Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:00:43 PM

Course Contents:

Definition: Crime is an illegal act or omission prohibited by and punishable at law; and for which a special procedure is provided at law to punish the offender.

Act is a series of acts. Extreme negligence means where crime is committed, and omission is a state of act.

There are some acts, which look like crime, but they are not crime. Accident on road requires the attention of the people to the victim but no one pays attention to victim. It looks like crime but actually it is not a crime because law has not imposed us a duty to pay attention. There are some acts, which do not look like crime, but they are crime. An innocent baby whose parents have been died and he is on the disposal of the guardian and they do not pay attention to fulfill his requirements of food and rest. This does not seem crime but actually it is crime because they have not fulfilled their duty to save him from danger.

Another important factor, which should be proved during the process of pleading, is intention of the crime. If factors are there but intention of the crime is not proved, it will not be crime. Shock to mind is also a kind of injury. Crime is wrong against whole society in which we live. Tort is wrong against one person but crime is wrong towards people or society. Crime proceeds in criminal courts, while in torts a complaint is filed. Defendant is guilty. Burden of proof lies on plaintiff. Crime against society is not compromised. Homicide does mean killing of man unlawfully. Where there is love there is war.

When the state’s machinery of administration comes into action to punish the offender which is against the law, which is criminal law. Rights and duties are correspondent each other. Nature, history, defamation, and intention, are ingredients and characteristics. State maintains the peace in the society. State up-keeps the role of morality. Mental abnormality, social justice, family problems, injustice, poverty, lack of coordination between institutions, and education are also a cause. Also police does not function properly.

Occasional criminal is the man who commits single crime. Our institutions are just educational centers rather than training Centers. Why the rate of crimes in USA and UK is higher than of Pakistan? There is less punishment.

Criminal liability: Brain is origin of act of crime. Wishes and determination put person into crime. Crime is a series of chains connected with brain to the resulted form/shape. Revolver is taken out and someone is killed. This is kind of direct crime. If you have trained dog and gesture to dog to attack someone, that is indirect act. This is done through an agency. Little boy is also can be used as an agency to commit a crime. This will be indirect crime. Some crimes are contributory, i.e., two truck drivers hit both trucks each other, and they will be called contributory negligent. Some crimes are committed during the state of provocation. They have less punishment. Negligence is also a crime. All the results, which can not be foreseen, are not crimes. Action must be connected closely; otherwise it will not be a crime.

Abetment means help in crimes. Case is something, which is decided by the Court. Name of Plaintiff or State come first and then defendant or accused. In criminal cases plaintiff is state. All crimes are committed against state.

A person who has not provided medicines to his child who resulted in death held not responsible because his religion or belief was obstruction in his decision. Crime cannot be proved until the element of mens rea is proved. Where there is absence of foresee-ability, there is no guilty of murder.

Intention means thinking before action, and Action thinking after intention. Intention can be judged from circumstances of the individuals.

Subjective Test: Thinking of the accused person.

Objective Test: Thinking of society about accused person.

Now-a-days objective tests are being used in all over the world. Low intensity of crimes involves low intensity of punishment.

Motive means move, desire, wish, ill will, hatred, love, emotions, reasons, ego, and complexes. A motive is proof of intention but is not essential against actus rea. Rule of transfer of Malice. A crime in which intention was different but result is same it is also a crime. Where there is no original crime there is not crime at all.

Anwar & others – v – State (1964) PLD 378: Two persons were quarreled on the purchase of goat. They separated but again they quarreled and accused struck a stick on the head of plaintiff, which caused death. Held that there was not intention to kill and there was no foresee-ability to case death, so it is grievous hurt and not a murder case.

In a different case Woolinetion - v - State, a knife was used in the similar situation and held that accused was guilty of murder because there were foreseen consequences.

Negligence: It denotes to such blameworthy inadvertence and who negligently brought harm upon another, can be under a legal obligation of injury, which may sue him in the Court for damages. Negligence means perception of a risk, which falls below from the standard expected of a reasonable person in the light of risk. A person is negligent if any other person can foresee the consequences and accused fails to foresee them and fails to take steps to avoid them. Careless or speedy driving is the example of negligence. Negligence is also a state of mind, hasty actions, risk taking situation, laziness etc. In the cases of negligence, prosecution does not need to prove mens rea on the part of the accused.

Nazir Ahmed – v – State: In this case a family was proceeding elsewhere. A third person gets started fighting with husband. Husband was being beaten. His wife intervenes to escape her husband. A child was in her lap. Offender gave a blow to child in which consequences he died. Held that he should be taken notice of the child at that time.

Issa Khan – v – State: Driving at fast speed on a clear road is not unreasonable, but cannot be said in case if road is not clear, and while the vehicle is on wrong side of the road.

Ghulam Muhammad – v – State: In this case a person was driving a car safely on a road. A person was in try to cross the road. When car came near to him, he suddenly tried to cross the road and get injured and dead. Held, that rash and negligence is not committed on the part of driver because it cannot be foreseen that one person on the roadside would try to cross the path of the running motor vehicle which had already reached to him.

Recklessness and negligence: Nature of guilt, seriousness of actus reus, injury, percentage of intention, quantum and quality of guilt is considered while deciding the criminal liability. There is no full intention in negligence. That is less than 100%. A child who is dead by the negligence of speedy car driving is not guilt of murder because there is no intention to kill the deceased child. There was no pre-planed incident. But it should be noted that driving at the speed of 100 kph at Wahdat Road could not be claimed negligence. There was neither personal clash nor dispute so held he is not guilty of murder but he is responsible of less than guilty of murder.

Recklessness is extreme type of negligence. Recklessness means over hasty act done.

1.      Chief Constable of Avon & Somerset – v – Shimmen: A person was demonstrating his skill near a shop’s window, misjudged his kick and broken the window. He admitted in his statement that he had thought about the risk of breaking the window but he ignored the risk. Held that it is sufficient for Court that there was awareness on the part of accused, so he is liable. He was guilty of negligence.

2.      Mitchell’s Case: In this case some people were standing in a queue in a post office. There was an old lady of 89 years old. Accused acted to push her and as a result she got injured and died. Held he committed the manslaughter at lesser rate. He is not guilty of murder but he is liable.

3.      Pembliton: A person had been fighting with others. He threw a stone to hit them which missed and broken the glasses of a window of a nearby public house. His intention was to injure the persons and not to injure property. He was not criminally liable but it is a civil negligence.

Rule of Strict Liability: It means exclusion of mens rea. Offences committed without criminal intention are liable. A person may liable in some cases under strict liability rule although he has no mens rea to commit an offence. Law respects everyone and give liberty to everyone enjoyment of freedom and hold property. People are supposed to behave in civilized manner. Mistake, as a defence is not excused.

Strict Liability at Common Law:

Public Nuisance: It does mean act which interferes with the enjoyment of a right which all members of the community are entitled to, such as the right to fresh air or to travel on the highway. A plaintiff may claim damages against the injury he got. Noise of horns, dangerous driving, spreading of wastage, covering of main road for marriages, smell of ghee mills, open trench having bad smell, obscene literature or photos, abuses to religion, are the general types of the public nuisance. Ten years imprisonment is awarded in England.

Everyone is expected to be careful in his actions whatever and whenever he or she is. Everyone is liable against his wrongdoing, which falls under strict liability. Intention or mens rea as to matter of defence is not excused. It has two kinds, first is Strict Liability at Common Law and second is Statutory Offences. Common laws are those which are statutes applicable in courts. They are gradually come into existence. Statute offences are those which are declared crime under statutes, i.e., Food Control Act, one who consumes the food and faces hazardous consequences, may sue the manufactures or seller of that product. These rules are made to save the public health. In these cases question of intention does not arise and only the consequences stand the accused liable. If during the filling of cold drinks like Coca-Cola, some dangerous material is mixed in bottles and injures the person who consumes it would be liable for these dangerous consequences. Company would be responsible because health of people is prime object that is enforced under strict liability rule and intention is not considered. All people are expected to be more careful. The Sales of Food Act says that no one food item can be sold with label which is wrongly linked with it. Rules of traffic are also an example of strict liability. Actus Reus unknowingly is no defence. In these cases on the part of plaintiff on injury or harm is to be proved to establish liability and reasonable care was not taken. In a case of Sweet – v – Parsely, in which a house was rented out to the persons unknowingly whatever they will do business in the house. They started the business of cannabis (Chars). It was held a crime. He pleaded that he was unaware and did not know that what business they hold and I had no intention while renting out my house.

In other case of Sheppard, parents did not take care of their child who got injured and held, liability on the part of parents although they had nothing intention. This was held under The Child Abuse Act, 1861.

