Q
1: DIFFERENT KINDS OF PUNISHMENTS
PROVIDED UNDER PAKISTAN PENAL CODE
BRIEF Fact
Punishment is the suffering in person or property inflicted
by society on the offender who has been adjudged guilty of crime under the law.
The main object of awarding punishments for offences is to create such an atmosphere
which restrain people doing such offences.
Section 53 of P.P.C defines several types of punishments for
different offences. The purpose of punishment is the prevention of P.P.C offences.
According to Black’s Law dictionary “Any fine, penalty or
confinement inflicted upon a person by the authority of the law and the judgment
and sentence of a court, for some crime or offence committed by him or for his omission
of a duty enjoined by law.”
Following are the relevant
provisions of P.P.C regarding concerned topic. Section 53 of P.P.C.
What are the 5 philosophies of punishment?
Terms in this set (6)
· List the 5 Correctional Philosophies.
Deterrence, Incapacitation, Rehabilitation, Retribution,
Restitution/Restorative Justice.
·
Restitution/Restorative
Justice. ...
·
Deterrence. ...
·
Retribution. ...
·
Rehabilitation. ...
·
Incapacitation.
Punishment serves
numerous social-control functions, but it is usually justified on the
principles of retribution, incapacitation, deterrence, rehabilitation, and/or
restoration. The specific principles that underlie these dominant philosophies
for punishment are summarized below.
·
Governments have several
theories to support the use of punishment to maintain order in society.
Theories of punishment
can be divided into two general philosophies:
· Utilitarian.
The utilitarian theory of punishment seeks to punish
offenders to discourage, or "deter," future wrongdoing.
· Retributive
The retributive theory seeks to punish offenders because
they deserve to be punished.
Under the utilitarian philosophy, laws should be used
to maximize the happiness of society. Because crime and punishment are inconsistent
with happiness, they should be kept to a minimum.
Utilitarians understand that a crime-free society does
not exist, but they endeavor to inflict only as much punishment as is required to
prevent future crimes
4 KINDS OF PUNISHMENT UNDER SECTION 53:
The punishments to which
offenders are liable under the provisions of P.P.C are as under.
1. Qisas
2. Diyat
3. Arsh
4. Daman
5. Tazir
6. Death
7. Imprisonment for life
8. Imprisonment which namely
·
Rigorous i-e. with hard labour
·
Simple
9. Forfeiture of Property
10.
Fine
Qisas means to follow the path followed by the other. Literary
Meaning the term Qiasa is literally derived form Al Qasas which means to follow
in someone footsteps.
According to justice Qurban ali Shah Qisas means punishment
by causing similar hurt at the same part of the body of the convict as he has caused
to the victim or by causing his death if he has committed Qatl-I Amd in exercise
of his right of the victim or a wali.
According to section 299 (K) of PPC: “Qisas means punishment
by causing similar hurt at the same part of the body of the convict as he has caused
to the victim or by causing his death, if he has committed qatll-i-amd in exercise
of the right of the victim or a wali.
There are four cases in which qisas is not applicable on
the offender.
Where the offender dies before the enforcement of qisas.
Where right of qisas is waived by any Wali.
When the right of qisas devolves on the offender as result
of the death of the Wali of the victim.
Where right of Qisas devolves on the person who has
no right of qisas against the offender e.g. the son cannot enforce qisas against
his father.
Diyat means the compensation granted to the heirs of
the victim by the offender only in cases of Qatl and not in cases of hurt. It is
payable only in cases where an offender guilty of qatle-I-amd is not liable to qisas
or where qisas is not enforceable.
: “Diyat means the compensation specified in section 323 payable
to the heirs of the victim.”
·
Value OF DIYAT U/SEC 323:
·
The court shall subject to the injunctions
of Islam, as laid down in the Holy Quran and sunnah, and keeping in view the financial
position of the convict and the heirs of the victim, fix the value of diyat
which shall not be less than the value of thirty
thousand six hundred and thirty grams of silver.
Arsh is the kind of compensation payable at the causing
of hurt.
·
ACCORDING TO SECTION 299
(B)
Arsh means the compensation specified in P.P.C to be paid
to the victim or his heir.”
·
VALUE OF ARSH:
The value of Arsh will be assessed at certain percentage
indicated various provisos of the value of diyat u/sec 323 P.P.C.
·
MODE OF PAYMENT:
The Arsh will be payable in lumpsum (at once) or in
installments spreading over three years from the date of final judgment.
· FAILURE TO PAY ARSH:
In case of default, the offender may be kept in jail to serve
the simple imprisonment until
Arsh is
paid in full. It may be awarded in the following
sections.
◆ Section 334 P.P.C.
◆ Section 337 P.P.C.
The word Daman is actually Dhman. It means compensation which
is determined by the court.
· ACCORDING TO SECTION 299 (D):
“Daman means the compensation
determined by the court to be paid by the offender to the victim for causing hurt
not liable to arsh.”
· VALUE OF DAMAN:
The value of daman will be determined by the court,
keeping in view:
1.
The expenses incurred on
the treatment of the victim.
2.
Loss or disability caused
in the functioning or power of any or organ.
The anguish suffered by the victim.
· According to section 299 (l):
“Tazir means punishment other than Qisas, Diyat, arsh or
Daman.”
· PUNISHMENT OF TAZIR:
Tazir may be inflicted by
imposition of Fine, imprisonment etc. It is the punishment which is left to the
discretion of the judge or court.
Death is the capital punishment that may be awarded for certain
offences under P.P.C. Such as:
·
Waging war against Pakistan
u/sec 121 P.P.C.
·
Murder u/sec 302· . P.C
·
Hijacking u/sec 40-B, P.P.C
etc.
(VII)
IMPRISONMENT FOR LIFE:
Life imprisonment (also known as a life sentence,
lifelong confinement) is any sentence
of imprisonment for a crime under which convicted persons
are to remain in prison for the rest of their lives. Sentence of imprisonment for
life means, for remaining span of natural of the convict, which is accepted as being
of 25 years duration.
Following are some of
the offences, where it may be inflicted, as punishment.
·
Sedition u/sec 124-A
P.P.C,
·
Counterfeiting Pakistan coin
u/sec 232 P.P.C.
·
Punishment for murder under
section 302 P.P.C.
Imprisonment means confinement of convict within certain
prescribed limits. The maximum period Fourteen years under section 55 P.P.C and
the shortest term provided for an offence is twenty four hours under section 510
P.P.C. There are two Kinds of Imprisonment:
· Rigorous
In the case of rigorous imprisonment, the offender is
put to hard labour such as digging earth, drawing water etc.
· Simple
In the case of simple imprisonment, the offender is
confined to jail and is not put to any kind of work.
Forfeiture of specific property may be awarded as
punishment in the following sections,
·
Section 126, P, P.C
·
Section 127, P.P.C
·
Section 169, P.P.C
Fine is the punishment which may be awarded in some
offences alongwith the imprisonment. Fine is the only punishment provided for in
sections.
◆ 137,154.156,156,171-G, 171-H, 171-I, ,278.283., 290 and 294A,
P.P.C
SENTENCE
OF IMPRISONMENT FOR NON-PAYMENT OF FINE U/SEC 64:
In every case where sentence of fine is awarded, whether
it is alongwith imprisonment or without imprisonment, the Court may direct that
in default of payment of the fine, the offender shall suffer Imprisonment for a
certain term, which shall be in excess of any other imprisonment to which he
may have been sentence or to which he may be liable under a communication of a sentence.
A sentence of imprisonment in default of fine has to
be served out separately. That sentence cannot run concurrently with any other sentence.
· LIMIT OF IMPRISONMENT FOR NON- PAYMENT OF FINE U/SEC 65:
If the offence is punishable with imprisonment well
as fine the term shall not exceed one fourth of the term of imprisonment which is
the maximum fixed for the offence.
If the offence is punishable
with fine only. The imprisonment which the Court imposes in default of payment to
of fine shall be simple in the term shall not exceed the following scale.|
Amount
of Fine
|
Term of Imprisonment in Default of payment of Fine
|
|
Nor
exceeding Rs. 50
|
Not exceeding 2 months
|
|
Not Exceeding Rs. 100
|
Not exceeding 4 months
|
|
In
any other case
|
Not exceeding 6 months
|
Preclude Remarks
I can say, that it is the basic purpose of criminal
justice that wrong doer (culprit) should be Punished. To fulfill this purpose section
53 of P.P.C. provided different types of Punishments based on different theories
viz deterrent, Retributive, reformative compensatory, preventive etc Apart
these Punishments the punishment, of whipping, added by whipping Act may also be
awarded and juvenile offenders, sentenced to and detained in a reformatory school
for a period of 3 to 7 years.
Q
2:COMMON INTENTION AND COMMON OBJECT
1 Preface Theory
In Common intention any offence committed by
several persons which is designed pre-planned. Section 34 of the PPC deals the common
intention. Common intention is intention to commit crime and each accused can be
convicted for the crime who participated in that crime, in furtherance of the common
intention. 2013 PCrLJ (Lah). 603
Common intention generally involves element of common motive,
pre-plan preparation and actual pursuant to such plan. Sometimes common intention
is developed at the spur of the moment or during Commission of offence. PLD 2007 SC 87
To have common intention independently of each other
is not to have common intention. Common intention requires a pre-arranged plan.
There must be a prior meeting of mind. Several person can simultaneously attack
a man and may have the same intention namely the intention to kill and each can
individually inflict a separate fatal blow and yet none would have the common intention
as there is no prior meeting of mind to form a pre-arrange plan. PLD 2010 SC 47
Section 34 applicable to sharing of knowledge as well
as intention PLD 2001 Lah.113 and PLJ 2008
SC 197
2
APPLICABILITY OF LAW
Section 34 is applicable to share and knowledge as well
as intention
3
PROOF
Except in a pre-meditated occurrence, it is difficult
to procure direct evidence to prove intention of a person for committing crime rather
intention is to be inferred from his act and conduct common intention within the
meaning of section 34 PPC can be proved through direct or circumstantial
evidence or may also depend upon the nature of an act done or motive possessed and
a joint action of more than one person itself, is an evidence of common intention.
PLD 2007 SC 87
4
INGREDIENTS
Ingredients of Section 34 PPC were that a criminal act
mush be done by several persons; that criminal acts must be done to further the
common intention of all; and that there must be participation of all persons in
furthering the common intention.
I.
Criminal Act
II.
Several persons
III.
Act muct be done
IV.
Common intention
V.
Participation of all persons
5
UNLAWFUL ASSEMBLY UNDER SECTION
141 OF P.P.C
According to Section 141 of PPC five or more person
gathering (assembly) is designated an unlawful assembly if the common object of
the person composing that assembly is to overawe by criminal force, or show of criminal
force, the central or any provincial government or legislature, or any public servant
in the exercise of lawful power of such public servant, to resist the execution
of any law or legal process, to commit any mischief or criminal trespass or other
office.
6
COMMON OBJECT SECTION 149
OF THE P.P.C.
Member of unlawful assembly committing offence in prosecution
of common object. Section 149,
P.P.C did not create a new offence but dealt with the
crime committed in the prosecution of common object. To establish the allegation
of committing the offence under section 149 P.P.C it must be proved that accused
was a member of an unlawful assembly; and the offence was committed in the prosecution
of common object. To be a member of an unlawful assembly having common object, was
the necessary ingredient to bring the case of accused within the purview of
section 149. 2014 PCrLJ414
7
COMMON OBJECT
Crucial question for determination was whether the assembly
consisted of five or more person and whether the said persons entertained on or
more of the common objects specified by section 141 of the Penal Code.
While determining said question,
it was relevant to consider whether the assembly consisted of some person who were
merely passive witnesses and had joined the assembly as a matter of idle curiosity
without intending to entertain the common object of the assembly.
Mere presence or association with other member of unlawful
assembly alone was nor per se sufficient to hold every one of them criminally liable
for the offences committed by the other unless there was sufficient evidence on
record to show that each intended to or knew the likelihood of commission of such
an offending act. 2012 SCMR 1156
Essential Ingredients
Mention below some are essentially requirement who must
be fulfill otherwise in case of common object otherwise the allegation of criminal
act like common object is not admissible .
