Q- What is liability Under Pakistan Penal Code 1860 to attempt a crime? Discuss in detail.
Ans:
1. INTRODUCTION.
Strict Liability offences are those which a man is responsible irrespective of the existence of either wrongful intent. They are the exceptions to the general requirement of fault. The Liability is the ultimate purpose of the law because the wrong-dower must make up or suffer for he has already failed in doing what he ought to have done a man may be punished for wrong done, even if has no guilty mint or at fault. These are the wrong of Strict Liability.
2. MEANING OF LIABILITY.
According To Markby.
The word Liability is used to describe the condition of a person who has a duty to perform.
3. CONCEPT OF LIABILITY.
Liability implies the state of a person who has acted contrary to a duty. Thus liability is the responsibility which befalls an offender when he commits an offence. Liability arises from a breach of duty and wrong.
4. KINDS OF LIABILITY.
Following are 6 important kinds of Liability.
(I). Criminal Liability.
(II). Civil Liability.
(III). Remedial Liability.
(IV). Penal Liability.
(V). Vicarious Liability.
(VI). Strict Liability.
5. STRICT LIABILITY.
To discuss the concept of Strict Liability we need to first look at the classification of offences. Offences can broadly by classify in two categories those which require proof of intention, recklessness and negligence; and offence of Strict Liability i.e. where a person is held responsible irrespective of the existence of either wrongful intent or negligence.
6. MEANING OF STRICT LIABILITY UNDER BLACK’S LAW DICTIONARY.
Unlawful acts whose elements do not contain the need for criminal intent or Mens Rea. These crimes are usually acts that endanger the public welfare, such as illegal dumping of toxic wastes.
7. DEFINITION OF STRICT LIABILITY.
(I). General Definition of Strict Liability.
Acts, for which a man held responsible irrespective of the existence of either wrongful intent or negligence, are said to be offences of Strict Liability.
(II). According To Smith & Hogan.
Crimes which do not require intention, recklessness or even negligence as to one or more elements in Actus Reus are known as offences of Strict Liability.
8. RREASONS FOR STRICT LIABILITY.
Strict Liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence of the offender.
9. RULES REGARDING LIABILITY.
(I). General Rule.
The general rule in criminal law is that in order to prove a crime, along with the Actus Reus, the presence of Mens Rea or guilty mind should also be proved.
(II). Strict Liability; An Exception To The General Rule.
Strict Liability crimes are exceptions to this general principle where a person is punished for committing a wrong even he has no guilty mind. If such cases the law does not enquire whether the guilty person had committed the wrong intentionally, negligently or innocently.
10. STRICT LIABILITY IN STATUTORY CONTEXT.
The presence in or absence from the definition of the offence of the word “Knowingly” or a similar word require Mens Rea is of general importance but not conclusive.
11. STRICT LIABILITY IN CIVIL CASES.
Mens Rea id generally irrelevant in civil proceedings as the object is to compensate the plaintiff for his loss and not to punish the defendant. So the rule of Strict Liability is generally applied in civil cases.
(I). Exceptions.
In certain civil actions, the object of the law is to punish the defendant and Strict Liability is not imposed e.g. malicious prosecution, negligence etc.
12. STRICT LIABILITY IN CRIMINAL CASES.
Generally in criminal cases, there is no criminal liability unless Mens Rea is present and Strict Liability is not imposed.
(I). Exceptions.
Following are the exceptions at common law to the rule requiring Mens Rea or where rule of Strict Liability is imposed.
(i). Public Nuisance.
In the public nuisance any employer might be held liable for the act of his employee even though he himself did not know it had taken place.
(ii). Criminal Libel.
In criminal libel a newspaper proprietor is liable for libels published by his employees.
(iii). Contempt of Court.
In criminal contempt of court intention or negligence need not be proved.
(iv). Outraging Public Decency.
This offence requires a proof of conduct of absence nature, as to result in an outrage to public decency.
13. EXAMPLES OF STRICT LIABILITY.
Following are the examples of the Strict Liability.
(I). Blasphemy.
(II). Drugs.
(III). Qatl-i-Khata.
(IV). Unintentional hurt where compensation in some from has to be paid.
(V). Weapons.
(VI). Driving & Traffic offences.
14. SIGNIFICANCE OF STRICT LIABILITY.
Significance of Strict Liability can be observed by seeing the reasons for imposing Strict Liability as follows;
(I). It is difficult to prove the intention or negligence of the offender.