Parties to a Crime or Law of Complicity: It means commission of crime of two or more than two offenders together for which they have planned to commit to achieve particular results. It is also a conspiracy of a party for the purpose of robbery. They commit crime together and then run away from the place where they commit the offence of robbery or other crime. This is called complicity, partnership in a crime or wrongdoing, and all are responsible of commission of an offence.

There may be different situation arises for the purpose of responsibility of committing a crime. Pakistan Penal Code § 34 & 149 both regard the assembly guilty of offence by way of encouragement, advice, provoke, committing of crime. One who is behind is also responsible. One who keeps watch on main gate or door, one who is sitting in a car, one who supplied weapons to commit a crime, one who himself do not commit a crime but use an innocent agent to commit a crime, all are responsible jointly.

In a case a mother used her daughter to give a powder to his father for the relief in cough, which was actually not powder and was poison. This fact being not known to the daughter, father died. It was held in a Court of justice that mother is a guilty of murder since the daughter lacked mens rea. If an agent has sufficient knowledge then he may be held guilty by way of abetting. In the case of Nawaz Sharif and Bhutto, both has/had conspiracies to commit crime through agents and all will be/were held offender and punished.

Conspiracy maybe made in other city or in scattered form on different places or on the same place, but in any case it is crime of party together and all are guilty. If one of two commits murder, both will be responsible of crime on the ground of consequences brought. No one can say that I have not killed the person, this is not an excuse. No doubt that only one person killed another person physically but second one has encouragement for his companion. There was sharing intention to commit a crime. Both were gone together to commit crime, so punishment will be same. Intention is so important in such crimes. Mixed intention which bring consequences, sharing with each other’s, same results, makes the offenders responsible.

Animal like trained dog can also be used to commit crime and indirect crime cannot evade the offender. Common intention is common desire, which bring same results. One who abets in commission of crime is punishable equally because acts are equal. Mens rea is no more important while ends are so important.

One of two is in better position to kill a innocent person; other will also be responsible. When the objective is achieved with sharing or common intention then all will be guilty of offence.

An Assembly of five persons plans to commit robbery, three of them enter in a home, one sits in car, and one keeps watch on gate. All have committed robbery and equal punishment will be imposed. There is ten-year imprisonment either simple or rigorous with hard labour.

If a member of unlawful assembly deviate before the crime is started then he would not be guilty of crime, but if he deviates after the crime is started, then he would be liable for the half of the crime and half punishment will be inflicted.

Robbery involves weapon, arranged by consents, and may be attack for the purpose of robbery while thieves never carry weapons, commit without consents, have not knife, and they resist but not attack.

If the intention is not there, there is no crime at all and nothing is punishment. Friend of offender may not be held guilty if he has not intention. Violence is also a crime. If one of unlawful assembly kills a person with arm, who had intention of robbery, rest would not be responsible of murder. And if three persons rape with someone after they entered in a house for the purpose of robbery, rest would not be held responsible for rape offence.

Main offender is that who practically/actually commits crime while abettor is that who does not commit actually offence, but instigate or provoke or encourage or advice or orders to commit offence. Main offender is also called perpetrator while abettor is helper in commission of crime. One, who provides weapon to commit crime knowingly, is responsible. Accomplice/helper in crime, do not play active role while principal offender commits offence. Accomplice also desires to obtain similar results or actus reus. He shares the responsibility. If the principal offender commits the offence for which he was not authorized to commit by accomplice, abettor shall not be responsible for such offence. Murder is expected in robbery so he would be liable for murder if occurred during the course of robbery.

Drug trafficking by policeman to reach to gang, who actually sale, purchase, deals, is not considered accomplice while actually it is a accomplice. This practice is adopted to apprehend the original offender. In USA, this practice is not allowed while in Pakistan and England, it is allowed.

Victim in crime is responsible if capacity is there. A girl under 16 years of age is not liable for conviction of intercourse even she had consented. But in Pakistan it is a crime even it is committed by less than 16 years of age girl or above 16 years of age. It is called rape or adultery. Her consents are no considered. A child under 18 years of age is not liable in criminal cases.

One who has share intention may withdraw within reasonable time before starting the commission of crime. If he withdraw after the commission started then he shall be liable equally. If he withdraws before reaching to home for which he had consented of robbery, then he is not responsible for robbery. How the withdrawal is shown? Mere expressive form is insufficient; there should be practical withdrawal. If A instigates for the commission of crime B, while B commits crime in the absence of A, both will be responsible.

Commission of the acts, which are not authorized, may not raise responsibility. Employer is not criminally responsible for the crime committed by his employee for whom he was not authorized, but vicarious liability may arise in civil case.

Husband and wife are considered one in each other’s cases. If husband commits crime, wife shall be responsible, but if they are separated, then liability arises on individuals.

Insanity is a situation in which accused commits a crime in the absence of mens rea. His act under the PPC S. 84 is without mental capacity so he does not know what he has committed actually. He cannot understand the nature of act he done. If the following act is done in the state of total insanity then he cannot be convicted, because this was the state where a person commits crime without any intention. Total insanity is defence.

Defective mind is another state of mind, in which accused knows what he is going to do. It is a kind that can be said stupid, idiot, not intelligence, malfunctioning etc. A total incapable human being does not recognize the situation arises before him, i.e., a man sitting on a chair seems to be a jar or ghost and he stabs him without knowing the actual position of him or he hits axe to him. Held not guilty of murder but homicide. It is cleared from another example.  During a sever cold season a mad man puts fire on the camps or tents for poor to get heat for himself, everything is burnt and people were going the here and there, but he is too calm and getting heat from fire, puts him in a total insanity. He is not aware what is doing and it made no effect on him what he done. He cannot be held guilty of crime.

People who are temporarily insane and their passions can easily be provoked; they cannot put insanity as defence. They know their act. They are too violent. They may commit murder. But if at the material time, i.e., at the time of committing murder, someone gets insanity, he is guilty of homicide but due to insanity he cannot be convicted. Such type of person must be sent to mental hospital for medical treatment and due care. He may be released from hospital upon total recovery.

A man, who suffers from depression, cannot put it as defence. He knows the nature of crime and also knows that murder is a crime. But partial insanity is a defence upon the proof that at the material time he was insane.

Sleepwalking is a sort of disease in which a person may stab someone. He cannot be convicted provided at the time of stabbing he was suffering from sleepwalking. Magic, witchcraft, ghost, elf, are not recognized in law and cannot be put as defence.

There are two types of impulses, i.e., resistible impulse and irresistible impulse.

In resistible impulse, i.e., in the state of strong feeling, a person may resist to do anything. For example, there is a golden watch and you think you steal it. Your mind does not allow stealing it but you steal it. It is called theft so it is not a defence. You will be liable. But in case of irresistible impulse, a man cannot resist in doing anything. Particularly in sex crimes someone may not resist in the commission of rape. He would be guilty of rape but his punishment may be reduced.

Everyone is presumed sane until contrary is proved. Allah punishes madman only and courts cannot punish him because he cannot discriminate between the right and wrong. They do not know whether what they are going to do. Sleepwalker may also stands, goes, drink, and come back and sleeps. Insanity must exist at the time of commission of crime. Man who was suffering from the insanity at the time of committing of crime is not responsible. Insanity while drinking is not a defence in all over the world.

Following points are important in insanity:

1.      Illusions.

2.      Delusions.

3.      Impulsive Insanity.

a.      Resistible Impulse.

b.      Irresistible Impulse.

4.      Fits of Insanity.

5.      Insane/Sane – State of Mind.

6.      Legal Insanity.

7.      Medical Insanity.

8.      Insanity due to Intoxication.

Defect of Reason: Clarke – v – State: Shoplifting is a kind of theft in which accused steals from shop without intention due to absent mindedness and lack of control over his senses. In the said case accused was patient of diabetic and due to sugar deficiency he lost his senses during shopping and steals something without having intention. It is partial defence. Held guilty of theft but punishment was reduced.

Burgers Case: This is a case of sleepwalking in which a man wounded a woman while sleepwalking. There was medical evidence indicating that at the material time he was suffering from abnormality due to an internal factor. Held disease of mind. It is complete defence.

Byrne – v – State: A man was sexually perverted and had desired to satisfy. He raped a girl and later killed. He was charged of murder but he pleaded diminishing responsibility. Evidence of strong desire was there. Held guilty of murder and punished with life imprisonment.

Provocation: It is a loss of self-control due to faulty reasons temporarily. There should be reasonable relationship, immediate reaction, and punishment commensurate to the provocation. It is a state of mind in which intellect deadens. It happens when self-respect is injured. It is complete defence. There are many reasons that provoke a normal person, e.g., cultural background, sensitive insanity, climatic conditions, weather, literacy, habits, emotions, weaknesses, health etc. An illiterate man in Baluchistan gets immediate provocation than of educated of Lahore on reason of passions. Upon abuses of sister, an educated person of London does not provoke but it provokes to educated person of Lahore, on the ground of culture.