I-
Offence is committed
II-
Unlawful assembly
III-
Part of unlawful assembly
IV- Object must be common
V- Fully
knowledge of offence
9 CONSTRUCTION
Section 149 is divided into two parts.
An accused who is found to
be a member of an unlawful assembly can be convicted of a lesser offence
if under the
second part of the section it is clear that he was aware that
such a lesser offence was likely to be committed in prosecution of the common object
although some member of the assembly may have travelled beyond that a object and
committed a graver offence.
PLD 1968 SC 372 ; 1969 SCMR 419; PLD 1971 Kar. 68; 1971
PCrLJ 297.
Scope of section 149 P.P.C while awarding the sentence,
a distinction had to be made in respect of accused, who were armed with deadly weapons
or otherwise. PLD 2014 Qta. 120
9 DIFFERENCE BETWEEN
SECTION 34 AND 149 OF PPC
1.
Section 34 may apply to all
case where the culprits are more than one.
2.
Section 149 can apply only
to cases in which culprits are five or more.
1.
Section 34 requires a pre-concert
or meeting of mind.
2.
Section 149 will apply even
if there was no prior meeting of mind.
1.
Element of participation
in action is necessary to constitute common intention.
2.
In Section 149 only membership
of unlawful assembly at the time of occurrence of offence is sufficient.
1. In Section 34,
all the accused must be present on the spot.
1.2. In section 149, it is not necessary that the
accused must be present at the time of the commission of the offence.
10 Preclude Remarks:
To conclude that ………………………………………
Q 4: Define criminal conspiracy discuss its kinds and
distinguish it from abetment
CONCEPT OF CRIMINAL
CONSPIRACY
Criminal conspiracy is a substantive offence i.e it is recognized
and punishable offence in its self. it is different from other offence an intention
to do a criminal act is not a crime in itself in other offences until something
is done amounting to it whereas conspiracy is an offence simply on the basis of
the agreement or meeting of minds thus mere mens res is enough to establish
liability in criminal conspiracy thus liability can be imposed as soon as an
agreement amounting to criminal conspiracy is reached.
A conspiracy consists not merely in the intention of two or
more but in an agreement of two or more than two to do an unlawful act or to do
a lawful act by unlawful means.
Most important ingredient of the offence of conspiracy was
the agreement between two or more persons to do an illegal act. Conspiracy consisted
not merely in the intention of two or more but in agreement of two or more to do
an unlawful or to do a lawful act by unlawful means. 2011 PCrLJ 232
To constitute Criminal conspiracy there must be an agreement
of two or more persons to do an act which is illegal or which is to be done by illegal
means. 1998 PCrLJ 1486
I. Conspiracy between husband
and wife. Does not warrant prosecution. PLD 1957 PC 92
II.
Mode of proof. Evidence should not be considered in isolation
. PLD 1979 SC 53
Sec120-A, 120-B , 121-A
PPC
When tow when to or more person to do or cause to do be done
i.
an illegal act , or
ii. an
act which is not illegal by illegal means such an agreement is designated a criminal
conspiracy.
According to section 120-A following are the essentials of
criminal conspiracy according to section 120-A of PPC two or more person in order
to establish the offence of criminal conspiracy it is necessary that these should
be at least two or more than two persons to such agreement it is also necessary
since an individual cannot conspire with himself alone.
I. Two or person
II.
Agrement between person
III. Not himself alone
IV. To do illegal act
V. Act will be done
VI. Unlawful act
The offence of criminal conspiracy is complete as soon as
there is an agreement between different person to commit an unlawful act or a lawful
act by illegal means and the person who entered into such an agreement can be tried
for criminal conspiracy irrespective of the fact whether any substantive offence
has been committed in pursuance of the conspiracy or not.
Conspiracy
may be established by direct or indirect evidence such circumstantial evidence need
to be considered together and a cumulative effect to be weighed and given effect
according to Article 23 of Qanun-e-Shahadat order 1984 the act done by one is admissible
against the co-conspirators.
Following are the
difference between criminal conspiracy and abetment
·
The offence of abetment requires that
an act or illegal omission must take palace in pursuance of the conspiracy.
·
The object of the offence of criminal
conspiracy is a bare agreement to commit an offence.
·
Object
·
Form
·
Abetment is a total complete offence.
·
Conspiracy is one of the forms of abetment.
·
Abetment by conspiracy is narrow in scope.
·
Criminal conspiracy is wider in scope.
Thus I conclude this topic to saying that the offence of criminal
conspiracy consists in the every agreement between two or more person to commit
a criminal offence irrespective of the further consideration. Whether or not these
offence have actually been committed the fact of conspiracy constitute in offence
it is immaterial whether anything has been done by pursuance of unlawful agreement.
Q # 01: What are
essentials of unlawful assembly as well as define punishments for members of
unlawful assembly.
1) Preface Fact
· Article 16 of the constitution of the Islamic Republic of
Pakistan 1973, provides “Freedom of Assembly” as a fundamental rights to each and
every citizen of the Pakistan. But where people make assembly to commit unlawful
act, then it would become unlawful assembly in the eye of the law, if the strength
of this assembly is five or more persons, it would become unlawful assembly which
is an offense. Unlawful assembly is a group of such people who have mutual intention
and they start certain acts to attain property of others illegally or consents
of others with illegal manner
2) Meaning of unlawful assembly
· A meeting of three or more persons who have the mutual intention
to commit a crime or commit to breach of peace
3) Definition of unlawful assembly
· An assembly of five or more persons who have mutual intention
to commit a crime or commit to breach of peace by use of force and common objects
of the group is to attain something unlawfully from others
4) Essentials of unlawful assembly
Following are the essential of unlawful assembly. Details
are as under
1. Number of persons
· According to section 141 of the Pakistan Penal Code, In order
to call an assembly an unlawful assembly it is necessary that there must be at least
5 or more persons who have common intention as it has been mentioned in section
141 of the Pakistan Penal Code.
· But in this case, it is the responsibility of the injured
person that he should prove that there was an unlawful assembly consisting of at
least five persons
2. Common object
· It is necessary that the object should be common of the persons
who have assembled this unlawful group. If the object will be common at the time
of occurrence of the crime then it will be called an unlawful assembly. Even if
common object is not proved there
can be no objection upon all of them by the court of law
3. Common object must be unlawful
· Section 141 of the Pakistan Penal Code will apply only if
the common object of an assembly will prove unlawful. If an assembly who is performing
a lawful act, Even if common object is not proved unlawful there can be no objection
upon all of them by the court of law
4. Only presence does not make a person member
· According to section 141 of the Pakistan Penal Code, only
presence in the assembly does not make a person the member of an unlawful
assembly, until he shows commits something wrong or omits someone to do something
such commission and omission will make him a member of unlawful assembly
5) Methods of commission of unlawful assembly
Following are the five objects of the unlawful assembly
and any one of the five, lawyer will have to prove before the court of law
1. Overawe (Drana) govt authority
· According to section 141 of the Pakistan Penal Code, when
the purpose of a group of person is to overawe the federal government, provincial
government, or public servant in the exercise of the lawful act by use of force,
in this case, all person of this group will be considered as members of unlawful
assembly
2. Resist the execution of law
· According to section 141 of the Pakistan Penal Code, when
the group of persons will resist in the execution of process of law by use of force,
in this case, it will be considered as an unlawful assembly and every person will
feel guilt being a member of this assembly
3. Commission of offense
· According to section 141 of the Pakistan Penal code, When
the group of persons will commit something wrong or omit someone to do something
that he is entitled to do, in this case such kind of commission or omission will
be considered as crime and all of those person will be considered as member of an
unlawful assembly and will be punished by the court of law
4. To obtain property or deprive possession
· According to section of 141 of the Pakistan Penal Code, when
a group of persons obtain the property of other or deprives someone from his property
by use of force, in this case
all of those person will be considered as member of
an unlawful assembly and will be punished by the court of law
5. Compel a person to do or not to do a certain act
· According to section 141 of the Pakistan Penal Code, when
a group of persons compel someone to do something which is not legal or compel no
to do something which he is entitled to do, in this case all of those persons will
be considered as member of an unlawful assembly and will be punished by court of
law
6) Who is member of unlawful assembly
· Each of every person will be considered as a member of an
unlawful assembly who is aware of the facts which are unlawful, and joins such assembly
as a member of such assembly
7) Punishments for Members
Following are the punishments for those people who are
the members of unlawful assembly
1)
Imprisonment which can extend
to six months
2)
Fine
3)
Both
8) Punishment for weaponed members
Following are the punishments for those members who
joined the assembly with deadly weapons
1)
Imprisonment which can be
extend up to two years
2)
Fine
3)
Both
9) Vicarious liability
· Under the Pakistan penal code, if one person commits a crime
in order to achieve the common object of his unlawful assembly, in this case, all
of the persons who are the members of this assembly will be considered as criminal
and vicarious liability will be imposed upon all of them
10) Preclude Remarks
· The meaning of unlawful assembly is that where five or more
than five persons get to together in order to achieve unlawful targets will be considered
the members of the an unlawful assembly. If one of member of the assembly will commit
something wrong and
attain a piece of land from someone without his legal
consent or deprives someone from his land which is legally recognized, in this case,
vicarious liability will be imposed upon all of them. There are certain types
of punishments for unlawful assembly which are imprisonment, fine and both
Q # 02: Define rioting and affray. Explain
difference between to
two.
1) Preface Fact
· Under Pakistan penal code, there are different terms which
are being used for public violence and private violence. One of them is rioting
which means where three or more persons who have mutual intention to commit a crime
or commit to breach of peace by use of force and common objects of the group is
to attain something unlawfully from others. And the 2nd of them is affray and affray
is the fighting of two or more persons in a public place to the terror of ordinary
people but the fighting ought to be with the consent of both parties
2) Meaning of Rioting
· The word riot has been derived from the French word which
means “to take part in public disturbance”
3) Definition of rioting
· Rioting is such criminal offence where three or more persons
who have mutual intention to commit a crime by use of force and common objects of
the group is to attain something unlawfully from others
4) Meaning of Affray
· The word Affray has been derived from the French word “effrayer”
which means “to affright”
5) Definition of affray
· Affray is such criminal offence when two or more persons are
fighting in a public place with their mutual consent in order to threat ordinary
people
6) Essentials of rioting
Following are the essential elements of rioting. Details
are as under
1. Force
· Under Pakistan Penal code, the use of force is an essential
element in rioting, by using force criminal obtains properties or others things
from people and violates their rights which has been legally recognized
2. Unlawful assembly
· In order to call an assembly an unlawful assembly it is necessary
that there must be at least 3 or more persons who have common intention
· But in this case, it is the responsibility of the injured
person that he should prove that there was an unlawful assembly consisting of at
least three persons
3. Common object
· It is necessary that the object should be common of the persons
who have assembled this unlawful group. If the object will be common at the time
of occurrence of the crime then
it will be called an unlawful assembly. Even if common
object is not proved there can be no objection upon all of them by the court of
law
4. Vicarious liability
· Under the Pakistan penal code, if one person commits a crime
in order to achieve the common object of his unlawful assembly, in this case, all
of the persons who are the members of this assembly will be considered as criminal
and vicarious liability will be imposed upon all of them
7) Essential of affray
Following are the essential elements of rioting. Details
are as under
1. Number of person
· Under Pakistan Penal Code, in order to call an offence an
affray, there should be shown two or more person who were involved in fighting and
in disturbance to public peace
2. Fight between such persons
· Under Pakistan Penal Code, in order to call an offence an
affray, there should be shown the element of fighting between the people which is
with their mutual consent
3. Fight must be at public place
· Under Pakistan Penal Code, in order to call an offence an
affray, there should be shown the fight between the people but at public place
4. Disturbance of public peace
· Under Pakistan Penal Code, in order to call an offence an
affray, there should be the element of terror to the public, The purpose of this
fight should be terror to the people with mutual consent of the fighting parties
8) Punishments for rioting
Following are the punishments for those members, who
commit riot with deadly weapons or anything which is used as weapon can cause death
of any one,
1)
Imprisonment which can be
extend up to three years
2)
Fine
3)
Both
9) Punishments for affray
Following are the punishments for those members, who
commit affray
1)
Imprisonment which can be
extend up to one month
2)
Fine which can be extend
up to 3000 thousand
3)
Both
10)
Difference between
Rioting and affray
1.
