the Federal Government.

Difference between judicial magistrate and executive magistrate is illustrated as;

Powers of Executive Magistrate:

There are several powers given to the executive magistrate under code of criminal procedure.

1. Offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code (Act XLV of 1860)(sec 28)
2. Offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment. (sec 29)
3. All the powers specified in third schedule. (sec 36)
4. Security for keeping the peace. ( sec 107)
5. Security for good behavior from persons disseminating seditious matter. (sec 108)
6. Security for good behavior from vagrants and suspected persons. ( sec 109)
7. Security for good behavior from habitual offenders. ( sec 110)
8. To disperse unlawful assembly. (sec 127)
9. Power to use civil force to disperse unlawful assembly. (sec 128)
10. Power to use military force to disperse unlawful assembly. (sec 129)
11. Power to remove unlawful obstruction or nuisance. (sec 133)
12. Power to prohibit repetition or continuance of public nuisance. (sec 143)
13. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger. (sec 144)
14. Power to resolve dispute concerning land, etc., is likely to cause breach of peace. (sec 145)
15. Power to resolve disputes concerning rights of use of immovable property, etc. (sec 147)

Schedule III

Ordinary Powers of Provincial Magistrates .

Ordinary Powers of a Magistrate of the Third Class

• Power to arrest or direct the arrest of, and to commit to custody, a person committing an offence in his presence, Section 64.
• Power to arrest, or direct the arrest in his presence of, an offender Section 65.
• Power to endorse a warrant, or to order the removal of an accused person arrested under a warrant, Sections 83,84 and 86.
• Power to issue proclamation in cases judicially before him, Section 87.
• Power to attach and sell property and to dispose of claims to attached property in cases judicially before him, Section 88.
• Power to restore attached property, Section 89.
• Power to require search to be made for letters and telegrams, Section 95
• Power to issue search-warrant, Section 96.
• Power to endorse a search-warrant and order delivery of thing found, Section 99

(14) Power to authorize detention not being detention in the custody of the police of a person during a police-investigation, Section 167.

(14-A) Power to postpone issue of process and inquire into case himself, Section 202.

(15) Power to detain an offender found in Court, Section 351.

(17) Power to apply to District Magistrate to issue commission for examination of witness, Section 506 (2).

(18) Power to recover forfeited bond for appearance before Magistrate’s Court, Section 514 and to require fresh security, Section 514-A.]

(18-A) Power to make order as to custody and disposal of property pending inquiry or trial, Section 516-A.

(19) Power to make order as to disposal of property, Section 517.

(20) Power to sells property of a suspected character, Section 525.

(21) Power to require affidavit in support of application, Section 539-A.

(22) Power to make local inspection Section 539-B.

1. Ordinary Powers of a Magistrate of the Second Class

(1) The ordinary powers of a Magistrate of the Third Class.

(2) Power to order the police to investigate an offence in cases in which the Magistrate has jurisdiction to try or send for trial to the Court of Session or the High Court, Section 155.

(3) Power to postpone, issue of process and to inquire into a case or direct investigation, Section 202.

III. Ordinary Power of a Magistrate of the First Class

• The ordinary powers of a Magistrate of the Second Class.

(1 -a) Power to direct warrant to land holders, etc., Section 78.

(1-ab) Power to issue search warrant otherwise than in course of an inquiry, Section 98.

• Power to issue search warrant otherwise than in course of inquiry, Section 98
• (3) Power to issue search warrant for discovery of persons wrongfully confined, Section 100.

(3-a) Power to require security for keeping peace, Section 107.

(3-ab) Power to require security for good behaviour from persons disseminating seditious matter, Section 108.

(3-ac) Power to require security for good behaviour, Section 109.

(3-ad) Power to require security for good behaviour from habitual offenders, Section 110.

(3-ae) Power to discharge sureties Section 126.

(3-f) Power to acquire security, for un-expired period of bond, Section 126 A.

(4) Power to require security to keep the peace, section 107.

(5) Power to require security for good behaviour, Section 109.

(6) Power to discharge sureties, Section 126-A. (6-a) Power to make orders as to local nuisances, Section 133.

(6-ab) Power to make order to prohibit repetition or continuance of public nuisance, Section 143.

(6-ac) Power to make orders, etc., in possession cases, Sections 145,146 and 147.

(7-a). Power to record statements and confessions during a police investigation, Section 164.

(7-aa) Power to authorise detention of a person in the custody of the police during a police investigation Section 167.

(7-b) Power to hold inquests, Section 174.]

(8) Power to commit for trial, Section 206.

[(8-a) Power to hold inquests, Section 174.

(8-ab) Power to take cognisance of offences, Section 190.

9. Power to stop proceedings when no complainant, Section 249
10. Power to recover penalty on forfeited bond, Section 514.

(12-a) Power to require fresh security, Section 514-A

(13) Power to make order as to first offenders, Section 562.