Edward – v – State: In this case accused followed the victim from Australia to Hong Kong for the purpose of blackmailing. Accused went to hotel to see victim. There was fight between two of them. Accused claimed that victim attacked him with knife and inflicted several wounds. Consequently he snatched knife from him and killed him. It brought to the notice of Court that accused was provoked. He was not guilty of murder but manslaughter.

Fateh Muhammad – v – State: Accused killed his wife while she was found in objectionable condition with her paramour. Held provocation to be accepted as defence.

Rehmat Ullah Khan – v – State: Accused was a policeman, posted on duty near to home. His wife came to him naked and told him that a man had entered to home and outraged her modesty and she had locked him in a home and come to inform him. He lost his self-control and went to home and fired three shots and killed. Held provocation is a good defence in this case.

State – v – Khushi Muhammad: Accused killed his wife simply on the base of doubt of intimacy with someone. Held he is not eligible to get the benefit of exception.

Intoxication: Who takes intoxication is liable and it is not a defence in all over the world. If it is administrated involuntarily, then it is defence. A man drunk heavily and killed his wife. He claimed no guilty. Held voluntary intoxication is not defence.

Automatism: There is no provision of automatism in Pakistan Penal Code. It is a state of mind in which act of a person is beyond his control, is known as automatism.

In the case of Hill – v – Baxter, it was said that accused was driving and attacked by swarm of bees, he lost his control over driving and an accident happens. In another case motorcyclist lost his control when he received a sudden blowout or brake failure.

Difference between Crime and Tort: It is very difficult to draw a clear-cut distinction between a crime and a tort. A tort today may be a crime tomorrow and vice versa. Tort is a private wrong or infringement of a civil right while public wrongs are violations of rights.

If the offence is serious, it maybe treated as crime, and if it is not, it may be treated as tort.

Definition of Crime: Crime is an illegal act or omission prohibited by and punishable at law, and for which a special procedure is provided at law to punish the offender.

Definition of Tort: Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action of un-liquidated damages.

Judicial Decisions: Tort involves a civil remedy or damages while punishment is imposed in crimes.

Case Proceedings: Tortuous or civil proceedings are started in civil Court purpose of which is enforcement of certain rights claimed by the plaintiff against the defendant. Examples of civil proceedings are an action for restoration of property, recovery of damages, etc. Proceedings of crimes are started in criminal Court for the punishment of offence.

It is possible that torts may give rise to civil and criminal proceedings, i.e., assault, defamation, theft, and malicious injury to property. In these cases both proceedings are concurrent proceedings. The wrongdoer may be punished by imprisonment or ordered to pay compensation to the injured party.

Magnitude of Wrong: Civil liability is measured by the magnitude of the wrong done while the measuring the criminal liability we take into consideration the motives, intention, character of the offender, and the magnitude of the offence.

Nature of Wrong: Tort is a breach of duty primarily fixed by law which duty is towards persons generally while crime is the commission of prohibited act with ill will or guilty mind.

Nature of Decisions: Punishments are awarded for the purpose of deterrence in crimes while remedy in term of cash compensates the victim. In other words chief object of punishment is deterrence while remedy in the form of damages is imposed to take measures for prevention of violation of private rights.

Elements of Wrongs: Mens rea requires to constitute the crime along-with actus reus while only action is sufficient to constitute tort and ill will is no more necessary. One, who trespasses another’s land or body, must have to pay damages.

Crime does not complete until or unless actus reus takes place. Just mens rea is insufficient to constitute the crime while tort may occur without injury, i.e., simply trespass to other’s property is a tort without injury. Here maxim “injuria sine demnum” applies.

Compound-ability of Wrongs: Tort is compound-able by the private party and state cannot interfere or compel for the withdrawal of case because crimes are against the state and not compound-able being public wrongs.

Parties in Cases: Both parties are private or common persons in tort as plaintiff and defendant while state is a party being victim in criminal proceedings and other one is accused.

Attempt in Wrongs: An attempt to commit a crime can itself be an offence while attempt is not considerable to constitute tort.

Commencement of Wrongs: Crime requires preparation while tort can be committed without it.

Defence as Innocent Actions: Innocent action in crime may be a defence in some cases but tort does not recognize innocence.

Age Limit in Liability: Child under the age of 7 year is regarded by law as “doli incapax” incapable of having mens rea while tort may takes place by an innocent child and he may be sued through his next friend, i.e., parents or guardian.

Defence of Insanity: Insanity is a good defence in crime but not in tort. Provocation or instigation or temptation is defence in crime but not in tort.

Intention of Wrongs: “Crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment. While a crime is often also an injury to private person, who has a remedy in a civil action, it is an act or default contrary to the order, peace, and well-being of society that a crime is punishable by the state.” Action under mistake is not a crime. For example, a policeman goes to arrest A, but actually he arrests B, thinking to be A. since he has not guilty mind so he is not responsible, while mistake is not considered in tort at all.

Unborn Children’s Liability: Unborn child can sue after he is born in civil cases but there is no legality of unborn child in crime.

Waiver: Criminal law does not allow waiver in case where privilege class has been exempted from liability while in tort waiver can be used.

Codes applicability: Criminal Procedure Code is applied in criminal cases while Civil Procedure Code is applicable in civil or tort cases.

Pakistan Penal Code (PPC): Territorial and Extra-Territorial Jurisdiction: § 2 & 3 deals with territorial jurisdiction. PPC is applicable in entire Pakistan. Where there is no control of Pakistan, e.g., FATA or FANA, there is Jirga System. People decide their cases with traditional method in which sages decide their case with mutual consultation. This consultation is made among similar people. They have their own customary laws. If offence is committed in Pakistan and offender is run away to FATA or FANA, he is arrested through Political Agent.

Sea limits were 14 kilometer, and now have been extended upto 27 kilometer. Any crime committed within this limit, or on ship bearing Pakistan Flag, is considered as committed in Pakistan and tried in Pakistan under PPC.

Any crime committed in space of Pakistan is just like committed in Pakistan. It will be treated as the same manner. Crime committed either in PIA or British Airway is likely committed in Pakistan. Ambassador, Foreign Sovereigns, Diplomats are immune being diplomatic community.

If Pakistani national commits an offence in England, he can be arrested and brought in our Court for trials.

Prisoners of war are tried under martial laws and not under PPC. If English or American businessman has committed offence, he also can be tried under PPC.

A person, who commits hijacking or kidnapping, commits crime from where he passes or where he reaches. An offender who commits hijacking in Lahore, later he reaches at London, then Kabul, he commits crime at all places. He can be tried at the place where he will be arrested.

If an accused has committed a crime, arrested, convicted, and punished, the same series or one of them cannot be repeated.

If there is no man land between the two countries, accused will be tried, forces of which country will arrest him. Persona non-grata is the person who commits crime but being diplomatic community he is immune to convict and is declared person not acceptable being diplomat.

Moveable Property means property that can move from one place to another. Anything which is moved must be corporeal, i.e., solid. It can be touched with senses. Anything that is fixed or attached with the earth either directly or indirectly is not moveable property. House is fixed in earth. Ceiling fan, black board, tree, flower, tube light are not moveable properties, but as soon as they are removed from the place to which they are fixed or attached, they become moveable property. Moveable property can be stolen. Tonga attached with horse is stolen wen horse is stolen and all other thing which lied in it. In other words moveable property can be taken away by thief. S. 22 deals with moveable property.

S. 23 deals with wrongful gain and wrongful loss. It means taking away of property from its master even for a while with the intention to wrongful loss to him. It deprives owner to get benefits arises from the possession. If A takes away a thing from B, without his consents, with the intention of keeping it until he obtains money from B as a reward for its restoration. It has caused wrongful loss to B and wrongful gain to himself and thereby commits theft. If a watch is purchased from market, it is not theft so there is not wrongful gain or loss. If a person purchases a stolen watch from market without knowledge of its theft, he commits no theft, so did not neither gain wrongfully nor wrongful losses. If A steals a watch, and B steals it from A, and destroys it, he has not wrongful gain and not wrongful loss to A, but he has caused a loss to the actual owner of the property.

S. 24 belongs to dishonesty. Whoever does anything with intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly. Here dishonesty is different than of its general sense. It refers to property only. Intention is important. If A does commit theft with the property of B and C looks whole the game but conceals the facts, he committed not dishonesty but it is a moral wrong.

Fraudulently, u/s 25, means a person to do thing fraudulently if he does that thing with intent to defraud but not otherwise. If a person produces a forged document before Court with the intention to make the Court believe that he was entitled to recover money upon the basis of document produced. If a student produces forged degree to get admission in college, character certificate with forged signature that does not appear correct actually, is called fraudulently. It includes deceitful means to do that is not to be done. Fraudulently is a broader term while dishonestly is a part of it. Property may not involve in it. Dishonesty covers gains and loss in property. There are certain acts, which are both dishonesty and fraud.