Following re the difference
between rioting and affray. Details are as under.
2.
As to place
Ø Rioting is the type of fight and parties commits riot at a
private place
Ø Affray is the type of fight and parties commits affray at
public place
3.
As to assembly
Ø Riot can only be committed when 3 persons involved
Ø Affray can only be committed when 2 person involved
4.
As to violence
Ø Riot is violence, which violence of rights of people
Ø Affray is not violence; its purpose is to terror to the people
5.
As to liability
Ø In riot, strict liability can be imposed upon all members
Ø In affray, only fighters will be considered as criminal
6.
As to object
Ø In riot, there is common object of the members to attain something
by force
Ø In affray, there is no common object of the members
7.
As to punishment
Ø In riot, punishment for accused can be up to 3 years, fine
or both
Ø In affray, punishment for accused can be up to one month,
fine or both
8.
As to nature
Ø Riot is real and has an object
Ø An affray is dramatic in nature, and has no specific object
11)
Preclude Remarks
· Riot is such criminal activity which is being performed by
the three or more people in order to obtain something unlawfully. But affray is
such criminal activity which is being performed by the two person at a public place
in order to threat the viewers and it is also a criminal activity and punishable
under the criminal act
Q # 03: Discuss in detail, general defenses in
Pakistan Penal
Code.
1) Preface Fact
· A lot of crimes are being committed in all over the Pakistan
on daily basis. It is difficult to apply general defenses to a specific crime because
there are a number of defenses for different crimes. In case of a criminal violation
there are two parties’ state and accused. State is the person whose rights have
been violated and who goes to the court seeking remedy. On the other hand accused
is a person who has violated the rights of the other person. In general defense,
the person who commits wrong he himself wrong doer and liable for the criminal breach
2) Definition of general defense
· In criminal proceedings of court, the denial of the injured
person’s claim by accused is called general defense in criminal law
3) General Defenses
Following are the general defenses in criminal law.
Details are being given as under
1. Minority
· Under Pakistan Penal code, such act which is offence but it
has been performed by a child who is under seven years of age; because the child
under seven years of age cannot differentiate between right and wrong that’s why
he is incapable to perform an offense. And this is a very valid defense in criminal
law
2. Insanity
· Under Pakistan Penal Code, Such act which is offence but it
has been performed by a person who is insane or unsound mind, because the person
who is insane cannot differentiate between right and wrong that’s why he is incapable
to perform an offense and he does not know the reaction of his act. And this is
a very valid defense in criminal law
Ø Insanity by drunkenness
· If the insanity is brought by drunkenness, because it is due
to voluntarily intoxication, so that it is not a valid defense to criminal liability
Ø Medical insanity
· If a person is medically insane and cannot differentiate between
right and wrong. It is a valid defense to criminal liability
3. Intoxication
· Under Pakistan Penal Code, such act which is offense but it
has been performed by a person who had drunk, because the person who had drunk cannot
differentiate between right and wrong that’s why it is a very valid defense against
criminal offense.
Ø Voluntary intoxication
· An accused who had drunk voluntarily, , it is not a defense
in criminal liability to a crime
Ø Involuntary intoxication
· An accused who had drunk involuntarily, it is a very good
defense in criminal liability to a crime because he has been drunk by a fraud
4. Mistake of fact
· In mistake, accused will have to prove that the wrong done
was performed mistakenly. This is not a very valid defense because it is very hard
to prove that a wrong done which has been committed by accused was purely based
on mistaken. It will be considered as mistake when genuinely accused does not know
the reaction of his action and such act become the reason of injury to other person
Ø Non-existence of Mens rea
· If a person who has committed an act which is offense but
he did it unintentionally, it is a valid defense
Ø Existence of Mens rea
· If a person who has committed an act which is offense but
he did it intentionally, it is not a valid defense for criminal liability to crime
5. Consent
· In very limited situations an accused can claim that the victim
consented to the accused’s act
· For example, you are a viewer of a cricket match , the batsman
hits a six, and the ball lands on your head, but you cannot claim for compensation
either from the stadium authorities or the batsman because when you took a seat
in the stadium, you accepted the risks while sitting in the stadium. Because wrong
doer can prove that the injured person voluntarily put himself in that situation.
Ø
Consent taken by undue influence
· If the consent has been taken by accused by using unfair means
or by putting undue pressure, such kind of consent is not a valid defense to criminal
liability
Ø Consent taken by undue influence
· If the consent has been taken by accused by using unfair means
or by fraud, such kind of consent is not a valid defense to criminal liability
6. Private defense
· Under Pakistan Penal code, private defense is a valid defense.
Because every individual has the right to protect his life and his property from
accused and during this protection he can use certain amount of force if necessary.
The criminal law recognizes this right and any injury which is caused by the personal
protection will not give rise to legal remedy
Ø Types of private defense
Private defense is of two types
1)
Private defense of person
2)
Private defense of property
7. Inevitable accident
· When an injury is caused to a person by an accident which
can’t be avoided even with reasonable care
· For example, if a person accidently injured and happening
of that accident can’t be avoided even with reasonable care. After all, how can
an injured person blame for someone else for this accident
8. Necessity and compulsion (Pressure)
· In necessity, accused will have to show that the act he did
was necessary under certain situation. If accused successes to prove his necessity
in this case accused will not be sued by victim and that is a valid defense.
· For example, if accused enters into your private land in order
to collect water from your well to put out a fire from his house. The level of necessity
should be very high. If damage is caused to avoid a greater damage, it becomes a
good defense
4) Preclude Remarks
· An action which has been performed under lawful provision,
it has not been sued by victim in any court of law. The criminal law has defined
those circumstances where
criminal act is justifiable and excusable. As well
as the criminal law does not give permission to anyone to perform unreasonable acts
under the statutory provision or in accordance with general defense because such
kind of act will be considered as criminal offence
Q # 04: What is private defense of property and
person and when
does it extend to causing death of the assailant
(Attacker)
1) Preface Fact
· Pakistan Penal code gives a right to every person to defend
his body or property from unlawful offence by using limited force. Such kind of
usage of force in order to protect himself or protection of his property will be
called private defense. Law does not want that a person should live coward life
so the right of private defense has been vested in person in Pakistan Penal Code
and nothing is an offence which is done in the exercise of right of private defense
2) Definition of private Defense
· The use of force for protection of his life, family, property
from offender is a private right and defender will not be responsible for his any
act which is conducted by him for his defense
3) Force to be used
· Each and every citizen has been given the right of private
defense but law allows only reasonable force to be used to protect himself self
from offender. If offender will use extreme force which was not necessary for his
protection or may cause the death of assailant in this case defender will be liable
to criminal proceedings
4) Classification of private defense of body which can
cause of
death of assailant
Private defense of body which can cause of death of
assailant has been classified into below categories. Details are as under
1. Fear of Death
· Right of private defense of body can become cause of the death
of assailant when defender feels that the assailant attack can become cause of his
death
2. Fear of Grievous Hurt
· Right of private defense of body can become cause of the death
of assailant when defender feels that the assailant attack can become cause of a
grievous hurt
3. Intention of Rape
· Right of private defense of body can become cause of the death
of assailant when defender feels that the assailant intention is to commit rape
4. Intention of Kidnapping
· Right of private defense of body can become cause of the death
of assailant when defender feels that the assailant’s intention is kidnapping
5. Intention of wrongfully confine
· Right of private defense of body can become cause of the death
of assailant when
defender feels that the assailant’s intention is wrongfully
confining a person under such circumstance which will make him unable to reach to
public authorities for his release
5) Classification of private defense of property which can
cause
of death of assailant
Private defense of body which can cause of death of
assailant has been classified into below categories. Details are as under
1. Commission of robbery
· Right of private defense of property can become cause of the
death of assailant when defender feels that the assailant’s intention is to commit
robbery
2. Commission of house breaking by night
· Right of private defense of property can become cause of the
death of assailant when defender feels that the assailant’s intention is to commit
house breaking by night
3. Mischief by fire
· Right of private defense of property can become cause of the
death of assailant when defender feels that the assailant’s intention is to mischief
by fire to the building or tent or other property which can become cause of innocent
casualties
4. Theft
· Right of private defense of property can become cause of the
death of assailant when defender feels that the assailant’s intention is to commit
theft, which can become cause of grievous hurt to defender
6) Acts against which no private defense
Following are the details of those acts against which
there is no private defense is available in criminal law system
· When such act will not become cause of death or grievous hurt
by Public Servant who is acting in good faith.
· When such act will not become cause death or grievous hurt
by person who is acting on the behalf of public servant.
· When defender has time to reach to public authorities in order
to release himself from wrong
7) Commencement and Continuance of the right of private
defense of property and body
· The right of private defense of property and body commences
when a dangerous situation gets start and such dangerous situation comes to an end
by the arrest of the offender.
· Commencement and continuance of private defense of property
and body against different offences are being discussed below.
1. Theft
· The right of private defense of property against the thief
continues till the thief will remain at the location and if thief has left the place
along with stolen property and is completely out of reach of owner, in this case
such right of private defense will be discontinued
2. Trespass
· The right of private defense of property continues only as
long as the trespasser remain on that property and if the trespasser has left the
property , in this case such right of private defense will be discontinued
3. Robbery
· The right of private defense of property against robbery continues
as long as the offender can cause of death or other grievous hurt or till the fear
of the same remains continues
4. Apprehension of death
· The right of private defense of body continues till, the fear
of apprehension of death is not abolish
5. Intention to rape
· The right of private defense of body continues till, the fear
of rape by offender does not abolish
6. Intention to kidnapping
· The right of private defense of body continues till, the fear
of kidnapping by offender does not abolish
8) Preclude Remarks
· To Conclude, it can be stated that it is necessary to exercise
right of private defense that use of force should have become necessary against
assailant and use of force should be reasonable. When a person uses such necessary
and reasonable force through private defense, he will not be answerable in law for
his deeds.
Q # 05: Section 53 of The Pakistan Penal Code
provided various
kinds of punishments.
1) Preface Fact
· Under the section 53 of Pakistan Penal Code, there different
kinds of punishments have been suggested against the nature of criminal offence.
The purpose of the Codified PPC is to punish the criminal who is punished by the
court of law. Purpose of punishment is to make men better or protection of the
society. With the passage of time, various kinds of punishments have been given
to offenders in order to decrease the ratio of crime from society by court of laws
or other authorities
2) Meaning of Punishment
· Imposition of the penalty against violation of law is punishment
3) Definition of Punishment
· Punishment is a method of protecting the society from offender
for reducing the occurrence of criminal acts
4) Kinds of punishment
Details of kinds of punishments authorized by law are as
under.
1. Death Punishment
· Under Pakistan Penal Code, the death is capital punishment
for offender which is given for certain offences under PPC such as:
1)
Murder
2)
Waging War Against Pakistan
3)
Hijacking
2. Imprisonment
· Under Pakistan Penal Code, life imprisonment is a type of
punishment for offender according to it, offender is sent to jail for whole life
but the duration of this sentence is consisted upon 14 years
Ø Kinds of imprisonment
a.
Rigorous imprisonment
In this type of punishment, offender remains in the
jail but he has to do hard labour
b.
Simple Imprisonment
In this type of punishment, offender remains in the
jail but he does not hard labour
Ø Period of Imprisonment
a.
Maximum period of imprisonment
for offender is 14 years
b.