(II). The primary function of courts is the prevention of crime and Strict Liability deals with this most effectively.
(III). Without this theory many guilty people would escape.
(IV). It is necessary to impose Strict Liability in public interest. For in many cases in which Strict Liability is imposed the public does need protection against negligence.
15. FIRST CASE ON STRICT LIABILITY.
The case which has been said to be the first impose Strict Liability is Woodrow.
Case of Woodrow (1846).
Facts.
Defendant was found guilty of having in his possession adulterated tobacco, although he did not know it was adulterated.
Held.
Defendant was held liable even if the adulteration was discoverable only by a nice chemical analysis.
16. STRICT LIABILITY & ISLAMIC LAW.
In Islamic Law, the general rule of proving intention is Strict Liability followed. Strict Liability is against the general rule that acts are to be determined in the light of intention. However Strict Liability has been used in a limited. E.g in case of Khata where compensation has to be paid to the victim.
17. LIABILITY IS STRICT NOT ABSOLUTE.
The liability is strict but not absolute in offences of Strict Liability.
There is no reason why all other defences should not be available as they are in the case of offences requiring full Mens Rea. Even when dangerous driving was an offence of Strict Liability it was held to be a defence. If defendant was in a state of automatism when he drove the vehicle so insanity, necessity, duress of coercion should be available equally on a charge of offence of Strict Liability as in the case of any other offence.
18. CATAGORIES OF WRONGS OF STRICT LIABILITY.
The most important wrongs of Strict Liability fall into three categories.
(I). Mistake of Law.
Absolute responsibility in the case of a mistake of law is based on the following maxim.
“Ignorantia juris enminem excusat.”
(Ignorance of law is not excuse).
Even if a person commits an offence on account of a mistake of law, that is no excuse in the eye of law. He is liable to be punished although he had no guilty mind at the time of committing the offence.
(i). Reasons For Mistake of Law Is Not Considered As Defence.
(a). Law is the embodiment of common sense and natural justice and hence must be obeyed.
(b). Law both can and should be limited in extent.
(c). According to Salmond, the law is in legal theory definite and knowable, it the duty of every man to know that part of it which concerns him, therefore innocent and inevitable ignorance of law is impossible.
(d). According to Austin, if ignorance of law were a ground of exemption the administration of justice would be arrested. For in almost every case, ignorance of law would be alleged.
(ii). Exceptions.
There are certain exceptions to the general rule that the ignorance of law is no excuse.
(a). Ignorance of special law is excusable. No person can be held guilty for the violation of the foreign law of any country.
(b). It also does not apply to the rules of equity as developed in England.
(II). Mistake of Fact.
Absolute responsibility of mistake of fact can be discussed under the following heads.
(i). Mistake of Fact In Criminal Cases.
In criminal cases, mistake of fact is a good defence against Strict Liability. If a person does something under a mistake without intending to do which he actually does, he is not criminally liable for his action.
Example.
A police constable goes to arrest ‘X’ but arrest ‘Y’ thinking ‘Y’ to be ‘X’ he is not guilty of any crime.
(ii). Mistake of Fact In Civil Cases.
In the case of civil law, a mistake of fact involves absolute liability.
According to Salmond.
“It is the general principle of law that he who intentionally or semi-intentionally interferes with the person, property, reputation or rightful interests of another, does so at his peril.”
(III). Inevitable Accident.
Inevitable accident is that, which avoidance requires a degree of care exceeding the standard demanded by law. It is commonly regarded as a ground of exemption from liability in civil and criminal cases. There is no intention because the consequences are not desired in the case of an accident.
(i). Exception.
There is one important exception to the above rule in civil law. There are cases in which the law provides that a man shall at his peril and shall take his chance if an accident happens.
Case Law.
Rylands Vs. Fletcher.
It was held that if a person brings or accumulates on his land anything which if escapes and causes damage to his neighbors he is responsible, however careful he may have been and whatever precaution he may have taken to prevent damage.
19. CONCLUSION.
The pith and marrow of all the previous discussion there is no iota untruth shows that the law imposes Strict Liability mostly on cases in which high standard of care is required like food, drugs etc to save people from the negligent acts of others. The greater the degree of social danger, the more likely is the offence to be interpreted as one of Strict Liability.
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