S. 26 deals with Reason to Believe. It means standard of reasonableness. It means opinion of average person in a street to think about a particular thing. If A stabs B thinking that it does not cause death, would be tested by the opinion of other people in the same cadre. If a doctor operates a patient and he died would be tested by the opinion of other doctors involved in the same operation. Knowledge, which is based on reasonable information or skill, is called reason to believe. If we purchase anything from open market, cannot be think stolen thing because we have taken reasonable care. But if there is vast difference in price, then there should be doubt. Ghosts are not reason to believe in case of murder. Although Quran has specified ghosts but for the convenience to decide cases in this world it has no reason to believe.

S. 28 is related to counterfeit. It means imitation for the purpose of deceives to other person. If an ordinary person in street feels something is original, although that imitation is not exact, even then that is counterfeit.

If someone prepares currency Notes which resembles to original and deceives anybody, amounts counterfeiting. Bankers are not deceived, so then it is does not amount counterfeiting, but shopkeeper is deceived then it is counterfeiting. It relates to deceive a common person.

Counterfeiting is offence when society is deceived. It can be found in everything such as manufacturing of cloth. Made as Japan is also counterfeiting because ordinary person is deceived. Three years imprisonment is the punishment. Forge documents for the purpose of transfer of land is counterfeiting. Japan Fan is not counterfeiting because it is a name of company and its products are made and acclaimed made in Pakistan.

A document u/s 29 is a material written or described on any substance and carries some meaning and can be produced as evidence in Court. All written materials regardless written on cloth, paper, stone, leather, tree, bones etc. is document if it carries some meaning within the meaning of this section. It is may be as ABC or 123 or ?-@$/=, but it should must carry meaning. Bloodstains on cloth are also a document. Black board, affidavit, engraved name on tree, glass, plastic, iron, brick is document. Engraved engine number on motor cycle or pistol is document. Wound mark on body is also a document, but an expert should medically examine it and his report will be a document.

Valuable Security S. 30: It is a type of document, which creates legal right, terminates, extends, transfers, restricts, or releases the rights is valuable security. Payment through cheque, draft, money order, are valuable securities. If I sell my home my rights are finished and rights of buyer are created through sale deed, which is valuable security. All documents are not valuable security but all valuable securities are documents. Copy is not valuable security. Cancelled cheque or draft is not valuable security.

Common intention S. 34: It means prearranged plan to commit a crime or the intention, which brings same results. It applies where more than one and less than five person are engaged together to commit a crime. They know each other’s intention and they share it together. Responsibility is shared and results are obtained, it constitutes common intention. Equal desire and intention make people equally responsible and equal punishment is given. Peaceful intercession does not constitute common intention. Conspiracy between teacher and disciple is common intention.

Common object u/s 149 has resemblance with S. 34. It is applied where five or more persons of unlawful assembly commit offence.

Voluntarily: It applies to criminal intention direct or indirect, express or implied. Direct or express intention is proved with confession while implied or indirect intention is proved with evidence. Many witnesses may appear in Court of law to testify that particular offence has committed. If A is driving a car rashly and consequently a passerby is caused death, does not amount voluntarily, because there is no intention to put passerby to death. In another example A, sets fire on a home by night, for the purpose of facilitating robbery and thus causes death, it does not constitute murder but manslaughter.

Injury as per S. 44 denotes to harm or fear of harm, to body of person, reputation, property, or mind of a person. Injuries to mind means where somebody gets mental shock due to illegal act of another person. Injury to property means trespass or arson where both criminal and tortuous liabilities arise. A car met an accident; it is injury to car and damage as well. A police officer detains a person and then release him upon receiving money; he has put him in fear of injury.

Good Faith u/s 52 means anything, which is believed or done with due care or attention. It is also a defence in criminal cases. It includes recognized method, care, and qualification in most dangerous professions.

Doctor should apply recognized method of operation over a patient, who is not qualified, cannot put previous cases as proof. If person on footpath applies operation methods over a patient and patient dies, cannot say that he has been applying these methods previously with positive results.

Types of punishments under Pakistan Penal Code (PPC) inflicted to criminals:

Following are the punishments available under Pakistan Penal Code (PPC) inflicted to criminals:

Death: This punishment is inflicted in case of murder, waging war against government, mutiny, double murder, high jacking, robbery, false evidence in same cases, rape, false claim of apostasy, abetment in all following cases. Death penalties also abolished in England, most of European countries, and some states of USA. However, even in these countries, death penalty is still awarded for the offences of treason, double murder, and murder of member of royal family. Killing of Prime Minister and President is also a liable to death.

Imprisonment: It means to put wrongdoer in jail or put behind bars to live in till its completion. It has two kinds as follows:

Rigorous imprisonment: It includes hard labour or working. Accused has to do carpeting, grinding, handicraft, or digging earth etc.

Simple imprisonment: Accused is put in jail to stay there without doing anything.

Length of imprisonment: Maximum imprisonment in a single case is life imprisonment, i.e., 14 years and minimum is till the rising of Court, e.g., whenever judge will leave, accused will be free. To decided simple and rigorous imprisonment is not a discretionary matter, but it is matter of law, whatever it is.

Imprisonment in default of payment of fine: If offence is punishable with both imprisonment and fine, then imprisonment in default of fine shall not exceed ¼th of the term of imprisonment which is the maximum fixed by law for the offence.

Following is the scale of imprisonment in case of default:

            Fine                                                     Imprisonment

            Upto Rs. 50/-                                     02 months

            Rs. 51/- to Rs. 100/-                          04 months

            Rs. 101/- onward                              06 months

Whenever fine is paid, imprisonment is finished. If it is paid partially, imprisonment is abated proportionally.

Solitary confinement is a mental torture to accused. The purpose for keeping the prisoner in solitary confinement is to isolate him from any kind of discourse or contact with the outside world. It is inflicted in order to provide an opportunity to the prisoner of feeling of loneliness for creating wholesome influence to perform him. Following scale is followed:

Solitary confinement of:

One month                                      =    if term of imprisonment is not more than six months.

Two months                                    =    if term of imprisonment is not more than one year.

Three months                                  =    if term of imprisonment is more than one year.

Solitary confinement cannot be awarded in lieu of fine as part of imprisonment. It shall not exceed 14 days at a time with intervals between the period of it and it shall not exceed seven days in any one-month of the whole imprisonment awarded, with intervals between the periods of it.

Fine is awarded in deserter concealed on board merchant vessel, abetment in bribery, liable, agent for the benefit of riot, false statement for elections, illegal payment in elections, noxious atmosphere, nuisance, and lottery office.

Whipping in alternative or in some cases additional punishment for certain offences. It is awarded for theft, wrongful confinement, rape, unnatural offences, robbery, and dacoity.

Detention in reformatories: This is imposed on teenagers or young children. They are left with their parents upon first offence. Sometime they are sent to reformatory centers or schools where they get education to become good citizens.

Forfeiture of property is orders in waging war to government and illegal disposal of property.

Hadd means a thing which distinguishes the two ones. Extreme of a thing is also called a Hadd and it is a fixed punishment in which judge has no desecration to inflict on offenders. These punishments are described in Quran. These are seven in numbers, i.e., theft, murder, dacoity, apostasy, adultery, mutiny, and alcohol consumption. These punishments include simple and rigorous imprisonment, whipping, stoning to death, beheading, amputation of hand and foot, and fines etc. Punishments are inflicted keeping in view of severity of offence.

Taazir is unfixed and discretionary punishment in Islam. It is other than Hadd. It is inflicted as the magnitude of the office is.

Retaliation or Qisas is a punishment, which is also fixed by Allah. Qisas is compound-able punishment while Hudood are non-compound-able. Qisas is the infliction of the pain in the same manner and on the same part of the body, without any discrimination. It means punishment by causing similar hurt at 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-e-amd. The basic principle of qisas is equality or similarity. It aims at to cause similar hurt at the same part of the body of the convict as far as possible, keeping in view the opinion of the authorized medical officer as the offender has caused to the victim.

Diyat or Blood Money means the punishment in the form of compensation to be paid by the accused to the heirs of the victim.

Exemptions (defences) in Pakistan Penal Code (PPC):

1.      Mistake of fact: Nothing is an offence, which is done by a person who is bound by law to do that thing, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes that he is bound by law to do that thing.

It should includes reasonable believe which does not exist. Person not only be a honest but also due care and attention must be there and applied.

A lawful act done in pursuance of order of command is not offence. A policeman set fire on mob by order of his superior in accordance to law is not an offence.