Minimum period of imprisonment
for offender is 24 hours or unlimited
3. Fine
· Fine is also a punishment under Pakistan Penal Code, it has
been prescribed that according to it, offender will pay fine against violation of
rights of others, sometime offender pays fine along with imprisonment for a certain
period, if offender will not pay the fine in this case period of his imprisonment
will be exceeded
4. Solitary confinement
· Under Pakistan Penal Code, solitary confinement is also a
type of punishment, according to this, an offender is kept in jail separate from
other prisoners as punishment for a specified period or with full period of imprisonment
5. Hadd punishment
· Under Pakistan Penal Code, Hadd punishment has been prescribed
that according to them, No judge can change or reduce the punishment for these serious
crimes because these have been set by ALLAH in Quran. The Hadd crimes are:
Murder Apostasy from
Islam Robbery Theft
Rebellion Defamation
Alcohol Drinking
6. Tazir Punishments
· Under Pakistan Penal Code, Tazir punishment has been prescribed
that according to them, Judge can change or reduce the punishment for these crimes
on his own discretion because these have been codified in Criminal law and punishment
for it can be fine, imprisonment etc
7. Forfeiture of property
· Under Pakistan Penal Code, Forfeiture of property was also
a punishment, it was a punishment imposed on high political offenders and it was
also imposed on offenders who were punishable with death but it has been abolished
now under Pakistan Penal
Code
8. Whipping
· Under Pakistan Penal Code, whipping is a type of punishment,
according to this, offender is beaten against violation of certain rights or it
is imposed on offender for high criminal activity by the order of law
9. Qisas
· The word Qisas has been derived from Arabic word “Qasas” which
means to “to follow someone in footsteps”
· Under Pakistan Penal Code, it has been prescribed that offender
will receive same hurt as he gave to the victim, if offender committed Qatal-e-Amd,
he also will be killed
10. Diyat
· Diyat is also a type of punishment, which has been prescribed
in Pakistan penal code, according to this punishment, the offender, is liable to
pay compensation to the heirs of the victim.
· It is payable only in case where offender is guilty of Qatal-e-Amd
and where qisas in not enforceable
5) Objectives of
Punishment
Following are the objectives of the punishment
1)
The major objective of the
punishment is the protection of the life from offender
2)
Second objective of the punishment
is the protection of the property of the people
3)
Another objective of the
punishment is the protection of the state and country
4)
Theory of punishment aim
is the maintenance of the peace and equality
5)
Protection of the culture
and morality
6)
Most important objective
is protection of rights and liberties of the people
7)
The biggest aim of punishment
is to disgrace the crimes and criminal activities
8)
To prevent the other members
of the community from repeating of crimes
6) Types of crimes in Pakistan
Following are the types of crime in Pakistan which are punishable
under the Pakistan penal code
1)
Murder
2) Rape
3) Robbery
4) Theft
5) Undue influence
6) Corruption
7) Cyber crime
8) Human trafficking
9) Attempt to suicide
7) Preclude Remarks
· The measure of punishment varies from time to time according
to the nature of crime committed by the offender. There are different kinds of crimes
and different punishments are available against all kind of offences. Pakistan Penal
code, always follows the Holy Quran & Sunnah in order to give punishment for
Hadd crimes and there is no discretion of the judge on Hadd punishment because these
have been prescribed in Islam
Q # 06: Define abetment? Discuss the criminal
liability of an
abettor in different circumstances?
1) Preface Fact
· If a person who commits an act which is criminal act in its
nature as a result of abetment, if instigation, conspiracy or intentional aid will
be proved behind the act committed, then it will be called abetment otherwise there
is no abetment. That’s why mere the presence at the time of occurrence of an offence
will not be sufficient to make out a case of abetment. Abetment is a provocation
to person for commission of criminal act or a person who is being helped for commission
of an offence, such provocation will be called abetment, and the person who is helping
the criminal will be called abettor
2) Meaning of abetment
· Abetment is a legal term which means, to encourage or to provide
help usually in wrongdoing
3) Definition of abetment
· Abetment is an urging to a person, to do an act in a certain
way or help out someone in commission of an act which in an offence
4) Definition of abettor
· Abettor is a person who, urges to other person to commit a
crime is called abettor
5) Kinds of abetment
Following are the kinds of abetment under the Pakistan
Penal Code, Details are as under
1. Instigation (Uksana)
· If a person abetting to another person by instigating, for
commission of an illegal act or omission which is an offence, it is called abetment
by instigation and abettor also will be liable for this offence. So in this type
of abetment, instigation can be directly or indirectly, words, advices or gesture
which are being used for instigation
2. Conspiracy (Sazish)
· If a person abetting to another person by conspiracy, for
commission of an illegal act or omission which is an offence, it is called abetment
by conspiracy and abettor also will be liable for this offence. So in this type
of abetment, there must be a conspiracy and two or more persons are required
3. Intentional aiding
· Aid means help, if a person abetting to another person by
intentional aid, for commission of an illegal act or omission which is an offence,
it is called abetment by aiding and
abettor also will be liable for this offence. There
can be two or more person who will be helping the offender for commission the crime
6) Punishments for abetment
Following is the detail of punishments for the act abetted
by other and acts are offensive in their nature. Details are given under Section
109 to 120 of P.P.C
1. Unspecified punishment
· If any punishment has
not been specified in the P.P.C for abetment, in this case the abettor will
be punished for the offence which has been committed in the result of his
abetment to offender
2. Commission of different act
· If person abetted who committed a different act for which he has not been abetted but in addition
to act abetted, in this case the abettor will be punished for each of the
offence
3. Commission by different way
· If person abetted who committed an offence with a different way, in this case the abettor
will be punished according to the nature of offence committed
4. Commission of same act
· If person abetted who committed the same act for which he has been abetted but its result is different, in this case
the abettor will be punished according to the result of offence committed
5. Presence of abettor on place of occurrence
· If abettor is present
at the time of occurrence of the offence even act is commited by the person
abetted, in this case the abettor will be punished according to the nature of
the offence committed
6.
Abetment causes death
· If person abetted committed an act for which he has been abetted
and if such abetment causes death to any
person, in this case the abettor will be punished with imprisonment which can be consisted on 14 years as well as also will
be liable to fine or both
7.
Abettor is public servant
· If the person abetted
or the abettor is a public servant, in this case the person abetted and abettor
will be punished with imprisonment according to the nature of offence
committed as well as they also will be fined or both
8.
Abettors are more than 10
· If the person abetted committed an act for which he has been
abetted by the persons more than 10 in number,
they all will be punished with imprisonment which can be up to three years or they
will be fine or both
9. Abettor designing the schedule
· If abettor is designing
the schedule for commission of an offence or omission from not to do which is
legal, by fully knowing the bad results of its designed schedule, in this case
abettor will be punished with imprisonment which can be up to seven year in
case of commission of an offence, but if offence is not committed , in this case
abettor will be
kept imprisoned up to three years
10.
Abettor designing the
schedule is public servant
· If abettor who public servant is designing the schedule for commission of an offence or omission from
not to do which is legal, by fully knowing the bad results of its designed
schedule, in this case abettor will be punished with
imprisonment which can be up to ten year in case of commission of an offence, but
if offence is not committed , in this case abettor will be kept imprisoned up to
205 years or fine
11. Under section 118 P.P.C
· With all conditions
of section 118 of P.P.C under, If abettor is designing the schedule for
commission of an offence or omission from not to do which is legal, by fully knowing
the
bad results of its designed schedule, in this case abettor
will be punished with imprisonment or fine or both
7) Objectives of Punishment
Following are the objectives of the punishment
1)
The major objective of the
punishment is the protection of the life from abettor
2)
Second objective of the punishment
is the protection of the property of the people
3)
Another objective of the
punishment is the protection of the state and country
4)
Theory of punishment aim
is the maintenance of the peace and equality
5)
Protection of the culture
and morality. Most important objective is protection of rights
and liberties of the people
6)
The biggest aim of punishment
is to disgrace the crimes and criminal activities
8) Preclude Remarks
· In this question there are two personalities should be exist,
one who is known as person abetted and
2nd who is known as abettor. Under Pakistan penal Code act,
person abetted and abettor both will be held responsible for an offence which
may be committed by person abetted or by both. And they will be given same punishment
for offence
according the nature of their offence. Abettor is a
person who urges other or helps other to commit a crime and person abetted is the
person who commits the crime directly by his hands
Q # 07: What is hurt and its different kinds?
Discuss in details.
1) Preface Fact
· Under Pakistan Penal Code, there are a lot of criminal
acts as well as methods of commission of such acts are different. When someone causes
an injury to any person or dismembers any organ of the body of any person, without
causing his death, is called hurt. In case of qatal, the victim gets expire but
in case of hurt, victim remains from death. In case of hurt, various organs and
parts of human body have been defined separately. All injuries have different punishments
according to the nature of hurt
2) Meaning of Hurt
· The term hurt is a legal term which means “to cause physical
pain to somebody”
3) Definition of hurt
· Hurt is one of the criminal act which causes harm to human
body other than death
4) Essentials of hurt
The hurt is harm caused to human body other than death.
Following are the essentials of hurt
1) Causing pain, Harm or injury
2) Causing Disease
3) Causing disabling of any organ without death
4) Causing dismembering of any organ without death
5)
Kinds of hurt
Following are the five kinds of hurt under Pakistan Penal
Code. Details are as under
1. Itlaf-e-Udw
· When someone dismembers any organ of the body of any other
person without causing his death is called itlaf-e-udw
· Punishment: in this case, the offender will be punished with Qisas but
where Qisas is not executable, the offender will be punished with imprisonment which
can be up to ten
years as tazir
2. Itlaf-i-Salahiyat-i-Udw
· When someone destroys the power of any organ of the body of
any other person without causing his death is called iflaf-e-Salahiyat-Udw
· Punishment: in this case, the offender will be punished with Qisas but
where Qisas is not
executable, the offender will be punished with imprisonment
which can be up to ten years as tazir
3. Shajjah
· When someone causes harm on the head or face of the any other
person without causing his death, which does not amount to itlaf-e-udw and
itlaf-e-salahiyat-e-udw, is called Shajjah
Following are the kinds of shajjah which is six provided
in Pakistan Penal Code, these are different types of injuries on head and face
1. Shajjah-e-Khafifa
· When someone causes harm by weapon on the face or head of
any other person without exposing the bone of victim
2. Shajjah-e-Mudihah
· When someone causes harm by weapon on the face or head of
any other person, but bone of the victim is exposed
3. Shajjah-e-Hashima
· When someone causes harm by weapon on the face or head of
any other person, resulting in fracture of bone of the victim without dislocating
it
4. Shjjah-e- Munaqillah
· When someone causes harm by weapon on the face or head of
any other person, resulting in fracture of bone of the victim with dislocating it
5. Shajjah-e-Aima
· When someone causes harm by weapon on the face or head of
any other person, resulting in fracture of the skull of the victim, where wound
touches the membrane of the brain
6. Shajjah-e-Damiyah
· When someone causes harm by weapon on the face or head of
any other person, resulting in fracture of the skull of the victim, where wound
breaks the membrane of the brain
4. Jurh
· When someone causes harm on the body of any other person other
than head or face, which leaves a temporary or permanent mark of the wound on the
body, is called Jurh Following are the kinds of Jurh
1)
Jaifah
· When someone causes injury on the body cavity of trunk of
any other person, is called Jaifa
2) Ghair Jaifah
· When someone causes injury which does not comes under the
category of jaifa, is called Ghair Jaifah
Ghair Jaifah has more six kinds. Details are as
under
a)
Damiyah
· In which the skin of the injured person is ruptured and bleeding
occurs, is called Damiyah
b)
Badiah
· In which the skin of the injured person is cut without exposing
the bone of the victim is called Badiah
c)
Mutlahima
· In which the skin of the injured person is scratched is called
Mutlahima
d)
Mudihah
· In which the bone of the injured person is exposed is called
Mudihah
e) Hashima
· In which the bone of the injured person is fractured without
dislocating, is called Hashima
f) Munaqillah
· In which the bone of the injured person is fractured as well
as get dislocate, is called Hashima
5. All other kinds of Hurt
Following are the other kinds of hurt under Pakistan
Penal Code, details are as under
1.
Hurt by Negligent driving
· When someone causes harm to any other person by negligent
driving, in this case the accused will be punished according to the nature of harm
under PPC by Tazir
2. Hurt by Negligent act other than driving
· When someone causes harm to any other person by negligent
act other than driving, in this case the accused will be punished according to the
nature of the harm under PPC by Tazir which can be imprisonment, fine or both
3. Hurt caused by mistake
· When someone causes harm to any other person by mistake, in
this case accused will be punished according to the nature of the harm under PPC
4. Hurt by means of poison
· When someone causes harm to any other person by using poison,
in this case the accused will punished with imprisonment which is up to ten years
6) Preclude Remarks
· Under Pakistan Penal Code, there are two major types of injuries,
one of them is on head or face and 2nd is injury on the body of the other person,
There are under
P.P.C different punishments has been defined according
to the nature of harm, punishment under P.P.C can be imprisonment, fine or both.