(14) Power to order released convicts to notify residence Section 565.

Can Executive Magistrate Issue Search Warrant:

In light of section 36, all the ordinary powers provided in the Schedule III are given to the executive magistrate.  Entry 8 of schedule III gives power to issue search warrant, therefore, there is no cavil to the proposition that the power to issue warrant exercise by the Executive magistrate was backed by the Code.

Search warrant is issued under section 96 CRPC, which is reproduced as under

96. When search warrant may be issued: (1) Where any Court has reason to believe that a person to whom a summons or order under Section 94 or a requisition under Section 95, sub-section (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition,

or where such document or thing is not known to the Court to be in the possession of any person, or where the Court considers that the purposes of any inquiry, trial or other proceedings under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may Search or inspect in accordance therewith and the provision hereinafter contained,

The scheme provided in the CRPC postulates that where The Court  considers that the purposes of an inquiry, trial or other proceedings under the Code is required, the court may issue search warrant for a general search or inspection. Section 6 of the CRPC divides criminal courts in two classes i.e. the Court of Session, the court of magistrate. Sub clause 2 of section 6 further divide the court of magistrate into 2 classes’ i.e. judicial magistrate and executive magistrate and the court of executive magistrates is further divided into 7 classes including the magistrate of 3^rd class.  When we glance at the schedule 3 of the Code, entry 8 of the schedule III of the Code gives power to issue search warrant to the magistrate of 3^rd class.

In Grollo v Palmer (1995) 184 CLR 348 High Court of Australia stated in para 12 that Under modern procedure, judicial review is available to determine whether there is sufficient material placed before the issuing justice to enliven the power to issue the warrant. The power to issue a warrant to enter, search and seize must be exercised judicially. But these indicia do not stamp the power to issue a search warrant with the character of the judicial power of the Commonwealth. The issuing of a warrant can be described as a judicial act but not in the sense of an adjudication to determine the rights of parties. Although judicial review is available to review an exercise of the power to issue a warrant, it is available whether the power be classified as judicial or as administrative in nature. And although the duty to exercise the power to issue a warrant must be exercised judicially, that means only that the power must be exercised without bias and fairly weighing the competing considerations of privacy and private property on the one hand and law enforcement on the other. In Love v Attorney-General (NSW), this Court held that the power conferred by a State law on the Supreme Court of New South Wales to issue a warrant authorizing the use of a listening device was an administrative not a judicial power, though it was a power to be exercised judicially. Nor was the act of exercising the power a judicial act in the sense of adjudication to determine the rights of parties. Love’s Case was followed in Coco v The Queen, In Hilton v Wells, where a challenge was made to the validity of the vesting in Judges of the Federal Court of the power to issue a warrant under s 20 of the Act (as it stood prior to the 1987 Amendment), it was common ground that the power is not part of the judicial power of the Commonwealth. The submission that the power conferred by ss 45 and 46 is part of the judicial power of the Commonwealth should be rejected. The incompatibility qualification on the persona designata doctrine
para 19 states”In Hilton v Wells, the Court accepted that the power to issue warrants is an administrative power and not a judicial one, a view that accords with previous and subsequent authority. Both the majority and minority judgments in Hilton v Wells also accepted that the administrative power to authorise the issue of warrants may be conferred on a person who is a federal judge as persona designate”.

In light of the provision referred above, we can say that the powers to issue search warrant under section 96 are given to the executive magistrate. Thus the executive magistrate is competent to issue search warrant.

Conclusion:

To conclude, Executive Magistracy, an institution considered to have been abolished in 2001, is a magisterial system which is executive in nature as implied by the term itself. The judiciary was, in fact, completely separated from executive through Law Reforms Act, 1997 read with Law Reforms Ordinance, 1972 which together formed the basis of Article 175(3) of 1973 Constitution of Pakistan. Prior to 1996, there was a single magistrate who used to deal with all the crimes up to three years along with a magistrate having the powers of section 30 of Criminal Procedure Code who had the jurisdiction to hear all criminal matters other than those which carry death penalty. After separation, however, magistracy was divided into judicial and executive branches, with the former dealing with crimes only and the latter with issue pertaining to public service delivery, watch and ward over police and other law enforcing agencies, consumer rights and regulatory functions of the state.

References:

https://archive.pakistantoday.com.pk/2017/03/05/reviving-executive-magistracy/

https://www.thenews.com.pk/print/920935-executive-magistracy

https://www.brecorder.com/news/40005576

https://en.wikipedia.org/wiki/Magistrate

https://www.ma-law.org.pk/pdflaw/CrPC.pdf

https://cspforum.substack.com/p/executive-magistracy-and-separation-1f5

https://www.worldcat.org/title/law-reforms-ordinance-1972-ordinance-xii-of-1972-containing-amendments-to-1-pakistan-penal-code-1860-2-evidence-act-1872-with-the-text-of-law-reforms-policy-1972/oclc/589951