An unlawful act in lawful manner in suspect is no offence. An officer of Court arrests B, considering A, by reason of a mistake of fact, in good faith, committed no offence.

In a case of State – v – Rose, a child killed his father believing his father is going to cut off throat of his mother. Held defence being mistake of fact.

Timmappa – v – State case says that accused and deceased went in jungle for hunting. They took positions. Deceased changed his position without brining into the knowledge of his companion. Accused shot dead him accidentally and mistakenly.

State – v – Le-Kandan: Accused gave grievous hurt to victim believing a ghost and proved fatal injury. Held no offence even ghosts are not recognized under any law in the world.

In Sukaroo – v – State case, an operation conducted without lawful authority and cut off the internal piles with ordinary knife. Man died. Held no reasonable care and attention applied so guilty of murder.

2.      S. 80 is related with accident, which is done by misfortune and without any criminal intention or knowledge in doing of lawful act, in lawful manner, by lawful means, and with proper care and attention.

During horse riding, horse became out of control and killed a man, held not liable. But shooting of a bird in home, causing injury or death to person is no defence. Where there is precautionary measures, negligence of victim is not defence.

If a stone is thrown on car, driver may lose its control over driving a car and consequently it may hit to passerby. It is complete defence.

Tunda’s case: Where there a lawful game is played with consents and consequently without any intention any accident causes injury or death, no offence commits. In this case two wrestlers were doing wrestling. Accused thrown the deceased and his head come in contact accidentally with the hard edge of the adjoining Chabutra, which results fracture and then death. Held implied consents of suffering, no fowl play, and criminal intention. It was pure accident.

Ramption’s case: If an act is done with reason to believe which is in normal circumstances is unlawful is not defence. A man found a pistol in street, and in his opinion it was unloaded. He showed it to his wife, she remained stand there. He pushed trigger and bullet passes her and caused death. Held manslaughter.

Jagosher’s case – v – State: In this case it was held that an unlawful act done negligently is not excuse. During the beating of a person, his wife carrying a baby came to interfere, gave two blows to baby. He died. Held, no defence because he did not do lawful act in lawful manner.

Timbu Kolian – v – State: Unlawful act in negligence is no defence. During house quarrel a man was exchanging verbally and went outside and sat down. His wife followed him outside and continues rebuke him. He picked up a light stick and without knowledge that she is also carrying a baby, thrown towards direction of voice. The blow struck baby and died. Held manslaughter because he done unlawful act negligently.

3.      Infancy: According to S. 82 of Pakistan Penal Code (PPC), nothing is offence which is done by child under seven years of age. S. 83 says, nothing is an offence which is done by a child above seven years of age and under twelve, who has to attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasions.

Child under seven years of age is doli incapax, incapable to commit an offence, since he cannot distinguish between right and wrong.

Children, who are of sharp mind, have sufficient maturity, intelligence, spoiled, can be convicted, if they are between seven to twelve years of age. If Court comes at the conclusion after cross-examination that child has attained sufficient maturity, then he can be convicted, otherwise they are not taken behind the bars.

In case of Ullah Mahapatra – v – State, accused was a child under twelve years of age but above seven years. He picked up a knife and advanced towards deceased with a threatening gesture, saying that he will cut him into pieces and actually he done offence. Held he was known the action and its consequences, so he is guilty of murder.

In a case of Aimona, who was accused and ten years of age slept with her mother-in-law, and her husband aged nineteen years slept with his brother in another hut. In early morning her mother-in-law told her to do household duties. She went in room of her husband and cut his throat, and run away and tried her to hide in fields and couldn’t be found till after noon. Held she was doli capax, say capable to commit an offence of murder.

4.      Intoxication is not defence in all over the world. In a case of Manzur Hussain Shah – v – State, a mendicant was the member of a group being tried to religious dance. One of them instigated to accuse to do dance after taking intoxication and he did so. Held he was aware and his consents were there. His drunkenness was voluntarily and he was not even so intoxicated as not to understand the nature of his act.

5.      Consents § 87 – 92: Some injuries are covered in consents. If someone injures anybody, then consent is not defence. To injure someone on other’s will is not defence. To injure himself is not defence but in case of suicide, if commission is completed, then he cannot be convicted, because he died and goes away within the reach of law and this matter goes towards Allah Almighty. If the act of suicide remains incomplete and just attempt is done then one-year imprisonment and also fine can be imposed. Consents become defence if injury inflicted is minor, otherwise it is not defence. U/s 90, free consents can be given only for benefit or for lesser evil. A person who gets serious injuries and he may be treated either by operation with injury, which is lesser evil or remains let die, he will be treated with operation which is lesser evil inflicted for his benefit.

Wrestling, boxing, hockey, football, volley ball are lawful games and can be played with consents and if minor injury occur then consent is defence provided there was not negligence. If a labour puts some bricks on his head and take away on the upper part of building, to receive money, gets injury, cannot claim damages because consents are there.

Consents are defence when they are given for the benefit of the society or individual. In emergency cases of hospital, consents are not taken. It is presumed that consents have been taken, called silent consents.

All the lawful games should be played lawfully and by lawful manners. Fencing is unlawful game. Consents in unlawful matter are not defence. Also mercy killing is not allowed in all over the world even with the consents of the deceased person. Only Allah can take the life and no one else or by law. Death is only in the hand of Allah. Defence cannot be put up where consents are given in prohibited matter. In case of Bradshaw – v – State, it was held that fighting with deadly weapons couldn’t be played thus cannot take the benefit of consent. Consents in lawful game became irrelevant when the unlawful manner is applied. If wrestler declares truce, and other continues fighting to cause injury, cannot get the benefit of consents.

In case of Sukaroo Kabiraj – v – State, accused was uneducated in the matter of surgery. He operated a patient with ordinary knife, which caused death. Held liable and consents are irrelevant.

6.      Necessity and compulsion: It is defence if it is done in good faith to avoid risk or harm and if it is done without intent to avoid harm to person or property then it is not offence. A captain of vessel without intention and negligence found in a position to run down a boat with twenty-five passengers on boat is not guilty of murder. To save own life, it is not allowed to kill other for feeding purpose. It was held in Dudley & Stephen case in 1950. Murder only can be committed where self-defence allows with certain limits. Two offences are exclusively prohibited under the situation of necessity and compulsion that are murder and treason or offence against state punishable with death. In case of murder or treason, no man has a right to take life of other to save himself. Martial law is claimed to enforce under necessity caused by law and order situation. If an act of other causes danger then necessity comes into action. If a house goes in fire and anybody goes in house to prevent the loss in good faith but loss occurs, it is defence. Operation of cancer patient in case of uncertainty can be done if chance of life is rare. Always lesser or mitigate evil is preferred. If operation is done and patient dies, it is defence. Act of child under seven years of age, person of unsound mind, involuntary intoxication, without intent and negligence, with consent, for the benefit of child or unsound person are not offence.

7.      Defence of person and property § 96 – 106: It is duty of state to protect life and property of every individual. But it is fact that state cannot provide such protection in way to provide guard to every one. In order to protect every individual and to achieve this object, law permits every one to protect his life when danger is or to be caused. Physical harm is immaterial. If just apprehension is there, reasonable force can be used for the preservation of life and it is right of everyone. This right is bestowed by Allah Almighty. Allah gives life and only He can take it back. No one is allowed to take life of other except provided in law. Everyone has right to enjoy his life and property. Everyone knows that right of human being should not be infringed. I have book and house. This is my property. No one can be allowed to snatch or occupy such things.

Purpose of protection is preservation of human life and property. It also mitigates the occurrence of the offences. It brings down the violation. Instincts of self-protection not only exist in human being but also in all creatures such as animals and birds and even in floras.

The right of self-defence has been recognized since time immemorial. Everyone wants to live and not to die. Prolong life is right of everyone. In earlier time this right was available to the extent of only blood relationship, e.g., father to son; mother to daughter; brother to sister or brother; grand relatives to grand relatives etc. Later it was extended to other like teacher to student and in law relatives. Now in modern time, particularly after 1945 – 50, this right has been extended to everyone. If a girl is being beaten without any reason, everyone can interfere to save her life. Strangers can be protected.

In the matter of self-defence, it should must be kept in mind that right of self-defence arises when unlawful use of force is applied. If there is no unlawful use of force, right of self-defence is not available. If the offender is caught then he cannot be killed, but if the danger is there, wait of police authority becomes immaterial.