Accused can be punished with Qisas as well as Under P.P.C as Tazir against his harm
committed against any other person
Q # 08: Define and differentiate between Qatl-e-Amd
and Qatl-e-
Shiba-e-Amd, along with their respective punishments.
1) Preface Fact
· The major object of law is to protect the life of citizens
of society from offenders. Qatl means causing death of a person. It is the killing
of human being by a human being. When someone intentionally causing death of
other person by using deadly weapons, after knowing that his act is very dangerous
and it can cause death, it is called Qatl-e-Amd. When someone have intention to
cause bodily injury to other by doing an act but injured person died without mens
reus, it is called Qatl-e-Shibe-Amd. Qatl can be lawful or unlawful, Lawful Qatl
have been divided into three categories. Accidental, justifiable and Excusable.
2) Meaning of Qatl
· The word Qatl is an Arabic word which means “to Kill , to put death”
3) Definition of Qatl
· Unlawful killing of one human being by another human being
by an unlawful act
4) Kinds of unlawful Qatls
Following are four major types of unlawful qatls provided
and defined in the Qisas and diyat ordinance.
1. Qatl-e-Amd
· When someone intentionally causing death of other person by
using deadly weapons, after knowing that his act is very dangerous and it can cause
death, it is called Qatl-e- Amd
Ø Punishment for Qatl-e-Amd
Following are the punishments for whom, who commits
Qatl-e-Amd. Details are as under:
1)
Punished with Death as Qisas
2)
Punished with Death as Tazir
3)
Imprisonment for life as
Tazir, the term of imprisonment can be 25 five years but not less than 10 years
4) No clause will apply if offence of Qatl-e-Amd is committed
on the name of honour
Ø
Example
· A shoots Z, with the intention of killing Z, and if Z dies,
A will be liable for Qatl-e-Amd
2. Qatl-e-Shiba-Amd
· When someone have intention to cause bodily injury to other
by doing an act but injured person died without mens reus, it is called Qatl-e-Shibe-Amd
Ø Punishment for Qatl-e-Shiba-e-Amd
Following are the punishments for whom, who commits
Qatl-e-shiba-e-Amd. Details are as under:
1)
He will be punished as Diyat
2)
Punished with imprisonment,
the term of imprisonment can be 25 years
Ø
Example
· A attacks B, with a stick which cannot become cause of death
of B. if B dies as a result of such attack. A will be liable for Qatl-e-Shiba-e-Amd
3. Qatl-e-Khata
· When someone caused death of a person either by mistake of
act or by mistake of fact, and have no intention to cause the death or cause harm
of a person, is called Qatl-e- Khata
Ø Punishment for Qatl-e-Khata
Following are the punishments for whom, who commits
Qatl-e-Khata. Details are as under:
1)
Where the death of a person
is caused by negligent act, accused will be punished with imprisonment with the
term of 5 years as tazir
2)
Where the death of a person
is caused by negligent driving, accused will be punished with imprisonment with
the term of 10 years as Tazir
Ø Example
· If A shoots a deer to hunt, but mistakenly bullet hits a person
standing nearby deer and person dies. A will be liable for Qatl-e-Khata
4. Qatl-e-Bis-Sabab
· When someone caused death of a person without any intention
to cause death or harm to other, but accused does unlawful act which becomes a cause
of death of other
person, it is called Qatl-e-bis-Sabad
Ø
Punishment for Qatl-e-Bis-Sabab
Following are the punishments for whom, who commits
Qatl-e-Bis-Sabab. Details are as under:
1)
One who commits qatl-e-Bis-Sabab shall be liable to
Diyat only
Ø
Example
· If a person A unlawfully digs a pit in the way without any
intention to death or harm to other, and any person B falls in it and dies, A will
be liable for Qatl-e-Bis-Sabad
5) Essentials elements
of Qatl
Following are essential elements of Qatl. Details are
being given as under
1)
There must be death of human
being
2)
Weapon may be used under
some circumstance
3)
Such death must be caused
by doing an act
4)
Act should be unlawful or
dangerous
5)
There must be intention to
death under some circumstances
6)
There should be mistake of
fact or mistake of act
7)
Knowledge about act that,
it is likely can cause death
6) Differences between different types of Qatl
Following are the differences between different types of
Qatl. Details are as under.
1.
As to intention
Ø Qatl-e-Amd, accused intentionally caused
the death of person
Ø Qatl-e-Shiba-Amd, accused
unintentionally caused the death of person
Ø Qatl-e-Khata, accused unintentionally caused
the death of person
Ø Qatl-e-Bis-Sabab, accused
unintentionally caused the death of person
2.
As to Mens Rea
Ø Qatl-e-Amd, Mens rea is an essential element in qatl-e-am which needs
to be proved by prosecutor
Ø Qatl-e-Shiba-Amd, Mens rea is an essential element in qatl-e-shiba-amd which
needs to be proved by prosecutor
Ø
Qatl-e-Khata, No mens rea is required to be proved
Ø
Qatl-e-Bis-Sabab, No mens rea is required to be proved
3.
As to Punishment of Qisas
Ø Qatl-e-Amd, the punishment of Qisas is
available for Qatl-e-amd
Ø
Qatl-e-Shiba-Amd, the punishment of Qisas is not available for for Qatl-e-Shiba-eamd
Ø
Qatl-e-Khata the punishment of Qisas is not available for Qatl-e-Khata
Ø
Qatl-e-Bis-Sabab, the punishment of Qisas is not available for Qatl-e-Bis-Sabab
4.
As to Punishment of Diyat
Ø Qatl-e-Amd, the punishment of Diyat is
not available for Qatl-e-amd
Ø
Qatl-e-Shiba-Amd, the punishment of Diyat is available for Qatl-e-Shiba-e-amd
Ø
Qatl-e-Khata, the punishment of Diyat is available for Qatl-e-Khata
Ø
Qatl-e-Bis-Sabab, the punishment of Diyat is available for Qatl-e-Bis-Sabab
7) Preclude Remarks
· Under Pakistan Penal Code, different kinds of punishments
have been defined for different kinds of Qatls by doing an unlawful act by offender.
Law determines whether the act has been committed intentionally or unintentionally,
lawful or not, and committed by mistake of fact or by mistake of act, after all
determination, court decides the punishment for accused in order to prevent the
society from offender and commission of such act in future
Q # 09: Define theft and extortion? What are the
distinguishing
features between these two?
1) Preface Fact
· Under Pakistan Penal Code, it has been defined that when a
person obtains money, property or other valuables thing from others by use of force,
threat or violence, is called extortion and it is a criminal act in the eye of law.
Extortion is such crime which can take place by telephone, via voice mail, text
email or other computer or wireless communication. If any method for extortion is
used for unlawfully obtaining money or property, it can be a federal crime. Extortion
involves the consent of the victim but that consent is taken by undue influence
or by use of unfair means
2) Meaning of extortion
· The word extortion is a Latin word which means” to get something
by force or threats”
3) Definition of extortion
· The practice of obtaining something specially money or other
property from people by use of force or threat is called extortion
4) Definition of theft
· A criminal act in which property of another is stolen without
the consent of the owner
5) Explanation of extortion
· If A get pressurizes to B, to sign on a blank paper by putting
him in fear of death or grievous hurt, B signs and delivers the paper to A. And
A converts the signed paper into valuable security. A has committed extortion
6) Essential elements of extortion
Following are the essential elements of extortion.
Details are being given below.
1. Intention
· Intention is an essential element of extortion. As we already
are aware that if a person is not guilty of any offence until his mind is also guilty.
It means that to establish the offence of extortion, guilty mind of accused has
to be proved
2. Threat of injury
· Threat of injury is an essential element of extortion. The
threat of injury must be present
to deliver any property to accused and such injury can
be in body, mind, reputation or property.
3. Delivery of property or valuable security
· Delivery of property is an essential element of extortion.
The property or valuable security should be delivered by the person who is in fear
of injury to accused
4. Inducement (Amada Krna)
· Inducement is an essential element of extortion. If a person
is induced to deliver his property to accused by fear of an injury, it is an offence
of extortion, if possession was obtained peacefully there is no extortion
7) Punishment for extortion
Under Pakistan Penal Code, following is the punishment
for whom who commits extortion against other person by use of unfair means such
as use of force, threat or violence etc.
1)
Imprisonment with the term
of three years
2)
Fine can be imposed
3)
Both, imprisonment and fine
8) Punishment for putting a person in fear of injury
Under Pakistan Penal Code, following is the punishment
for whom who commits extortion against other person by keeping them in fear of injury
1)
Imprisonment with the term
of two years
2)
Fine can be imposed
3)
Both, imprisonment and fine
9) Punishment for putting a person in fear of Death
Under Pakistan Penal Code, following is the punishment
for whom who commits extortion against other person by keeping them in fear of death
4)
Imprisonment with the term
of ten years
5)
Fine can be imposed
6)
Both, imprisonment and fine
10) Punishment for putting a person in fear of
Grievous hurt
Under Pakistan Penal Code, following is the punishment
for whom who commits extortion against other person by keeping them in fear of grievous
hurt
7)
Imprisonment with the term
of seven years
8)
Fine can be imposed
9)
Both, imprisonment and fine
11) Punishment for putting a person in fear of
accusation of
offence
Under Pakistan Penal Code, following is the punishment
for whom who commits extortion against other person by keeping them in fear of accusation
of an offence
10)
Imprisonment with the term
of ten years
11)
Fine can be imposed
12)
Both, imprisonment and fine
12) Punishment for putting a person in fear of accusation of
offence punishable with death or life imprisonment
Under Pakistan Penal Code, following is the punishment
for whom who commits extortion
against other person by keeping them in fear of accusation
of an offence punishable with death or life
imprisonment
13) Imprisonment with the term of ten years
14) Fine can be imposed
15) Both, imprisonment and fine
13) Types of crimes in Pakistan
Following are the types of crime in Pakistan which are punishable
under the Pakistan penal code
1)
Murder
2) Rape
3) Robbery
4) Theft
5) Undue influence
6) Corruption
7) Cyber crime
8) Human trafficking
14) Objectives of Punishment
Following are the objectives of the punishment
1)
The major objective of the
punishment is the protection of the life from offender
2)
Second objective of the punishment
is the protection of the property of the people
3)
Another objective of the
punishment is the protection of the state and country
4)
Theory of punishment aim
is the maintenance of the peace and equality
5)
Most important objective
is protection of rights and liberties of the people
6)
The biggest aim of punishment
is to disgrace the crimes and criminal activities
7)
To prevent the other members
of the community from repeating of crimes
15) Preclude Remarks
· Under Pakistan Penal Code, there are different kinds of punishment
for theft and extortion because there is a lot of difference between these two.
Theft is stealing something without the consent of owner of the property without
making undue influence upon him. mBut in extortion there is a difference in commission
of an offence, in extortion accused gets consent of the owner by using unfair means
in order to obtain something. That’s why P.P.C defines different types of punishment
for each offence under court of law
Q # 10: What is meant by Hadd and Tazir? How many hadd
offences are there in Islam? Differentiate between two.
1) Preface Fact
· In Islamic law there are two kinds of punishments are given
by Islamic law which is Hadd and Tazir. Tazir refers to punishment for offences
at the discretion of the judge. Hadd refers to punishment for offenses as mentioned
in Holy Quran and judge can’t change them. In Islamic Law ,aim or objective of such
kind of punishments is to reformation of criminal and disgracing them
2) meaning of Hadd
· Literal meaning of the Word HADD is limit
3) Definition of Hadd
· Legally Hadd means those punishments whose limit has been
defined in the Holy Quran and Hadith
4) Meaning of Tazir
· Literal meaing of the word Tazir is “ To Punish”
5) Definition of Tazir
· Legally Tazir means those Punishments “where Judge is authorized
to fix the nature of punishment which may be fine, death, imprisonment, compensation
etc against violation of individual rights.
