Offences – Basic Concepts
Section 40 of Pakistan Penal Code (PPC) defines an offence as any act or omission which has been made punishable by any/special or local law. However, section 81 articulates that it is not necessarily an offence where it is done without any criminal intention to cause harm and in good faith for the purpose of averting or avoiding other harm to any person or property. However, offences can be distinguished/classified at the following three stages:
- At the time of commission of offense
- At the time of arrest
- At the time of making a compromise
At the time of commission of offence
At this stage, offence is further subdivided in to two heads, i.e. cognizable and non-cognizable offence.
Cognizable (qabil-e-dast andazi) or ‘able to be apprehended’ offences are those which vest police with the right to arrest without warrants by the magistrate. The police can enter FIR and start an investigation with or without the intervention of the court. Generally, serious offences fall under this category which usually carry the sentence of three years or more e.g. a simple injury by a dangerous weapon, rape, attempt to rape and murder.
On the other hand, in the case of non-cognizable offences, a police officer does not have the authority to make an arrest without a warrant and an investigation cannot be initiated without court orders. Different petty offences and certain type of torts fall under this category.
In case of non-cognizable offences, the magistrate in whose jurisdiction the offence has been committed would visit the crime scene and order the police to file an FIR if he or she thinks fit. However, it is the sole discretion of the magistrate whether to visit the crime scene or not. He or she can also appoint an officer other than a police officer to carry out the investigation.
The magistrate may also grant permission to the police to file an FIR and carry out investigations. Hence, turning a non-cognizable offence into a cognizable one.
At the time of arrest
This stage determines whether the offence is bailable or non-bailable.
If the punishment for the offence committed is less than two years, bail will be granted as a matter of right. However, the offender will be under an obligation to appear before the police if needed. Nonetheless, a bail once granted can always be revoked, provided that the offender is threatening the people involved in the case or if there are chances of absconding.
If the punishment for the offence is more than two years, that offence will be classified as a non-bailable offence. Offender may be granted bail at the discretion of the court but not as a matter of right in the following cases, if the offender is:
- A juvenile (less than 16 years old)
- A woman
- A senior citizen (more than 60 years old)
- Medical reasons.
At the time of making a compromise
Offences can also be distinguished as compoundable or non-compoundable offences.
In the case of compoundable offences, a compromise between parties can be reached even after the FIR is recorded. The offender is acquitted after the compromise is made. This includes Qisas and Diyat laws.
On the contrary, in case of non-compoundable offences, no compromise can be made between the parties, thus the offender has to suffer his punishment. This includes offences against state or which involve revolt against the government and terrorist attacks (fasaad fil arz), etc. Where there is no legal heir of the one murdered, the state will act as the legal heir and hence this will fall under the category of a non-compoundable offence. In such a case, the right to pardon vests with the President.
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