SUBSTANTIVE

AND PROCEDURAL

LAW

Law is a versatile discipline because of its variety of fields and specializations, as well as its aims and aspirations. It is difficult to define and daunting to comprehend, and what is most exciting about it is its culture of adaptation and development. It takes years of analysis and study to bring about conceptual clarity and command over it. For convenience, it has been divided up into classification. Its binary divisions in the tradition of V.D. Mahajan are, inter alia, civil and criminal, municipal and international, scientific and physical, moral and imperative, conventional and natural. However, the most practical ones are substantive and procedural laws as they provide citizens with guidelines on what they ought to do and what they must refrain from, as well as how to channelize their claims.

The substantive law is a branch of law that governs citizens’ rights and duties. It assists in determining legal facts that is conduct proscribed under law since moral facts, i.e. conduct proscribed under conscience, alone cannot attract criminality. Its example from the jurisdiction of Pakistan is the archaic, but still applicable and infrequently amended, Pakistan Penal Code (PPC) of 1860, otherwise known as Majmua-e-Tazirat-e-Pakistan. It was originally prepared by Lord Macaulay and has stayed with us even after the independence in 1947. It has undergone changes ever since and is now a mixture of Islamic and English laws.

Under Section 332 of PPC, there are five types of hurt in Pakistan namely itlaf-e-uzw, itlaf-e-salahiyat-e-uzw, shajja, jurh and other hurts. As per Section 333, it is the duty of citizens of Pakistan to refrain from amputating organs of their fellow beings. Such a hurt is categorized as itlaf-e-uzw. Its punishment as prescribed in Section 334 is Qisas. If qisas cannot be carried out because the defendant is, let’s say, diabetic, then it is liable to arsh. If this too cannot be performed, then it is liable to ten years’ imprisonment.
As per Section 335, the citizens are forbidden from disabling the functionality of organs of their fellow beings. Such a hurt is categorized as itlaf-e-salahiyat-e-uzw by PPC. Its punishment as laid out in Section 336 is the same as that in Section 334.

As per Section 337, there is a duty on citizens to not cause injury on head or face of their fellow beings. This sort of hurt is named as shajja. Its punishment, as prescribed in Section 337-A, ranges from one year imprisonment to fourteen years of that.

As per Section 337, there is a duty on citizens to not hurt their fellow beings below the neck. It is named as jurh. From Section 337-G onwards, there is a wide range of hurts like rash driving, administering poison and mistake. Punishment for first two is ten years’ imprisonment and for latter is arsh and daman, respectively.

In 2020, amendment to PPC was proposed. To this end, the Criminal Law Amendment Bill was pushed by PTI MNA Amjad Ali Khan and became a subject of controversy. It was condemned by Opposition parties as well as government’s own federal ministers. It pushed forward to append Section 500 A to Section 500 of PPC. The latter is a general defamation clause whereas the former was intended to afford privileged protection to Armed Forces of Pakistan. It made it a punishable offence to intentionally ridicule armed forces. The problem with it, in the words of PML-N’s legislator Marriyum Aurengzeb, was that it was contrary to Article 19 of the Constitution of Pakistan, 1973. Even cabinet members including Fawad Chaudhry and Dr Shireen Mazari frowned at it. In his tweet, the former said it is an “absolutely ridiculous idea to criminalize criticism, respect is earned, can’t be imposed on people.” Reiterating, PPP leader Farhatullah Babar expressed his concern as “it’s liable to be grossly misused in the name of national security as Section 295 C had been misused in the name of religion.”

On the other hand, the procedural law is a branch of law which governs the mechanism for availing the substantive rights. Its example from the jurisdiction of Pakistan is the Code of Criminal Procedure (CrPC), 1898. It lays down the procedure for hearing and punishing or acquitting the accused.

Under its Section 154, cognizable offences are to be recorded in an FIR or Register No 1. As per Section 22-A, every citizen has a right to go to Justice of Peace, usually an Additional Sessions Judge or District and Sessions Judge to direct the police to register their FIR. In Qutab Khan & another Vs District Police Officer, D.I Khan (2020), it was held that Section 22-A (6) defined the jurisdiction of ex-officio Justice of Peace (JOP) as: (a) direct police to register FIR; (b) direct transfer of case from one police officer to another; and (c) direct police to fulfil their duties by surpassing neglect, failure or excess of their powers. It also made it clear that JOP could not step into the shoes of the investigating agencies, i.e. direct them to include an accused in a case. Adding emphasis, it said, the superior courts have refrained from interfering with the investigation of police, so should the lower courts. As per Section 156, the duty of the police is confined to investigation, that is, collection of evidence. As per Section 155, non-cognizable offences are to be recorded in Roznamcha or Register No 2. As per Section 200, a citizen can take his complaint to the Magistrate. This is known as Istaghasa. Under Sections 68 to 89, the Magistrate can do issue of process, that is to say, they can take four chronological steps against the defendants.

First is to issue summons.
Second is to issue warrants.
Third is to issue proclamation of absconder.
Fourth is to issue attachment of property.

The foregoing discussion about both substantive and procedural laws of Pakistan shows the importance law holds in the lives of citizens and how it aims to make a difference by helping them know their rights and mechanisms for realizing them.

The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be
contacted at: mawraraja@protonmail.com