6) List of Hadd offences
Some jurists have presented its seven kinds which are as
under,
1. Unlawful sexual intercourse
· zina in Islamic is unlawful sexual relations between Muslims
who are not married to one another through a nikah (Islamic marriage)
Ø Proof of Zina
· Offence should be proved by testimony of four eligible witnesses
who present evidence of actual penetration (Dakhool)
· Or accused (Mulzim) must confess four times
Ø
Punishment of Zina
A.
In case of Married
In case of married the punishment for zina is death by
stoning
B.
In case of Un-married
In case of non-married, the punishment is 100 lashes
2. Defamation
· Any Person who is competent and adult whether male or female,
slave or free, falsely charges unlawful sexual intercourse without eyewitness is
liable for Qadf.
Ø Proof of Defamation
· Offence should be proved by confession
· Or testimony of two adult male free Muslims
Ø
Punishment of Defamation
· Punishment for Qadf is 80 stripes for free person
· And 40 stripes for slave
3. Drinking of Wine
· Muslims are not allowed to drink wine because it will be considered
a sin to have a beer whatever the quantity and this is punishable act
Ø Proof of drinking vine
· Crime should be proved by two adult male eligible Muslims
4. Theft
· This is the action or crime of stealing.
· If offender takes something from custody of safe place
· By stealing property with the value of ¼ dinar according to
majority.
· He should be punished for theft by Hadd
Ø
Punishment
· Cutting of right hand from joint of wrist if theft is committed
first time
5. Robbery
· The taking of money or goods from the possession of another
by force
· It may be robbery from travellers who are far away from home
· It may be armed entrance into a private home
Ø
Punishment
· Death by beheading (Sar Qalam Krna)
· Cutting off hands or foot
· Life Imprisonment
6.
Apostasy
· Act of converting to another religion, by a person who was
born in
a Muslim family or who had previously accepted Islam
after awareness of penalty which is death for men and physical punishment for women
7. Rebellion
· Rebellion is an act of armed resistance against state and
it also comes into the Hadd ,
· its punishment is death or life imprisonment
7) Difference between Hadd and Tazir
· Being Muslims, it is obligatory(lazmi) for us to accept wholeheartedly
all the tenets of Islam. Hadd crimes are crimes against ALLAH’s Law. Tazir crimes
are crimes against society. Islam has defined two kinds of punishment namely Hadd
,Tazir. Punishments for Hadood are integral part of Islam which can’t be reduced
by Judge. In Tazir crimes, judges are authorized to fix the nature of
punishment on their own discretion (Sawabaydeed) Following are the some point of
distinction between hadd and tazir
1.
As to Object
Ø The object is hadd is prevention of a crime by following the
principles laid down in the Quran and limits prescribed by ALLAH
Ø The object of Tazir is reformation and correction of the offender
2.
As to procedure
Ø The procedure of trial in Hadd is complicated
Ø The procedure of trial in Tazir is Simple, according to some
jurists, Judge can judgment on basis of his own knowledge
3. As to Right
Ø Violation of rights of ALLAH gives raise to Hadood Punishments
Ø Violation of rights of Individual gives raise to Tazir Punishments
4.
Change of Sentence
Ø The penalty of Hadd can’t be commuted
Ø The penalty of Tazir can be commuted
5.
Pardon of Sentence
Ø Pardon can’t be granted in Hadood cases
Ø Pardon may be granted in Tazir cases
6.
Operation of Mistake
Ø Doubt or mistake can effect the penalty of Hadood cases
Ø Doubt or mistake can’t effect the penalty of Tazir cases
7.
Rule of testimony
Ø The evidence of women is not acceptable in Hadood Cases
Ø The evidence of women is acceptable in Tazir cases, but the
nisab of one man and two women will have to keep in view
8. Standard of evidence
Ø In hadood ,the standard of evidence is so high as to number,
qualification and conditions of witness because any doubt can prevent the implementation
of hadd punishment
Ø In Tazir,Standard of evidence is not so high
9.
Mention of Offences
Ø Some jurists listed seven hadd offences.
1.
Murder
2.
Apostasy from Islam
3.
Robbery
4.
Theft
5.
Adultery
6.
Defamation
7.
Rebellion
8.
Alcohol drinking
Ø Tazir offences has not been mentioned because they are innumerable
(Angint)
10.
As to discretion
Ø In Hadood crimes ,judge can’t exercise his discretion(Raye/Sawabaydeed)
Ø In Tazir crimes, Judge can exercise his discretion
11.
Replacement
Ø Hadd punishment can be dealt with under Tazir
Ø In Tazir the punishment of Hadood can’t be enforced
8) Preclude Remarks
· Punishment for Hadd and Tazir is part of Islamic law. Hadd
was implemented in Arabic before promulgation (Ishaat) of Islam as Tazir in Pakistan.
Islamic law does have separate courts for Muslims for RELIGIOUS CRIMES. Non-religious
courts for other criminal and civil matter. Objective of Islamic law and courts
to secure the people of society from offenders
Q # 11: What is Qazf? When it is liable to Hadd and
when to tazir
and how it is proved?
1) Preface Fact
1.
Qazf is a criminal violation
of rights of others. It is an intentional false accusation of unlawful sexual intercourse.
The Holy Quran has preserved the reputation of each and every person and if accusation
proved false, in this case there is a severe punishment for offender. If a
person has been falsely accused for Zina by other person, he will sue him and will
receive damages from him through the court of law and such person will be punished
under Hadd
or Tazir offence ordinance. Qazf directly effects the
persons’ reputation in the eye of the
society. One saying related to it” When wealth is lost, nothing is lost; when health is lost, something
is lost; when character is lost, all is lost”
2) Meaning of Qazf
· The literal meaning of qazf is “throwing out”
3) Definition of Qazf
· When someone falsely makes an allegation of zina to other
person either by words or written with the intention to harm the reputation of such
person is called Qazf
4) Essential elements of Qazf
Following are the essential elements of Qazf. Details of these
elements are being given below.
2. There should be an accusation of zina
· In order to establish Qazf, if the accusation of zina by one
person against another person is proved, slanderer will be liable for punishment
against his criminal act. If an accusation is not available in this case punishment
will not be given
3. An accusation should be false
· In order to establish Qazf, if an accusation of zina is proved
false, in this case slanderer will be liable for punishment against his criminal
act, if the allegation of zina is proved
to be true and made for public good, in this case
punishment will not be given
4.
An accusation should be clear
by words
· In order to establish Qazf, if an allegation of zina is clear
by words either spoken or written, in this case slanderer will be liable for punishment
against his criminal act, if the words are not clear, in this case punishment will
not be given
5.
And accusation should
harm the reputation
· In order to establish Qazf, if the statement of an allegation
of zina has been given in order to harm the reputation of other person, in this
case slanderer will be liable for punishment against his criminal act
5) Kinds of Qazf
Following are the two kinds of Qazf
1)
Qazf liable to Hadd
2) Qazf liable to Tazir
1. Qazf liable to Hadd
· When an adult intentionally and clearly commits Qazf of Zina
against a person who never having sexual intercourse except his lawfully wedded
spouse, such kind of qazf is liable to Hadd
Ø
Proof of Qazf liable to Hadd
Following are the proof which is necessary to establish
the Hadd punishments
1)
When slanderer confesses
his guilt before the court of law
2)
When the slanderer makes
an imputation before the court of law
3)
When at least two Muslims
give testimony before the court of law after process of Tazkiya Tu Shahood against
slanderer that slanderer is falsely accusing of zina
Ø Punishment of Qazf liable to Hadd
Following are the punishments for slanderer who commits
Qazf liable to hadd and his statement proved false
1) If the allegation of zina is proved false by the
court of law, the person who is liable to Qazf will be punished eighty strips against
his Qazf
Ø Conditions in which hadd shall not be imposed
Following are the conditions in which the punishment
for Qazf will not be imposed upon slanderer. Details are as under
1)
When slanderer commits qazf
against any of his relative
2)
When either slanderer or
person slandered died during the judicial proceedings
3)
When allegation is proved
true
4)
When person slandered withdraws
the case
5)
When number of witnesses
are less than two
Ø
Who can file case
against Qazf
No proceedings under this Ordinance shall be initiated
unless the report is lodged before the court
1)
If the person slandered is
alive, he himself or other person on behalf of him can file the case against slanderer
in the court for punishment
2)
If the person slandered is
dead, in this case any of the ascendants or descendants of deceased person can file
the case against slanderer in the court for punishment
2. Qazf liable to Tazir
· Qazf of liable to tazir is established when it is not liable
to hadd, and there is no evidence or testimony is available against his false accusation
fo zina against a person, in this case the punishment of Tazir will be imposed upon
him
Ø Punishment of Qazf liable to Tazir
Following are the punishments for slanderer who commits
Qazf liable to Tazir
1)
Imprisonment with the term
of two years, imprisonment can be rigorous or simple
2)
Will be punished 40 strips
3)
Fine
6) Objectives of Punishment
Following are the objectives of the punishment
1)
The major objective of the
punishment is the protection of the life from offender
2)
Second objective of the punishment
is the protection of the property of the people
3)
Another objective of the
punishment is the protection of the state and country
4)
Theory of punishment aim
is the maintenance of the peace and equality
5)
Protection of the culture
and morality
6)
Most important objective
is protection of rights and liberties of the people
7)
The biggest aim of punishment
is to disgrace the crimes and criminal activities
8)
To prevent the other members
of the community from repeating of crimes
7) Preclude Remarks
· Qazf is a false allegation of Zina against a person who never
having sexual intercourse except his lawfully wedded spouse, after proving the statement
false, according to Islamic injunctions, slanderer will be punished under an ordinance
of Hudood case 1979. Qazf basically is attack on
reputation of person and such attach decreases the person’s
reputation in the eye of society, it
is severe criminal act against which different injunction
have been given in Quran and Sunnah for the protection of innocent people from such
slanderers
Q # 12: Discuss Diyat & Qisas? Explain its
kinds and punishment
under PPC.
1) Preface Fact
· Under hudood law, there are certain kind of punishments which
has been described in Islamic injunctions. Diyat is basically a financial pressure
which is imposed on offender against his offence in which offender has to pay an
amount to victim or his heir against his loss. Qisas is such punishment in which
offender is given the same injury as he has caused to victim or offender is given
death punishment if offender has committed qatl-e-Amd by his heirs. There is a very
little difference between diyat and qisas, as Diyat is a compensatory punishment
which is in shape of money, and Qisas is a corporeal punishment which is based on
revenge such as “an eye for eye, finger for finger, and life for life etc
2) Definition of Diyat
· DIyat is financial compensation which is paid to victim or
heir of victim in the cases of murder, bodily harm, or property damage.
3) Meaning of Qisas
· Qisas is an Arabic term which means “to act like the act of
another”
4) Definition of Qisas
· Qisas is punishment by causing similar hurt at same part of
the body of the offender as he has caused to the victim or by causing his death
if the has committed qatl-i-amd in exercise of the right of heir of the victim.
5) Value of Diyat
· The court will fix the value of diyat, keeping in view the
injunctions of the Holy Quran and sunnah as well as keeping in view the financial
position of offender and victim, which will not be less than the value of thirty
thousand six hundred and thirty grams silver. And amount shall be revised by the
federal government on the 1st july
of fiscal year.
6) Financial position of victim and offender
· If the victim is very rich and the offender is very poor,
there will be some leniency towards the amount of diyat. But offender will be kept
in prison because he is unable to pay the amount of diyat to victim or his heirs.
7) Modes of payment of diyat
Under Pakistan Penal Code, there are two different modes
to pay the payment of diyat to victim or his heirs
1)
Lump-sum: Diyat can be paid
lump-sum
2)
In installment: Diyat also
can be paid in installments which can be consisted on the period of three years
8) Offences for which
diyat is awarded
Following are the offences against which the punishment
of diyat is awarded to offender under hudood laws
1) Qatl-e-Amd
2) Qatl-e-Shiba-Amd
3) Qatl-e-Bis-Sabab
4) Qatl-e-Khata
5) Qatl-e-Janin
9) If convict fails to pay diyat
· If convict fails to pay diyat or any part of it with in the
specified period, he will be kept in prison until the amount of diyat is paid or
remaining part of it. He can be released on bail if he deposits security equalent
to the amount of diyat to the court
10) If convict dies before payment of diyat
· If convict dies before the payment of diyat or remaining part
thereof, in this case the remaining amount will be paid by the heirs of victim
11) Offences for which Qisas is awarded
Following are the offences against which the punishment
of Qisas is awarded to offender under hudood laws
1.
