Ijtehad:

The word "Ijtehad" is originally derived from the the arabic word "Jihad". it means to discover the law from Quran and Sunnah. through all possible means of interpretation and then to apply for decision. However, there is no application of Ijtehad where there a rule in the text of Holy Quran and Sunnah is clear and explicit from which no further meaning beyond that may be derived from it. Ijtehad is interpretation by majority. some one believes that the law laid down in Holy Quran is some how different from Ijtehad. it is said that it is the activity of the jurists to interpret from their own outside the text of Holy Quran and Sunnah. This view is hardly acceptable; as the jurists have taken up that aspect of law for interpretation which is contained in the text and the interpretation is purely in the context of that particular issue of law, not beyond that. How interpretation made, is understandable from the example that the text provides the for the punishment of theft hundred stripes in the amputation of hand. No interpretation will be imputed as regards hundred stripes or amputation of hand. Nevertheless, the point which requires elucidation for interpretation is that the gravity of the stripes in the nature of offence and the amputation of which one hand? These things are to be interpreted in the terminology of Ijtehad.

In the real perspective the exegesis of Holy Quran are to be developed by the judges as well as by the chosen representative of people, popularly known as parliament (majlis-e-shoora). The Law of Quran is not static but organic. 

Taqleed:

Taqleed means to follow the one's opinion without knowledge or authority of such opinion. The great Imams never claimed finality for their opinions; but their followers in the subsequent ages invented the doctrine of taqleed. A Sunni Muslim imperatively follow the opinion of their imam irrespective of the fact, the reason be in favour of an other opinion. There is no warrant for this doctrine in Quran and Sunnah. (In the Al-mital wal nihal page number 39) It is stated that great Abu- Hanifa used to say " this is my opinion and consider it to be the best". if some one regards an other persons' opinion to be better, he is welcome to it. Reference : PLD 1967 (SC 97).

"Distinction between Ijtehad and Taqleed"

01. In Ijtehad, Law is to be derived from the text of Holy Quran and Sunnah; where is in taqleed, the opinion of an other person is to be followed without knowledge of the authority for such opinion. 

02. Ijtehad is permissible only in field where no rule of injunction from Holy Quran is available. The doctrine of taqleed is applied only in the case of those who do not possesses the qualification of the jurists. 

03. Ijtehad is application of faculties by the lawyer to the consideration of the authorities of law; where as taqleed does not make it incumbent for all muslims to be abide by it.

04. Ijtehad is a science of jurisprudence consisting of the authorities i.e. the Quran, the Hadith and Ijma; while discuss according to me correct contains somehow historical background rather than any legal significance. 

Scope of Ijtehad in the context of modern conditions:

In applying legal process for the construction and interpretation of islamic laws, there are two schools of lawyers: 01. Orthodox school of traditionalists. 02 Modernist School. 

Jurists as traditionalists deny the right of ijtehad to latter generations. this controversy gained momentum in the process of time and in the subsequent eventualities majority of the muslim country even without sharing modernist's opinion found that traditional doctrine of one school of law, in particular has lost much ground and legislation in islamic law by enactment, became in vague in many islamic countries, however, owing to such changes the importance of these orthodox are traditional islamic laws, which  in fact has existed for more than thousand years, has never been affected. For instance, such law still exists in Saudi Arabia. Now which School of thought is to be followed either in Pakistan or other islamic country for the matters in the process of "Islamistation of Laws" is a job and prerogative of the concerned legislature to decide. This controversy has been decided by the pakistani law courts in the number of cases that is, it is not necessary to stick to the views of the traditionalist, if the context of Holy Quran and Sunnah is clearly to the contrary to any particular point: 

Ijma:

Ijma is a third source of islamic law but the modern jurists consider it to be the most important element for muslim law. Ijma is an agreement of jurists among the followers of the Holy prophet in a particular age on question of law and fact after departure of Holy prophet (peace be upon him). The authority of law is best on the Quran, Sunnah and Reason. Ijma enjoys authority on the basis of reason. It may be constituted by decision expressed in words or practice by jurists (both equally authoritative). Any question concurrently decided by the Ijma can not be opened by an individual Ijema unless an other Ijma sits. 

Ijma as a source of Islamic Law:

After Quran and Sunnah, Ijma is the third source of islamic law containing authority of legislation. Under the parameters of Quran and Sunnahs delegation many issues can be resolved by ijma, such as: 01 enforcement of ordains of Quran and Sunnah. 02. Interpretation of Shariah according to changing circumstances. 03. enforcement of Quran and Sunnah towards achieving the object of sharia on matters arising day to day. 04. Preference of one of the companions over the others. 05. Famous ijema of companions of Prophet. 