There are some restrictions to the use of force while the danger of use of unlawful force.

i)        Attack should be unlawful: Right of self defence is available there, where unlawful force is used to takes others’ life or property. Future threat is insufficient cause to use force against the person. If someone goes to home to take weapon to kill other, other should run away to mitigate the danger. But if the danger is proximate then during the time, lawful authorities should be invited or weapons should be arranged to mitigate the threat of danger. Just killing of other person in defence is not a matter. If precautionary measures can be taken to avoid risk, it must be taken into consideration.

ii)      Apprehension of danger: You should not wait until a person attacks you and kill you. Danger can be apprehended or perceived from the act going to be done. If a person brings pistol or load it with pellets, wait to stretch/overestimate pistol becomes immaterial, attack over him can be done. The right of self-defence commences when danger to life commences, and it ends when life ends. Do not wait police and protect yourself. When running away is best solution to avoid the risk, it is best way and do not take law into your own hands. Law does suit in the hands of public authorities. You may stick if you are standing on your own land or home and fully allowed protecting your life and property, too. Try to occupy illegally, property of others, can be interfered with weapons without wait of police. The test is whether an ordinary man, placed in these circumstances, would have foreseen the coming danger.

iii)    Use of reasonable force: The threat or presence of danger does not permits to defender to use unlimited force against accused. It should must be commensurate whether the force used in self-defence was reasonable in relation to apprehension of danger is a question of fact.

Sardari case is an example of non-reasonable use of force. Killing without warning while entering in disputed land that was action beyond what the law permitted him to do so. He exceeded in self-defence. Held murder.

In case of Muhammad Yaqoob – v – State, accused inflicted 28 injure to deceased to save himself form sexual offence. Observed that after infliction of first injury to make him disable the right of self-defence comes end. It is a clear case of exceeding use of force in private defence.

But it is very difficult to apply exact amount of force required for the purpose. In the heat of passion or provocation, it is difficult for defender to measure force step by step. It cannot be weighted in golden scale. Force should be used in good faith.

Bashir – v – State case is the example of appropriate apprehension of danger to protect self without proving that injuries were actually caused to the danger. Immediate apprehension of danger is enough though no actual harm is caused.

Jamal Din – v – State case is an example of defence of other who was in danger. Accused apprehends immediate danger to his brother, who was surrounded by group of offenders and they were attacking. Accused fired and killed one person. Held self-defence.

If thief has given away your property, yours right to chase him ends. Attack on thief is not allowed until apprehension of danger is not happened. Thief only can be arrested. In case of robber, use of force is allowed when property is stolen, right to recover begins and when property is recovered, right to defend ends. Do not attack upon possession. If danger over property or self is over then right of defence is over. If thief refuses to dispossess stolen property then force may be used.

Rioting § 146 – 148: Whenever an unlawful assembly uses force or violence or by any member thereof in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

There are two things, which convert an unlawful assembly into a riot, that is:

a)      The use of force or violence by an unlawful assembly or any member thereof, and

b)      Such force or violence being used in prosecution of the common object of such assembly.

There are three ingredients of rioting:

(a)   An unlawful assembly,

(b)   Use of force or violence by such assembly or any member thereof,

(c)    Such force or violence should be used in prosecution of common object.

Peaceful part played by any member of the assembly is no more important, mere intention is sufficient. Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Use of deadly weapons is also a greater offence.

Affray S. 159: When two or more persons, by fighting in a public place, disturb the public peace they are said to “commit an affray”.

The ingredients of the offence are:

1.      Fight between two or more persons.

2.      Fight must be in public place.

3.      Disturbing the public peace.

Mere abusing or beating without retaliation is no offence of affray. It takes place where breach of peace or assault is committed.

Difference between riot and affray:

 

Riot

Affray

1.      Public peace is immaterial. It can be committed on private place.

1.      It is disturbance of public peace.

2.      Committed by five or more person.

2.      Two or more persons commit affray.

3.      Every member is punishable even not violation is committed.

3.      Only fighters are guilty of affray.

4.      Punishment is two years imprisonment, or fine, or both.

4.      Punishment is one-month imprisonment, or fine of Rs. 100/-, or both.

Abetment SS 107 – 117: It is a separate and distinct offence provided the thing abetted is an offence. Abetment itself is not a crime but it fixes responsibility in aiding to commit an offence. Abettor is equally responsible as the principal offender is.

There are three types of abetment, i.e., where offence is committed by instigation, engagement of two or more persons in any conspiracy, or intentionally aid a person in committing a offence.

1.      Abetment by instigation: Instigation may happen by any method, such as, conduct, advise, suggestion, threat, letter, telephone, through a third party, and permission. If the offence is not committed, it is just an attempt to abet. In a case of Tej Sing – v – State, widow of deceased person was leading a funeral procession. Accused encouraged widow to commit suicide by surrounding the police in order they may not interfere. The widow burnt herself. Held guilty of abetment of suicide by instigation.

2.      Abetment by conspiracy: It is a combination and agreement by person to do some illegal act or to do legal act by illegal means. Forge document for the purpose of false evidence is abetment by conspiracy. Obtaining LLB degree is legal object but its receipt without sitting in examination is illegal.

3.      Abetment by aid: Aid or help in commission of crime is abetment by aid. Mere presence and awareness at the time of commission of offence is not abetment unless influence is used or facility is provided to commit crime. Marriage registrar at the time of second marriage may be held guilty of abetment by aid but member of ceremony are not abettors mere on the ground of members of the celebration.

In old English law criminals were divided in three classes, i.e., principal offender, accessory before the fact, and accessory after the fact. In Pakistan law there are only two categories, i.e., the principal offender who practically commits an offence and abettor, who instigates or helps or conspires.

Formula for Abetment: I. E. I.:

1.      Instigation a person to commit an offence.

2.      Engages other persons in conspiracy to commit an offence.

3.      Intentional aiding a person in such a way that it may cause facilitation for commission an offence.

This may amount abetment.

Criminal conspiracy § 120-A – 120-B: It is an agreement of two or more persons to do or cause to be done an illegal act or act which is not illegal but committed by means of illegal, such a agreement is designated a criminal conspiracy. Mere understanding or agreement is enough to constitute the charge of criminal conspiracy. Needless to prove commission of practical offence. Just arrangement of weapons to facilitate the offender is sufficient.

If A gives a parcel to B to deliver it to the house of C which actually contains a bomb which A intends to cause criminal damage to C’s house. Both A & B are not guilty of criminal conspiracy unless B knows the actual intention of A that he wants to damage property of C. Overt act must be done to constitute criminal conspiracy.

Qatal or murder defined as causing death or killing a human being by human being. There are two broad categories of murder, i.e., lawful murder and unlawful murder.

Lawful murder is divided into three kinds as follows:

1.      Accidental: It is death where act to cause death is unintentional, unplanned, by mistake, in doing lawful act, by lawful manner, and by lawful means with due care and attention. For example, A has valid driving licence, driving a car on road with due care and attention at appropriate speed. Suddenly a passerby comes before him and died, is unintentional and accidental death.

2.      Justifiable: This sort of killing is provided in general exceptions of Pakistan Penal Code (PPC). It is a death, which is committed by mistake of fact or judicial decision. A judge may convict an offender after fair trials and convict is hanged is judicial death. Self-defence is also covered under exceptions.

3.      Excusable: It is a death, which is caused by involuntary intoxication or by person of unsound mind or minor.

There are four types of unlawful murders as defined in Qisas and Diyat Ordinance:

1.      Qatal-i-Amd or intentional murder S. 300: There are five essential ingrediants of Qatal-i-Amd, that are:

a)      Causing death of human being;

b)      Death should be caused by an act;

c)      There must be bodily injury with intention;

d)     The act in the ordinary course of nature is likely to cause death; and

e)      Knowledge of dangerous act and can cause death.

Further death should be direct result of the injury inflicted to deceased.

Punishment: There are five possible penalties:

a)      Death as Qisas;

b)      Death or life imprisonment as Taazir;

c)      Imprisonment for twenty-five years where Qisas is not applicable. It is inapplicable in the cases of minors, pregnant women, older people, person on bed of death etc.; or

d)     Imprisonment as under Ikrah-I-tam; or

e)      Ikrah-I-naqis shall be punished in one of the three ways mentioned above, whichever suits.

Qisas means to copy the other or to follow the path followed by other, or act like the act of another. It is infliction of similar injury to the convict.

Qisas is not applicable:

1.      Where offender dies before the enforcement of Qisas;

2.      Where right of Qisas is waived off by any Wali;

3.      Where the right of Qisas devolves on the offender; and

4.      Where the right of Qisas devolves on the person who has no right of Qisas against the offender.

Qisas is not levied on the following four persons:

1.      Where offender is minor;

2.      Where offender is insane;

3.      Where the victim is child of offender, or grandchild, or how-low-so-ever.

4.      Where any Wali of the victim is direct descendant how-low-so-ever.

Taazir means punishment prescribed and awarded by the Court other than Qisas, Diyat, Arsh, or Daman. It includes punishment of imprisonment, forfeiture of property, and fine. It is left at the discretion of Court according to facts and circumstances of the case. Compound-ability does not mean that as soon as Diyat is paid, compound-ability is granted, the convict is released or gone away from jail, but he is kept behind the bars and compound-ability is just conversion of death penalty by way of Qisas to imprisonment.