Qatl-e-Amd
2. Itlaf-e-Udw
3. Itlaf-e-Salahiyat-Udw
4. Shajjah-e-Mudihah
5. Hurt to extort confession
12)
Execution of Qisas in Qatl-e-Amd
Following matters should be kept in mind while executing
Qisas in Qatl-e-Amd.
1)
Qisas should be executed
by the functionary government
2)
Qisas should be executed
in the presence of heirs of victim
3)
If heir is not present, Qisas
should be executed in presence of authorized representative of
heir
4)
If heir and his representative
are not present even after being informed of date, time and place, in this case
an officer by court will execute the Qisas
5)
If the convict is pregnant
woman, the court will postpone Qisas up to two years
13) Qatl-e-Amd not liable to Qisas
The punishment of Qisas cannot be imposed on the
following four types of person
1)
Where the offender is Minor
2)
Where the offender is insane
3)
Where offender is father
of victim
4)
Where offender is son of
victim
14)
Confirmation of
execution of qisas
· Sentence or punishment of death by way of qisas against death
of other person by offender shall not be executed unless and until the court of
law confirmed this sentence
15) Objectives of Punishment
Following are the objectives of the punishment
1)
The major objective of the
punishment is the protection of the life from offender
2)
Second objective of the punishment
is the protection of the property of the people
3)
Another objective of the
punishment is the protection of the state and country
4)
Theory of punishment aim
is the maintenance of the peace and equality
5)
Protection of the culture
and morality
6)
Most important objective
is protection of rights and liberties of the people
7)
The biggest aim of punishment
is to disgrace the crimes and criminal activities
8)
To prevent the other members
of the community from repeating of crimes
16) Preclude Remarks
· The measure of punishment varies from time to time according
to the nature of crime committed by the offender. There are different kinds of crimes
and different punishments are available against all kind of offences. Pakistan Penal
code, always follows the Holy Quran & Sunnah in order to give punishment for
Hadd crimes and there is no discretion of the judge on Hadd punishment because these
have been prescribed in Islam
Principle Of Criminal Law
Q # 01: Discuss actus reus and mens rea as
components in commission of
crime?
1)
Preface Fact
· Actus reus and mens rea are the foundations of the criminal
law. A fundamental principle of Criminal Law is that a crime always consists of
both a mental and a physical element. If a person knows the fact that his act is
a criminal activity under the law, it comes under the mental element which is mens
rea and the act itself is the physical element which is actus
rea. Mens rea means to have “guilty mind” and actus
reus means “guilty act” there are different kinds of crimes are being committed
on daily basis but the basis of all of these crimes are mens rea and actus reus.
An injury which is made without the mens rea is not a crime but may be an innocent
act. An act does not make a man guilty of a crime unless his mind is also guilty
2) General principle
· This principle based on the fact that alone actus reus and
mens rea cannot create liability because actus rea is “guilty act” and mens rea
is “guilty mind”, so there should be existence of both actus reus and mens rea to
make offender liable
For example
, A since two months is carrying mens rea for killing B.
One day A was driving
car fast. The car of A hits a person. But A does not
know at that time it was B because his back was towards A.Here this is actus reus
but not mens rea. Though A has been carrying mens rea for B since two months but
when A car hits B such as at the time of occurrence there was no mens rea but only
actus reus, so A will not be liable for murder but will be liable for killing recklessness
3) Meaning of actus reus
· The word actus reus is a Latin phrase which means to have”
guilt act”
4) Definition of actus
reus
· Actus reus is the Latin term which is used to describe a physical
activity that harms another. In order to establish liability the lawyers will have
to prove that the criminal was responsible for the act
5) Meaning of mens rea
· The word mens rea is a latin phrase which means “guilty mind”
) Definition of mens rea
· Mens rea is the Latin term which is used to describe a mental
intension of the criminal for the commission of unlawful act. In order to establish
liability the lawyers will have to prove the mental intention of the criminal behind
the unlawful act
7) Forms of mens rea
Following are the forms of mens rea. Details are as
under. Following of the all forms make liable offender punishable under the Pakistan
Penal code.
1. Intention
· Intention is an essential element to commit an offence. Because
offender knows that due to his commission of a certain act a specific result
will occur. That’s why, severe punishments have been attached with the crimes
which is committed intentionally because offender knows that a specific result will
occur
2. Recklessness (Ghaflat)
· Recklessness is an essential element to commit an offence.
Because offender knows the subsequent risks which will be occurred after the commission
of a certain act but offender knowingly ignores them and takes the risks. That’s
why severe punishments have been attached with the crimes
3. Negligence
· Negligence is an essential element to commit an offence. Negligence
means when someone fails to give enough care for doing something that he was responsible
for, is called negligence, if the offender was aware the risk and decided to take
it, he was reckless if he was unaware of the risk but he must be aware of it, he
was negligent, under the Pakistan penal code reckless man will liable and the negligent
will not be liable.
4. Strict liability
· Strict liability is an essential element to make offender
liable. Strict liability is the case
where mens rea is not required. Offender will be held
responsible for the criminal offence at the same time when he committed that illegal
act. They are not severe offence and have not severe punishments
8) Forms of actus reus
Following are the forms of actus reus. The actus reus in criminal law consists of all
elements of a crime other than the state of mind of the offender
1. Conduct
· The conduct is major element of any actus reus. Such conduct
can be consists of some acts. If the Conduct is voluntary act, in this case severe
punishments have been attached with the crimes which has been committed voluntary
because offender knows that a specific result will occur
· If an offender conducting an act under a strong pressure or
involuntary for example he is being threaten that he will be killed if he does not
commit a certain act, so in this case, he will not be liable for crime
2. Omission
· The omission is also an element of any actus reus. Omission
is basically a failure to do something; according to this a person can be liable
for a crime when he does not perform his duty positively as decided.
· For example, a person who has been hired on beach for saving
the life of people and he is under duty but if before him a four foot tall child
drown in five food deep pool, and he is not saving him from drowning , he is committing
the crime by omission, and under the law he will be considered criminal
3. Result
· The result is also an element of any actus reus because it
is relate to the result of the act or omission of the offender. It is possible that
the conduct may not be criminal but the result of the conduct can be criminal,
· For example, it is not a crime to throw a stone, but if it
hits a person or breaks a window in this situation it would be considered as
criminal act and offender will be liable for punishment under the law
9) Coincidence of actus
reus and mens rea
· Generally, in order to make a person liable for his wrongful
act, following two things must be proved.
Actus reus + Mens rea = Criminal liability
· It means that criminal liability only can be imposed upon
a person where there is combination of actus reus and mens rea is exist, no liability
can be imposed if any of them is missed at the time of occurrence. They must be
in combination at the time of occurrence
10) Exceptions to General
rule
· Generally, it is true that criminal liability can only be
imposed upon a person for his wrongful act with the presence of actus reus and mens
rea. But in some cases a person can be held liable for his wrongful act in the presence
of either of the element
1. Without actus reus
· In case of conspiracy (Sazish) against state, there is no
actus reus but only mens rea, in this case the person would be held liable for criminal
act. There is no need to prove actus reus in this case
2. Without mens rea
· There is no mens rea but only actus reus, in this case the
person would be held liable for criminal act such as violation of traffic rules
etc.
11)
Preclude Remarks
· There are two main elements of crime such as actus reus and
mens rea. The prosecution is required to prove actus reus and mens rea and the presence
of the two at the time of occurrence. Once it has been proved, the person would
be held liable for this wrongful act and will be punished under the provision of
laws. To impose liability upon a person there should be presence of physical involvement
as well as mental intention to commit a crime
Q # 02: Define crime and tort, and difference
between tort and crime. Also
explain the essentials and types of crime.
1)
Preface Fact
· There are several connections between tort and crime, they
are merged with each other but still have a lot of differences in between. Whereas
crime is a violation of rights of the people of the society, in which accused is
liable for punishment against his commit under Pakistan penal code. Tort is a violation
of some civil duty. A tort is a civil wrong committed by one party against other
party, in which the injured party can take legal action for recovery of damages
2) Meaning of Crime
· Crime means ,every offence which is punishable by law
3) Definition of crime
· Crime is an act which violates the public rights which have
been legally recognized by the state and are punishable under the law
4) Meaning of tort
· The word tort has been derived from Latin word “Tortum” which
means “to conduct”
Ø Oxford Dictionary meaning
Tort is a private or civil wrong
5)
Definition of Tort
· A tort is an act which injures someone in some way and after
getting injury the injured person can take legal action against wrong doer for recovery
of damages
) Difference between tort and crime
Following are the differences between law of tort and
criminal law. Details are as under
1.
As to parties
Ø In law of tort, parties are known as plaintiff and defendant
Ø In criminal law, parties are knows as state and accused
2.
As to punishment
Ø In tort, tortfeasor has to pay damages
Ø In criminal law, criminal are sent to prison
3.
As to procedure
Ø In tort, proceedings are regulated by civil procedure
Ø In criminal law, proceedings are regulated by criminal procedure
4.
As to intention
Ø Intention is not relevant in tortious act
Ø Intention is the crux of the case in criminal act
5.
As to defense
Ø Necessity is a defense in tortious act
Ø Necessity is not a defense in criminal act
6.
As to compromise
Ø In tort, compromise is permissible
Ø In criminal law, compromise is not permissible
7.
As to prosecution
Ø In law of tort, legal action is taken by injured person
Ø In criminal act, legal action is taken by state
8.
As to codification
Ø Law of tort is not codified
Ø Criminal law is codified in Pakistan penal code
9.
As to position of minor
Ø In tort, minor is liable for tortious act
Ø In criminal act, minor is not liable for criminal act who
is under seven year
10.
As to wrong doer
Ø Wrongdoer is called tort feasor
Ø Wrongdoer is called accused
11.
Nature of right violated
Ø Tort is violation of rights of individuals
Ø Crime is violation of rights of whole public
12.
As to role of state
Ø In tort state only provides a machinery of justice
Ø In crime, state has to play a significant role
7) Essentials of crime
Following are the essentials of crime. Details are given
as under.
1. Human being
· The first and most important essential of a crime is that
the act must be committed by a human being who:
Is being capable to commit a crime Has attained the
age of majority
Is not lunatic
Section 11 of PPC provide that the word person includes
a company or association or a body of a person whether corporated or not
2. Mens rea
· The second important essential of a crime is mens rea or mental
intention. There is no liability of a crime upon accused until he has no mental
intention to commit a crime. Even in strict or absolute liability some mental elements
are required. That’s why mens rea is a basic principle to held liable under the
Pakistan penal code
· Mens rea is the Latin term which is used to describe a mental
intension of the criminal for the commission of unlawful act. In order to establish
liability the lawyers will have to prove the mental intention of the criminal behind
the unlawful act. Qatal-e- Amd is a situation of mens rea in his nature
3. Actus reus
· The third important essential of a crime is actus reus. Unlawful
commission or omission is actus reus which is a physical practice of the accused.
It is said that actus reus has its roots in mens rea mean once an accused decides
to commit or omit something wrong which is his mental intention , while the
actus reus is the reaction of his mental intention.
· Actus reus is the Latin term which is used to describe a physical
activity that harms another. In order to establish liability the lawyers will have
to prove that the criminal was responsible for the act
4. Injury
· The basis essential of a crime is an injury which show that
there has been a crime committed against which injury made, there are several types
of injury such as mental torture, loss of safety, reputation hurting or property
loss as well as violation of private
and public rights also are caused by tortious act. Injury
includes all loses which produces after the commission or omission of a criminal
act.
8) Objectives of criminal
law
Following are the objectives of the criminal la
· The purpose or objectives of criminal law is the protection
of the rights of persons, right of property and right of reputation are included
in this law.