Difference of Opinions:

Four Sunni schools of thought hold ijema as a valid source of law, while Shia school of thought only accepts the ijema of Ahlu-al-Bait as valid source of law. according to Imam Bukhari, if general opinion of people is in favor or against the ijema may not be reckoned as authentic one because people do not have command over sharia and they lack reasoning and arguments, thereby ijema can be conducted by that class of the jurists who besides being specialists, possess authority over shariah. 

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"Offence and Its Kinds"

Offence and Its Kinds:-

According to Section 4(O) of the CR.P.C; Any act or omission made punishable by any substantial law for the time being in force; it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1881.  Offence has the same meaning as the crime and in the context of the criminology, any act which is anti-social behavior or any act which is harmful to the society.

Offence is defined Under Section 40 of the Pakistan Penal Code, XLV 1860, as an act which is made punishable under the PPC. 

Neglect to maintain one's wife and children is not an offence, and a finding of a Magistrate ordering a person to pay a certain amount of money for the maintenance of his wife and children does not, therefore amount to a conviction for an offence. similarly person proceeded against under sections: 107, 109, or 110 of CR.P.C is not an accused. 

Abetment of any offence would be considered as the offence committed for the purpose of conviction.

Action taken in preventive detention against any person does not amount to an offence.

An attempt ordinarily means an intent combined with an act falling short of the thing intended. It may be described as an endeavor to do an act carried beyond mere preparation, but short of execution. an effort or endeavor to accomplish a crime.

An attempt to commit crime is: an intent to commit it, an overt act towards its commission, failure of consummation, the apparent possibility of commission.

Contempt of court is an offence made punishable under the Contempt of Courts Act. 

Bailable and Non-Bailable Offences: According to Section 4(B) of Cr.P.C, Bailable offences means offences shown as the bailable in the second schedule or which is made bailable by any other law for the time being in force and non-bailable offences means any other offences. mostly the offences which are less severe or not henious in nature and have lesser punishment provided under the substantial penal law i.e. the offences of which punishment may not exceed to ten years imprisonment or life imprisonment or death sentences, may be considered bailable offences but not necessary are so. 

Law is bail not jail, in bailable offences the grant of bail is a right and not concession; whereas in the non bailable offences the bail is not matter of right but concession or grace, Section 497 Cr.P.C divides the non-bailable offences into two classes:- 

1. Offences punishable with death, imprisonment of life or imprisonment for ten years.

2. Offences punishable with imprisonment for less than ten years, in nonbailable offences falling in second category, the grant of bail is a rule and refusal is an exception.   

"Complaint"

Complaint:-

According to section 4(h) of the Code of Criminal Procedure, Act V of 1898, A complaint means the allegation made orally or in written to a magistrate, with a view to taking his action under the code, that some person whether known or unknown, has committed an offence, but it does not include the report of police officer or FIR.

Bllack's Law Dictionary defines the complaint as; A formal charge accusing a person or an offence.

Complaint may be made by any person having sufficient knowledge of the offence committed,even the person who is not aggrieved by the commission of such offence; passerby, stranger, aggrieved/victim or any next of kin of the victim is competent to make complaint.

Complaint is made to Magistrate of having competent jurisdiction,keeping in view that the matter may not fall within the ambit of the doctrine of the Corum-non-Judice.

Complaint necessarily and apparently discloses the facts constituting an offence, that such offence has been committed and it is made against the perpetrator of an offence or crime. It is immaterial to apply the sections provided by the substantial law for the offences, in the complaint because it is to be decided at the stage of framing of charge by the Court that what offences are made and which sections may be applied.

Complaint is made under section 200 Cr.P.C,before the Magistrate. Magistrate examines the complainant on oath and reduces the substances of the complaint into writing. After examination and recording the statement of  complainant, such statement is signed by the complainant as well as by the Magistrate. provided that when the complaint is made in writing then Magistrate is not required to examine the complainant before transferring the case to the Court of Sessions, under section 192 Cr.P.C. the complaint made by the public servant or court is not required to be examined when it is made in writing. 

The object of Section 200 Cr.P.C, is in threefold:-

1. ascertaining the facts regarding the offence

2. saving the time of court and prevent the abuse of process as well as the accused from harassment.

