Correspondence
| Published date | 01 November 1966 |
| Date | 01 November 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02270.x |
COltRESPONDENCE
Tim
Eoiim,
Dear
Sir,
In Mr. T.
H.
Williams’ article,
“
The Criminal Procedure Code of Northern
Nigeria,” in your issue of May
19GG,
it
is
said, at
pnge
269,
that the drafting
of
a
charge by the inngistrate under the
1960
Code occasioned “much disquiet
and suspicion and
I
must admit‘ that
at
first
I
shared
this
disquiet.” Speaking
with considerable experience both
as
a
magistrate nnd
a
sessions judge,
I
may say that in the Indo-Pakistan sub-continent, whose Criminal Code of
1898 seems to have furnished the model for the Northern Nigerian Code,
this
procedure was never considered
as
disadvantageous to the accused. Indeed
it
is
a
positive advantage, since as likely as not the accused
is
likely
to
be
discharged without the speelflc formulntlon of
a
charge.
It
could not be
regarded as placing the court “on tlie side of tlie prosecutor.” On the other
Iinnd, tlic refusal of the court to frame
a
charge
Is
a
positive advantage since
the odium of
an
offence would
not
ordinnrlly attach to tlie accused unless
the charge is framed, for the prosecution is then Inferred
as
having been
bascless and police Inspired.
The second point
on
whicti
I
shoulcl likc to comment is
the
view of tlie
Supreme Court that “it is desirable that
a
charge should be drafted at the
earliest possible stage” and Mr. Williams’ obscrvatlon that
I‘
this is fairer
to tlie accused”
(p.
262).
This
really stems from the suspicion mentioned
above. If, however, the approach be that the framing of
a
charge makes for
the afirmation of
a
real bnsis for the prosecution,
tlie
speedy framing of the
charge wears altogether
a
contrary aspect. Early framing of
a
charge shuts
out re-cross-examination of witnesses already examined before tlie framing
of the charge, and
this
is
a
great disadvantage,
for
It
effectively bars
the
full
employment of
tlie
technique of contradiction which is tlie main instrument
of acquittals,
at
least in the Indo-Pakistan sub-continent. This technique
is
of
real help after
tlie
franiiiig of
a
charge, not only because there
Is
an opportun-
ity to question and confront
tlie
witnesses with tlie previous statements made
in the snme case before tlie frnming
of
a
charge, but also because at tlint stngc
a
number of witnesscs have already testified arid thereby further rnaterlnl
is
furnished for
a
detailed cross-exnminntion of these witnesses.
Tile third and last point
on
which one may joln Issue with Mr. Williams
is
his observation, at page
271,
that
a
rule should be framed to put “the
seen to be done’’ doctrine on
a
statutory basis. Tlie utility and the propriety
of such
a
provision
is
highly questionable. In the case relied upon by Mr.
Williams in this connection
the
real ground for acceptance of the appeal was
tlint tlie interpreters hnd not been sworn, as required by the Code, and their
competency to act as interpreters was questionable, or
at
lenst not established.
Tlie remark by the Supreme Court that justice must be seen to be done was
not rcnlly required to be relied upon for tlie decision of tlic case, for the
trial had been
a
travesty of justice and there was positive violation of
a
positive law. The recital
of
a
principle Rhows no more tlian thnt judges
are
pronc to add reasons for their judgnients and that certain
‘I
nice
”
plirnscs
have become legal catcli-)vords.
In
truth
tlie
intuitive perception of tlie Inclc of
a
fair trial
Is
a
psychological phenomenon and
1s
not susceptible to being put
into words.
Tho
Modern
Law
Review.
Yours truly,
C. M.
SIIAFQAT.
Rawalpindi,
Pakistan.
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