· The primary objective of the criminal law is to punish the
accused against the violation of public and private rights legally recognized
· The third objective of criminal law is to stop those who intentionally
or negligently violates the right of others
9)
Types of crimes in Pakistan
Following are the types of crime in Pakistan which are punishable
under the Pakistan penal code
1)
Murder
2) Rape
3) Robbery
4) Theft
5) Undue influence
6) Corruption
7) Cyber crime
8) Human trafficking
9) Attempt to suicide
10)
Preface Fact
· A tort is a civil injury and in tort, wrong doer is liable
to pay compensation while crime is a violation of rights of public which has been
legally recognized, in which accused is punished by state and crimes are not compromisable
but tort is compromisable. The difference between the criminal and civil wrong depends
upon the nature of remedy provided by the law
Q # 03: Discuss different
theories of punishments.
1)
Preface Fact
· The most common functions of a state are two, war and administration
of justice and administration of justice classified into two parts ,civil
justice and criminal justice. The purpose of the criminal justice is to punish the
wrong doer who is punished by the state. Purpose of punishment is to make men better
or protection of the society. With the passage of time, various theories for punishments
have been given by different jurists
2)
Definition of punishment
· Punishment is a method of protecting the society from criminal
by reducing the occurrence of criminal acts
3) Definition of crime
· Crime is an act which violates the public rights which have
been legally recognized by the state and are punishable under the law
4)
Definition of criminal justice
· Criminal justice is the body of law which deals with the offences
and the imposition of punishments for offender against their violations
5) Theories of punishment
There are certain theories behind the concept of
punishment
1.
Deterrent (Dra kr rokna)
theory
· According to this theory of punishment, purpose of punishment
is to deter the offender from committing crimes again as well as keep other people
away from committing the crimes
· The aim of punishment is not revenge but terror
Ø Criticism
There is a lot of criticism on the deterrent theory of
punishment in modern time
A) To harsh punishment creates the sympathy in the hearts of
people for offender
B) To harsh punishment makes the offender more cruel instead
of accept the fear of law
C) Harsh punishments lose its fear once the criminal is punished
2.
Preventive theory
· According to this theory of punishment, purpose of this theory
is prevention of the people from crimes which is only possible by disabling the
offender by imposition of different kinds of punishment such as imprisonment, death,
deportee, disables the physical power of offender to commit the offence again
· According to this theory all criminals should be imprisoned
and kept far away from the normal society without any connection to it. By using
this method, the society will be protected from the criminals.
Ø
Example
· An example of the preventive punishment is the cancellation
of the driving license of a driver
Ø
Criticism
There is a lot of criticism on the preventive theory of
punishment in modern time
A) When offender puts in jail, it breeds (Nasal) more crimes
B) For a long time keeping him in a jail with habitual offenders,
it makes him more cruel
3.
Reformative theory
· According to this theory of punishment, the purpose of punishment
is reformation of the offender, even if offender commits a crime ,
· He must be educated and taught some industrial arts during
the period of imprisonment so that he may be able to start his life after his release
from jail
Ø
Criticism
There is a lot of criticism on the deterrent theory of
punishment in modern time
· If a criminal to be sent in jail for transformation into a
good citizens, in this case, the will become a comfortable place for criminal. This
kind of behavior with the
criminals will be helping the criminal to commit more
crimes in future because they know that in prison they will not be punished
4.
Retributive (Badla)
theory
· According to this theory of punishment, In ancient age, the
only purpose of this punishment was only on the revenge
· The person wronged was allowed to have his revenge against
the wrong doer and the wrong doer will give the same punishment as had been suffered
by the victim
· The principle of this theory was “an eye for an eye” and “
a life for a life” and “a teeth for a teeth” was recognized and followed
Ø
Criticism
There is a lot of criticism on the deterrent theory of
punishment in modern time
· Critics points out that the retributive punishment is not
a judicial remedy for the crimes committed by the offender but retributive punishment
in itself abolishes the value of judicial proceedings and people start believe on
revenge which leaves a bad influence on the minds of people
5.
Compensatory theory
· According to this theory of punishment, the purpose of
punishment is to compensate the victim which creates a financial pressure upon an
offender who violates the rights of the people of the society
· If a victim may lose his property by the offender in this
case, according to this theory the offender will be liable to return the property
to his real owner
Ø
Criticism
There is a lot of criticism on compensatory theory of
punishment.
A) If offence is performed by a poor offender it is not possible
that compensation may be taken
B) If an offender is a rich person so the payment for compensation
may be not punishment for him
6.
Expiatory (compensation)
theory
· This theory is similar to the compensatory theory, according
to this theory; compensation is paid to the victim by the wrong doer.
· The idea behind expiation theory is that the current justice
system forgets about the victim or about their family, and just focuses on punishing
the criminal.
7.
Utilitarian theory
· The utilitarian theory does not support any particular theory
· But it is purely based on Penal measures and followers of
this theory believe that punishment is a method for reducing crimes ,no matter which
kind of punishment is give
· Followers of this theory say that the aim of punishment is
to achieve good concerns for this each and every kind of punishment should be given
) Types of crimes in Pakistan
Following are the types of crime in Pakistan which are punishable
under the Pakistan penal code
1)
Murder
2) Rape
3) Robbery
4) Theft
5) Undue influence
6) Corruption
7) Cyber crime
8) Human trafficking
9) Attempt to suicide
7) Objectives of
Punishment
Following are the objectives of the punishment
1)
The major objective of the
punishment is the protection of the life from offender
2)
Second objective of the punishment
is the protection of the property of the people
3)
Another objective of the
punishment is the protection of the state and country
4)
Theory of punishment aim
is the maintenance of the peace and equality
5)
Protection of the culture
and morality
6)
Most important objective
is protection of rights and liberties of the people
7)
The biggest aim of punishment
is to disgrace the crimes and criminal activities
8)
To prevent the other members
of the community from repeating of crimes
8) Preclude Remarks
· The perfect system of criminal justice cannot be based upon
any one theory of punishment because each and every theory has its own merits and
all efforts are being put in order to gain good results against criminals. The deterrent
aspect of punishment must not be ignored as well as reformative theory must be given
its due place. The purpose of the criminal
justice is prevent society from repetition of crimes
by offender and there are a lot of methods to keep offender away from committing
crimes again
Q # 04: Strict and
vicarious liabilities are two different criminal liabilities.
How they differ with each other?
1)
Preface Fact
· As a matter of justice, one who commits wrong is a wrong doer
and he will be held responsible for that wrong. Strict Liability is absolute legal
responsibility for an injury that can be imposed upon a wrongdoer without his mental
intention towards his tortious or criminal act and makes him liable to pay compensation
for damage. There are some circumstances where one is held responsible for the wrongs
done by the others. And this rule is called vicarious liability (indirect) liability.
There are a lot of factor, a court will determine whether or not the act was dangerous
in which wrong doer was involved
2) Meaning of liability
· An action for which someone is legally responsible is called
liability
3) Definition of strict
liability
· Strict Liability is absolute legal responsibility for an injury
that can be imposed upon a wrongdoer without his mental intention towards his tortious
or criminal act
4)
Definition of vicarious liability
· Vicarious liability is a liability when someone is held responsible
for the wrongs of another person. In a workplace context, an employer will be liable
for the wrongs of his employees and all wrongs which have been committed by employees
during the course of employment
5) Difference between
strict and vicarious liability
Following are the differences between the vicarious and
strict liability
1.
As to intention
Ø In strict liability, mens rea is not required
Ø In vicarious liability, mens rea is required
2.
As to liability
Ø In strict liability, person who commits wrong is considered
liable for his commit
Ø In vicarious liability, person is considered as criminal who
directly not commit the wrong
3.
As to proof
Ø In strict liability, it is difficult to proof intention of
the wrong doer
Ø In vicarious liability, it is not difficult to proof the intention
of the wrong doer
4.
As to defense
Ø In strict liability, there are a lot of defenses
Ø In vicarious liability, there are no defenses
5.
As to origin
Ø Strict liability has been imposed firstly in 19th century
Ø Vicarious liability is being imposed long ago
6.
As to wrong doer
Ø In strict liability, wrong doer may be responsible
Ø In vicarious liability, wrong doer may not be held responsible
) Kinds of vicarious liability
Following are the kinds of vicarious liability vicarious
liability
1. Ratification (Approval)
· Under the law of tort a person will be held responsible for
the wrongs committed by other. Following are the three ways which may allow the
court to hold responsible to a person who directly did not commit the wrong
1)
When a person gives approval
to do particular act with the full knowledge that it is tortious
2)
When a person gives approval
to do particular act even knowing that by doing particular act, responsibility surely
will arise against that person
3)
When a person to do particular
act on the behalf of his employer
In the ratification, the relationship is a necessary
element between the two or more persons
2.
Abetment (to help out)
· Under the law of tort a person will be held responsible for
the wrongs committed by other if he helps to commit the wrongs to others. In such
case, court will hold responsible for such person who helps to wrong doer for doing
unlawful acts against others
3. Relationship
· There should be relationship between the wrong doer and the
person who gave the order. Relationship is the bigger and essential element to hold
vicarious liability. Relationship may
be of Master-Servant, Principle-Agent etc.
Following are the kinds of relations between the persos.
Details are as under
a.
Master and servant
· A master is responsible to every act of his servant which
has been committed by his servant during the course of his employment. Any negligence
of servant which may harms to others in such case court of law holds responsible
to master for the wrongs of his servant
Ø When master is not liable
1)
When servant does not follow
the instructions of his master
2)
When act is done outside
of the course of the employment
3)
When servant has been performed
his duties and latterly he did wrong
4)
When servant did wrong outside
the authority of his master
b.
Principle and agent
· A principle is responsible to every act of his agent which
has been committed by his agent on behalf of his agency. Any negligence of agent
which may harms to others in such case court of law holds responsible to principle
for the wrongs done by his agent
c. Company and director
· In case of offence by company. Director of the company will
be held responsible for the wrong done by the company if the company works against
the policies of the company such kind of violence makes the director vicarious liable
for the wrong done
d. Firm and partner
· Under the law of tort, all the partners of the firm are liable
for wrong committed by any of the partner during the course of business of the firm.
The relationship of the partners is interlinked that’s why each partner is liable
for the act of the fellows.
e. Guardian and ward
· Under the law of tort, the guardian are not personally responsible
for the wrong committed of those minors who are under his charge but guardian also
can take legal action against the minors that they done some certain act on his
behalf
7) Basis of vicarious
liability
Existence of the following things is the basis of the
vicarious liability
1)
There must be wrong done
for vicarious liability
2)
There must be two or more
person one is wrong doer and second is who gave order
3)
There should be relationship
between wrong doer and second who is imposed liable
8) Kinds of strict liability
Following are the kinds of strict liability. It has three
major categories of strict liability
i. Animal
· A person who is possessor of an animal and the possessor will
be held responsible if animal harms the people and if animal destroys the
fields of the farmers because all of responsibilities go to his possessor that keep
the animal away from others
ii.
Dangerous activities
· A person who is performing such kind of dangerous activities
which may harm to others, in this case he totally will be held responsible for his
activity exercised by him , For example he has , fireworks, explosive materials,
as well as other high energy activities
iii.
Products liability
· If the product is defective at the time of sale ,the product
contained a manufacturing defect or is defective because of poor instructions or
warnings.
· Note: A plaintiff must prove that the product was defective
and it is necessary that such defect should make injury to his user
9) Exceptions of this
rule
Following are the exceptions of this rule, wrong doer
cannot be held responsible if one of the following
conditions is exist at the time of
occurrence of wrong done
1)
Consent
2)
Injured person himself wrong
doer
3)
Inevitable accident
4)
Act of God
5)
Acts of state
6)
Private defense
7)
Contributory negligence
8)
Mistake of fact
9)
Exercise of common rights
10)
Necessity
10) Preclude Remarks
· Any person is always liable for those act which directly has
been performed by his own but there are some circumstances when a person is being
held responsible for the acts which
has not been committed by him directly such theory is
called vicarious liability or joint liability. Major essential of vicarious liability
is a relationship between the wrong doer and the person who has been held responsible
on the place of wrong doer. Relationship have different kinds such as master and
servant, principle and agent, company and director , partner and firm etc. Following
of the three main reasons which become reason of vicarious liability such as ratification,
relationship and abetment etc.
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