3. for the determination of the sufficient grounds to initiate the investigation, inquiry or any further proceedings.

Where the Magistrate is not competent to take cognizance of the offence then he shall return the complaint to the complainant for the presentation of such complaint to the proper forum.

Court or Magistrate is empowered to postpone the issuance of process and may hold inquiry by itself, direct inquiry by the justice of peace or any other person, direct investigation y police officer and the Court of Sessions may direct the magistrate to hold inquiry. The reasons for such postponement of the issuance of process be recorded.

Inquiry for the truthfulness or falsity is conducted under section 202 Cr.P.C. the object of the inquiry conducted under section 202 Cr.P.C is to satisfy the the court about the prima facie case is made out against the accused and to avoid the false and frivolous litigation conducted against the accused. Court is empowered to record evidence of any witness on oath if it deems fit.

Complaint is dismissed under section 203 Cr.P.C, if the Court reaches on the conclusion that there is no sufficient ground and substance to take cognizance of the offence, keeping in the view the examination of the complaint, result of inquiry under section 202 Cr.P.C and finding of police investigation. 

If the Court is of opinion that there is sufficient ground and material substance with proper evidence to make the complaint fit for a primafacie case then it shall issue the process under section 204 Cr.P.C to ensure the attendance of the person against whom the complaint is made of, and it may issue or warrant at the first instance as per the nature of offence and keeping in view the circumstances.

where, the process is issued and accused appeared on the date fixed for hearing, and complainant does not appear later on, then Court may acquit the accused or adjourn for the next date, recording the sufficient reasons thereof.  in case of complainant is pubic servant then court is empowered to dispense with his personal attendance and proceed with the case.

When the offence is cognizble and non-compoundable then accused is not acquitted due to the non-appearance of the complainant.

Procedure for the complainant case is the same as for the trial before the Magistrate of the first class or the Court of Session,

Complaint is an alternative mode of criminal proceedings where the FIR is not preferred or where police fails to register FIR of the cognizable offences having good good primafacie case. and complaint is out of the domain of the police, it is direct access to get the case registered in Court of law and redress the grievances against the accused person or persons. 

“Arrest”

What is “Arrest”? How Arrest is made and under what circumstances an arrest can be made?

An arrest is the act of depriving people of their liberty, usually in relation to an investigation or prevention of a crime, and thus in detaining the arrested person in a procedure as part of the criminal Justice system.

Police and various other bodies have powers of arrest. In some places, the power is more general; for instance, any person can arrest “anyone whom he has reasonable grounds for suspecting to be committing, have committed or be guilty of committing an indictable offence,” although certain conditions must be met before taking such action.

Section 54 of the Criminal Procedure Code, 1898, provides that: when Police may arrest without warrant: 1- Any police-officer may, arrest without an order from magistrate and without warrant of arrest:-

A) Any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;

B) Any person having in his possession without lawful excuse, the onus of proving which excuse shall lie on such person, any implement of house-breaking;

C) Any person who has been proclaimed as an offender either under this code or by order of the Provincial Government;

D) Any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;

E) Any person who obstructs a police-officer while in the execution of his duty, or who has; escaped, or attempts to escape, from lawful custody;

F) Any person reasonably suspected of being a deserter from the armed forces of Pakistan;

G) Any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any committed at any place out of Pakistan, which if committed in Pakistan, would have been punishable as an offence and for which he is under any law relating to extradition or otherwise liable to be apprehended or detained in custody in Pakistan;

H) Any released convict committing a breach of any rule made under section 565, sub-section 3 ;

I) Any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears wherefrom that person might lawfully be arrested without a warrant by the officer who issued the requisition.

Furthermore, the chapter 5-B of the Criminal Procedure Code sets down the manners and conditions in which the arrest takes place: Under Section 55, 1- Any officer In-charge of a police station may in like manner, arrest or cause to be arrested the Vagabonds, habitual robbers, etc. :-

A) Any person found taking precautions to conceal his presence within the limits of such station, under circumstances which afford reason to believe that he is taking such precautions with a views to committing a cognizable offence; or,

B) Any person within the limits of such station who has not ostensible means of subsistence who cannot give a satisfactory account of himself; or,

C) Any person who is by repute a habitual robber, housebreaker or thief, or a habitual receiver of stolen property, knowing it to be stolen or who by repute habitually commits extortion or in order to the committing of extortion habitually puts or attempts to put persons in fear of injury.