Diyat is a specific compensation payable to legal heirs of the victim and not victim or his heirs, by the offender. It means it is applicable in case of murder only. It is not paid in the cases of hurt or injuries. In default of payment of Diyat, convict is to be kept in jail to suffer from simple imprisonment until the Diyat is paid in full. If convict dies before payment of Diyat, it is recovered from his estate.

2.      Qatal Shibe-i-Amd S. 315: It is also called culpable homicide not amounting to murder. If act caused death is done with intention of causing death or bodily injury as is likely to cause death, the punishment will be greater.

If act caused death is done with knowledge that it is likely to cause death but without intention to cause death, the punishment will be lesser.

The essential ingredients are:

a)      Causing death of a human being;

b)      There was an intention to cause harm on body or mind;

c)      By means of weapon or an act; and

d)     Act is not likely in ordinary course to cause death.

Punishment of culpable homicide not amounting to murder is Diyat, or imprisonment upto 14 years, or both.

3.      Qatal-i-Khata S. 318: Ingredients of this offence are:

a)      Causing death of a human being;

b)      Causing death of a human being unintentionally;

c)      Death by mistake of fact; and

d)     Death by mistake of act.

Punishment of this murder is obligatory. Sentence of Diyat and imprisonment for five to ten years may be awarded if the act is rash and negligent.

4.      Qatal-i-Bis-Sabab S. 321: Ingredients are as follows:

a)      Causing death of a human being;

b)      Unintentionally;

c)      By an unlawful act; and

d)     Unlawful act causes death.

It is punishable with Diyat.

Offences of hurt: Hurt is harm caused to human body other than death. The ingredients of hurt are:

1.      Causing to any body;

2.      Pain, harm, disease, infirmity, or injury;

3.      Impairing, disabling, or dismembering any organ of the body; or

4.      Without causing death.

Formula for Simple Hurt: B. I. D.:

Bodily pain, Infirmity, and Disease

If touch causing pain, abnormality, in contrast of normal way, anything which causes or effect the normal functions of any organ of body. Any person’s act, which causes bodily pain, abnormality, and abnormal function of body organ, and inability to perform normal function of organs.

Formula for Grievous Hurt: Eid-e-Fitar:

1.      Eye’s privation permanently, especially the sight.

2.      Ear’s privation permanently, especially the hearing.

3.      Infirmity of any organ permanently.

4.      Disfigurement of any face or hand or feet.

5.      Emasculation.

6.      Fracture of any bone.

7.      Injury on account of which the effected person.

8.      Cannot peruse daily routine upto 20 days.

9.      Tooth or teeth dislocation/extraction.

10.  An injury on account of which any members joint is cut or dislocated.

11.  Reduction in power of any member or joint of the body.

Different kinds of hurt: There are five types of hurt provided in Ordinance.

1.      Itlaf-I-Udw S. 333: Itlaf means to destroy, to ruin, and decay. The word udw means limb or organ. It means dismember, amputation, or cut off any limb or organ of the body.

2.      Itlaf-I-Salahiyyat-I-Udw S. 335: It means destroy or permanently impairing the functioning power of capacity of any organ of the body of a person or causing permanent of some organ.

These offences are punishable with Qisas and where Qisas is not applicable there Arsh and imprisonment is awarded. Arsh is compensation payable in case of hurt in contrast of murder, to victim or his legal heirs. Its amount varies case to case.

3.      Shajjah S. 337: It means injuries on head or face. There are six kinds of Shajjah.

a)                  Shajjah-I-Khafifah: It means simple hurt by any weapon on head or face without exposing any bone of the victim.

b)                  Shajjah-I-Mudihah: It is simple hurt by any weapon, on head or face, where though bone is exposed but no fracture is caused.

c)                  Shajjah-I-Hashimah: It is grievous hurt by any weapon, on head or face, resulting in fracture of bone of victim without dislocating it.

d)                 Shajjah-I-Munaqillah: It is grievous hurt by any weapon, on head or face, resulting in fracture and dislocation of bone of victim.

e)                  Shajjah-I-Ammah: It is grievous hurt by any weapon, causing fracture of the skull of the victim, where the wound touches the member of the brain.

f)                   Shajjah-I-Damighah: This is also grievous hurt by any weapon, causing fracture of the skull of the victim, so that the wound ruptures the membrane of the brain.

4.      Jurh S. 337 – B: Jurh is derived from the word “Jarooh” which means injury. The word jurh is used for injuries on human body other than injuries on head or face. These injuries on human body can be divided into two kinds:

a)      Jaifah means injury, which extends to the body cavity of the trunk.

b)      Ghayr Jaifah S. 337 – E: It means injury, which does not amount to jaifah. Ghayr Jaifah Jurh may further be divided into six kinds:

i)        Damiyah: Damiyah ghayr jaifah jurh means injury with any weapon, in any part of body except head or face in which skin is reptured and bleeding occurs.

ii)      Badiah: It means injury with any weapon, on any part of body, except head or face, by cutting on incising the flesh without exposing the bone.

iii)    Mutalahimah: It means injury with any weapon, on any part of the body except head or face, by lacerating the flesh.

iv)    Mudihah: This type of jurh means injury with any weapon, on any part of the body, except head or face, in which bone is exposed.

v)      Hashimah: It means injury with any weapon, on any part of the body, except head or face resulting in fracture of a bone without dislocating it.

vi)    Munaqqilah: This jurh means injury with an weapon, on any part of body, except head or face, resulting in fracture and dislocation of bone.

Punishment is Arsh and offender may also be awarded imprisonment as Taazir.

5.      Other kinds of offences including hurt:

a)      Hurt because of rash and negligent driving.

b)      Hurt because of rash and negligent act other than driving.

c)      Hurt caused by mistake.

d)     Hurt by mean of poison.

e)      Any other kind of hurt which endangers life or which causes the sufferer to remain in sever bodily pain for 20 days or more or render him unable to follow his ordinary pursuit for that much time.

Drinking: Whoever, intentionally and without ikrah or iztirar, takes an intoxicant by any means whatsoever, whether such taking causes intoxication or not, shall be guilty of drinking.

Quran says, “They ask thee, concerning wine and gambling, say, “In Them is great sin, And some profit, for men, But the sin is greater, Than the profit”, They ask thee how much, They are to spend, Say, “What is beyond your needs.” Thus doth Allah, Make clear to you, His Signs, in order that, Ye may consider.

Wine or khumar is literally understood to mean fermented juice of grape; applied by analogy to all fermented liquor, and by further analogy to an intoxicating liquor or drug. There may possibly be some benefit in it, but the harm is greater than the benefit, especially if we look at it from a social as well as an individual point of view.

Kinds of drinking: Drinking may be either drinking liable to hadd or drinking liable to taazir.

Drinking liable to hadd: Whoever being an adult Muslim takes intoxicating liquor by mouth is guilty of drinking liable to hadd and shall be punished with whipping numbering eighty stripes.

Punishment cannot be executed until or unless it is confirmed by the Court of law.

Proof of drinking liable to hadd: The proof of drinking liable to hadd shall be in one of the following:

1.      The accused makes before a Court of competent jurisdiction a confession of commission of drinking liable to Hadd; and

2.      At least two Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirement of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (Kabir), give evidence of the accused having committed the offence of drinking liable to Hadd.

Tazkiyah al-shuhood means the mode of enquiry adopted by a Court to satisfy itself as to the credibility of a witness.

Hadd is not enforced in the following cases:

1.      When drinking is proved only by the confession of the convict but he retracts his confession before the execution of hadd, and

2.      When drinking is proved by testimony, but before the execution of hadd, any witness retracts from his testimony so as to reduce the number of witnesses to less than two.

3.      Drinking liable to Taazir.

Drinking liable to Taazir:

1.      Being a Muslim, is guilty of drinking which is not liable to hadd under Article 8 or for which proof in either of the forms mentioned in Article 9 is not available and the Court is satisfied that the offence stands proved by the evidence on the record.

2.      Being a non-Muslim citizen of Pakistan, is guilty of drinking, except as a part of ceremony prescribed by his religion, or

3.      Being a non-Muslim who is not a citizen of Pakistan, is guilty of drinking at a public place.

Drinking liable to taazir shall be punished with imprisonment for a term which may extend to three years or with whipping not exceeding thirty stripes, or with both.

Qazf: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or any person in tending to harm, or knowing or having reason to believe that such imputation will harm, the reputation, or hurt the feelings, of such person, is said, except in the cases hereinafter excepted, to commit Qazf.

Kinds of Qazf: Qazf may either be qazf liable to hadd or qazf liable to taazir.

Qazf liable to hadd: Whoever, being an adult, intentionally and without ambiguity commits qazf of zina liable to hadd against a particular person who is a muhsin and capable of performing sexual intercourse is, subject to the provisions of this Ordinance, said to commit qazf liable to hadd.

Muhsin means a sane and adult Muslim who either has had no sexual intercourse or has had such intercourse only with his or her lawful wedding spouse.

Proof of qazf liable to hadd: Proof of qazf liable to hadd shall be one of the following forms namely:

1.      The accused makes before the Court of competent jurisdiction a confession of the commission of the offence.

2.      The accused commits qazf in the presence of Court, and

3.      At least two Muslim adult male witnesses, other than the victim of the qazf, about whom the Court is satisfied, having regard to the requirement of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (Kabir), give direct evidence of the commission of qazf.

Punishment of qazf liable to hadd:

1.      Whoever commits qazf liable to hadd shall be punished with whipping numbering eighty strips.

2.      After a person has been convicted for the offence of qazf liable to hadd, his evidence shall not be admissible in any Court.

3.      Punishment shall be executed upon the confirmation of the Court.

Qazf liable to taazir: Whoever commits qazf which is not liable to hadd, or for which proof in any of the forms mentioned in S. 6 is not available or for which hadd may not be imposed or enforced u/s 9 is said to commit qazf liable to taazir.

Punishment for qazf liable to taazir: Whoever commits qazf liable to taazir, shall be punished with imprisonment of either description for a term which may extend to two years and with whipping not exceeding forty strips and shall also be liable to fine.

Suicide S. 325: Whoever attempts to commit suicide, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. In Islam it is also forbidden. Quran says, “Do not destroy your life.” Abetment in suicide is also an offence. Genuine suicide is an offence in which a wrongdoer commits offence himself while in non-genuine suicide is an offence committed with abetment or conspiracy.

Wrongful restraint S. 339: It is a obstruction causing to person to reach at place where he wants to go, and law permits him. It is keeping a man to out of place he wishes to be and has a right to be.

Formula for Wrongful Confinement: OVER:

1.      Obstruction completely on a person to move to a direction.

2.      Voluntarily confining a person by wrongful restraint.

3.      Each direction is included if a person is obstructed from movement.

4.      Right of movement is available to a person who is wrongfully confined in such a way that he was entitled to move but the all of other person have violated this right.

Formula for Abduction: TOHFA:

1.      Taking a person is necessary.

2.      Object of such taking is no more necessary.

3.      His or her consents may or may no be there.

4.      Force or compulsion by deceitful means or adopted by taking the person.

5.      Age is not considered.

Theft § 378 – 382: Whoever, intending to take dishonestly any moveable property out of possession of any person without that person’s consents moves the property in order to such taking is said to commit theft.

Formula for Theft: WORD:

1.      Without consent of the owner either expressive or implied.

2.      Out of possession (there is no question of ownership). It is sufficient that property which was taken out of possession of the possessor.

3.      Removal of property is must.

4.      Dishonest intention – wrongful gain or wrongful loss.

Intention is the sum up of the offence. If there is no dishonesty intention, offence is not committed. Dishonestly includes anything with the intention of causing wrongful gain to one person or wrongful loss to another person is dishonestly. Wrongful gain means gain with unlawful means and wrongful loss means loss by unlawful means.

There are five ingredients that constitute theft within the meaning of S. 378.

1.      Dishonesty to take property.

2.      Such property should be moveable.

3.      Actual removal of the property.

4.      Removal of property from possessor.

5.      Dispossession without consents.

Distinction of theft under Pakistan Penal Code (PPC) and Hudood Ordinance.

1.      Age: Under Pakistan Penal Code (PPC) anybody who commits theft over seven years is liable to punishment while in Hudood only adult is liable to Hadd.

2.      Value of property: Under Pakistan Penal Code (PPC) any value of property is subject of theft while under Hudood stolen value of 4.457 grams gold is liable to Hadd.

3.      Dishonestly: Dishonestly is the integral part of theft under Pakistan Penal Code (PPC) and under Hudood it is no more important.

4.      Hirz and possession: Hirz is used in Hudood and possession is used in Pakistan Penal Code (PPC). Hirz is wider than of possession. It is arrangement made for the custody of property.

5.      Nature of property: Stolen property under Ordinance has been reduced excluding the criminal misappropriated property and the effect of criminal breach of trust from its orbit.

6.      Nature of proof: A very tough mode of proof is provided in Hudood while in Pakistan Penal Code (PPC) direct evident of anybody is admissible.

7.      Necessity: Necessity to commit theft is recognized under Ordinance while in Pakistan Penal Code (PPC) it is mitigating factor in punishment.

8.      Gravity of punishment: Under Pakistan Penal Code (PPC) three years imprisonment with or without fine is imposed. Under Ordinance punishment from amputation of hand to life imprisonment can be imposed.

Sarka (theft) liable to Hadd: It means secretly taking away of another’s property. Property must be in custody and value of stolen property must be upto or more than the value of ‘nisab’. Following are the pre-requisites of Sarka.

1.      Accused must be adult.

2.      It should be committed secretly.

3.      Stolen property should not be stolen earlier and value should be of ‘nisab’ or more.

4.      Property is taken away from ‘hirz’, i.e., arrangement made for the custody of property.

5.      Thief as touch to ‘nisab’ knows value of stolen property.

6.      Victim should unaware of theft at the time of commission.

7.      Victim should be there to hold accused.

Dacoity S. 391: It is like robbery with a difference of members. Dacoity should contain five or more accused. Just a single person can commit robbery. Gang of robbers commits dacoity and they must be five or more.

Haraabah S. 15: Hudood Ordinance says, “when any one or more persons, whether equipped or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt, such person or persons are said to commit haraabah.”

Essential ingredients of haraabah are as follows:

1.      Show of force for the purpose of taking away property.

2.      Attack or cause to wrongful restraint.

3.      Putting in the fear of death or hurt.

Criminal Misappropriation of Property S. 403: Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation of property within the meaning of this section.

If A, takes property belonging to Z out of Z’s possession in good faith believing at the time when he takes it, that the property belonging to him self. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, A is guilty of an offence under this section.

A, finds a rupee on the high road, not knowing to whom the rupee belong. A picks up it. A has not committed the offence. However, he has committed misappropriation.

A, sees Z drop his purse with money in it. A, picks up purse with the intention of restoring it to Z, but afterwards appropriates it to his own use. A is guilty u/s 403.

Dishonestly receiving stolen property S. 411: Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property is guilty u/s. 411.

Essential ingredients of dishonestly receiving stolen property:

1.      Dishonest receipt.

2.      Dishonest retention.

3.      Stolen property.

4.      Act knowingly.

5.      Having reason to believe it to be stolen.

In Kamal – v – State case, state recovered the property after passing six months of theft. Since it was not recent possession, therefore accused was acquitted being not guilty.

S. 411 becomes inactive if receiving of stolen property is kept concealed upto two years. It was held in case of Mukhtar Ali – v – State.

House trespass S. 442: Whoever commits criminal trespass by entering into or remaining in any building, tent, or vessel used as a human dwelling or any building used as a place for worship or as a place for custody of property, is said to commit “house trespass”.

If a stranger enters into joint family dwelling house with the permission of a member of the joint family does not amount to house trespass.

It is not necessary that the full body must enter before the offence is completed. Penetrating a hand or putting leg will be sufficient to constitute house trespass.

House breaking S. 445: A person is said to commit “house breaking” who commits house trespass if he effects his entrance into the house or any part of it any of the six ways herein after described with the intention of committing the offence, that is to say:

1.      First: If he enters and quits through a passage made by himself or by any abettor of the house trespass in order to the committing of the house trespass.

2.      Secondly: If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance or through any passage to which he has obtained access by sealing or climbing over any wall or building.

3.      Thirdly: If he enters or quits through any passage which he or any abettor of the house trespass has opened, in order to the committing of the house trespass by any means by which that passage was not intended by the occupier of the house to be opened.

4.      Fourthly: If he enters or quits by opening any lock in order to the committing of the house trespass, or in order to quitting of the house after a house trespass.

5.      Fifthly: If he effects his entrance or departure by using criminal force or committing an assault, or by threatening any person with assault.

6.      Sixthly: If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by any abettor of the house trespass.

Following are the illustrations of house breaking:

1.      A, commits house trespass by making a hole through the wall of Z’s house, and putting his hand through the aperture. This is house breaking.

2.      A, commits house trespassing by creeping into a ship at a porthole between decks. This is house breaking.

3.      A, commits house trespass by entering Z’s house through a window. This is house breaking.

4.      A, commits house trespass by entering Z’s house through the door, having opened a door which was fastened. This is house breaking.

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