If a police officer deems fit for the purpose of arrest, may also depute and empower his subordinate on his behalf as the arrest is being made under section 54 of the Criminal Procedure Code, 1898.

Where any person, suspected in commission of crime of committed a crime in presence of police officer, and refuses to disclose his name and address, so required be arrested under section 57 of the Criminal Procedure Code, 1898. Further, be released on true disclosure of his name and address. Police officer may require sufficient sureties for his satisfaction and forward hi to the nearest magistrate having jurisdiction. Section 58 empowers, a police officer to pursuit for making arrest without warrant any person, required to be arrested, anywhere in Pakistan. Under section 59, in the absence of a police officer, a private person is also empowered to arrest any person who commits any non-bailable and cognizable offence, without any unnecessary delay, he shall hand over such arrested person to the officer in-charge of the nearest police station.

Section 61 provides that a person arrested, within 24 hours, be produced before the magistrate of competent jurisdiction, excluding the time of journey from the place of arrest and the court of magistrate. But the magistrate is empowered to custody the accused person for more than 24 for hours, if he deems fit and may make an order under section 167 of the Criminal Procedure Code, 1898 for the purpose of remand of the accused either judicial remand or police remand, not exceeding the 14 days.

Under section 64 of Cr.p.c; Magistrate may himself arrest or order any other person to arrest the person who commits any offence in his presence. Section 63 of the cr.pc provides that no person arrested, be released by a police officer, except on his own bond, bail or the order of the Magistrate. The Magistrate who is competent to arrest or direct any person for making arrest, at any time may direct that any person required to be arrested within his local limits be arrested or hi himself arrest such accused person under section 65 of cr.p.c.

The person who escaped from the arrest, he be arrested by anyone, even if the person arresting is not authorized person to arrest, at any place, anywhere in Pakistan, under section 66 of cr.p.c.

In chapter Number 13 of the Criminal Procedure Code, 1898, A police officer receiving information of a design to commit any cognizable offence, may arrest without orders of the magistrate and without warrant, the person so designing, if it appears that the commission of offence cannot be otherwise prevented.

" Issue of Commission for recording the statements of witnesses"

 Issue of Commission for recording the statements of witnesses:-

Chapter 25 of the Criminal Procedure Code provides the mode of taking for evidence in Inquiries and Trials. Section 535 of cr.p.c: Evidence to be taken in presence of the accused: Except as otherwise expressly provided, all evidence taken under Chapter XX, XXI, XXII and XXII-A shall be taken in the presence of the accused or when his personal attendance is dispensed with, in his presence of his pleader.

In the same code, chapter number 40 is for the issuance of the commission for the examination of witnesses. Section 503 of the Criminal Procedure Code 1898, provides that when the attendance of witness may be dispensed with: 1- Whenever, in the course of an inquiry, a trial or any other proceedings under this code, it appears to a court of Sessions or the High Court that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case, would be unreasonable, such court  may dispense with such attendance and may issue a commission to any Magistrate of the First Class, within local limits of whose jurisdiction, such witness resides, to take the evidence of such witness.

And the powers of magistrate to apply for issue of commission are envisaged under section 506 of the Criminal Procedure Code 1898: Whenever, in the course of an inquiry or a trial or any other proceedings under this code before any Magistrate, it appears that a commission ought to be issued for the examination of a witness whose evidence is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case, would be unreasonable, such Magistrate, shall apply to Sessions Judge or the District, stating the reasons for the application and the Sessions Judge may either issue a commission in the manner hereinbefore provided or reject the application. Further, Section 507 of the Criminal Procedure Code, 1898 provides the Return of commission: 1- After any commission issued under section 503 or 506 has been duly executed, it shall be returned, together with the deposition of the witness examined there under, to the Court out of which it issued; and the commission; the return thereto and the deposition shall be open at all reasonable times, to inspection of the parties and may subject to all just exceptions, be read in evidence in the case by either party, and shall for part of the record. 2- Any deposition so taken, if it satisfies the conditions prescribed by article 47 of the Qanun-e-Shahadat Order, 1984, may also be received in the evidence at subsequent stage of the case before another Court. It is pertinent to issue the commission for recording the key evidence, if so required in any case where the Court or Magistrate deems fit for the ends of Justice, in the light of section 503 and 506 of the Criminal Procedure Code, 1898 and along with these powers the Court or Magistrate may record the evidence of any witness, against accused in his absence, under section 512 Cr.p.c.

"Fight for Right,else face the Plight"