<![CDATA[VU Help

<![CDATA[VU Help - PPC]]> https://vuhelp.net/ Wed, 28 Oct 2026 23:41:38 +0000 MyBB <![CDATA[qatl-e-amd]]> https://vuhelp.net/Thread-qatl-e-amd Sun, 16 Feb 2014 11:49:16 -0500 zohaibaslam]]> https://vuhelp.net/Thread-qatl-e-amd PLD 2007 PESH. 31
Provisions of Ss.301 & 302, P.P.C. were to be interpreted, in view of provisions of S.338-
F, P.P.C. in the light of Injunctions of Islam as laid down in Holy Qur'an and Sunna of
Holy Prophet (PBUH) and as interpreted by Muslim Jurists.
2- RELEVANT PROVISIONS OF LAW
 Qatl-e-amd Sec.300 to 314 and 324
3- CROSS REFERNCES
 Surah Baqra , Ayat 178
 Article 9 of Constitution of Pakistan
4- DEFINITION OF QATL U/S 299 (j)
1. Causing death
2. Of person
3. By another person
5- INGREDIENTS TO CONSTITUTE OFFENCE OF QATL-E-AMD U/S 300
1: An act
2: With intention
A) Of causing death, or
B) Injury
Which is likely to cause death
3: or, with knowledge that act will cause death10- WHEN QATL IS LIABLE TO QISAS?
 GENERAL RULE
QATL E AMD is always liable to qisas.
 EXCEPTIONS
Circumstances u/s 3061. Offender is minor
2. Offender is insane
3. Offender is ascendant of victim
4. Wali of victim is direct descendant of offender
Circumstances u/s 307 ©
1. Right of Qisas devolves on offender due to death of Wali, or
2. On a person who has no right of qisas against the offender
11- IKRAH-E-TAM & IKRAH-E-NAQIS
A. Qatl –e-Amd under Ikrah-e-Tam
 Ikrah-e-Tam-defined u/s 299 (g)
Putting any
1. Person,
2. His spouse, or
3. Blood relation (within the prohibited degree of marriage)
In fear of
1. Instant death, or
2. Instant permanent impairing of any organ of the body, or3. Fear of sodomy, or
4. Zina Bil Jabr
 Punishment u/s 303
o For person causing Ikrah-e-Tam
He shall be punished as he committed Qatl by himself
o For person on whom Ikrah was made
Imprisonment upto 25 years and not less than 10 years
B. Qatl –e-Amd under Ikrah-e-Naqis
 What is Ikrah-e-Naqis u/s 299(h)
Any kind of duress which does not amount to Ikrah-e-Tam is Ikrah –e-Naqis
 Punishment
◦ For person causing Ikrah-e-Naqis
Imprisonment upto 10 year
◦ For person on whom Ikrah was made
Shall be punished for type of Qatl he committed
12- WAIVER AND COMPOUNDING U/S 309 & 310
 ESSENTIALS1. Wali
2. Sane
3. Adult
4. At any time
5. Without compensation
 WHEN CAN’T BE MADE
1. If Government is wali
2. If wali is minor
3. If wali is insane Badl sulh Can’t be
1. A female
If a female is given in badl-e-sulh punishment is upto 10 years imprisonment
and not less than 3 years imprisonment u/s 310-A
2. Less than Diyat
 Other principles relating to Sulh
3. Government may compound
4. Payment of Badl-e-Sulh may be prompt or differed
5. If Wali is minor or insane, his wali may compound on his behalf.
13- CONCLUSION]]> PLD 2007 PESH. 31
Provisions of Ss.301 & 302, P.P.C. were to be interpreted, in view of provisions of S.338-
F, P.P.C. in the light of Injunctions of Islam as laid down in Holy Qur'an and Sunna of
Holy Prophet (PBUH) and as interpreted by Muslim Jurists.
2- RELEVANT PROVISIONS OF LAW
 Qatl-e-amd Sec.300 to 314 and 324
3- CROSS REFERNCES
 Surah Baqra , Ayat 178
 Article 9 of Constitution of Pakistan
4- DEFINITION OF QATL U/S 299 (j)
1. Causing death
2. Of person
3. By another person
5- INGREDIENTS TO CONSTITUTE OFFENCE OF QATL-E-AMD U/S 300
1: An act
2: With intention
A) Of causing death, or
B) Injury
Which is likely to cause death
3: or, with knowledge that act will cause death10- WHEN QATL IS LIABLE TO QISAS?
 GENERAL RULE
QATL E AMD is always liable to qisas.
 EXCEPTIONS
Circumstances u/s 3061. Offender is minor
2. Offender is insane
3. Offender is ascendant of victim
4. Wali of victim is direct descendant of offender
Circumstances u/s 307 ©
1. Right of Qisas devolves on offender due to death of Wali, or
2. On a person who has no right of qisas against the offender
11- IKRAH-E-TAM & IKRAH-E-NAQIS
A. Qatl –e-Amd under Ikrah-e-Tam
 Ikrah-e-Tam-defined u/s 299 (g)
Putting any
1. Person,
2. His spouse, or
3. Blood relation (within the prohibited degree of marriage)
In fear of
1. Instant death, or
2. Instant permanent impairing of any organ of the body, or3. Fear of sodomy, or
4. Zina Bil Jabr
 Punishment u/s 303
o For person causing Ikrah-e-Tam
He shall be punished as he committed Qatl by himself
o For person on whom Ikrah was made
Imprisonment upto 25 years and not less than 10 years
B. Qatl –e-Amd under Ikrah-e-Naqis
 What is Ikrah-e-Naqis u/s 299(h)
Any kind of duress which does not amount to Ikrah-e-Tam is Ikrah –e-Naqis
 Punishment
◦ For person causing Ikrah-e-Naqis
Imprisonment upto 10 year
◦ For person on whom Ikrah was made
Shall be punished for type of Qatl he committed
12- WAIVER AND COMPOUNDING U/S 309 & 310
 ESSENTIALS1. Wali
2. Sane
3. Adult
4. At any time
5. Without compensation
 WHEN CAN’T BE MADE
1. If Government is wali
2. If wali is minor
3. If wali is insane Badl sulh Can’t be
1. A female
If a female is given in badl-e-sulh punishment is upto 10 years imprisonment
and not less than 3 years imprisonment u/s 310-A
2. Less than Diyat
 Other principles relating to Sulh
3. Government may compound
4. Payment of Badl-e-Sulh may be prompt or differed
5. If Wali is minor or insane, his wali may compound on his behalf.
13- CONCLUSION]]> <![CDATA[Downloadin problem]]> https://vuhelp.net/Thread-Downloadin-problem Sun, 08 Apr 2012 04:02:31 -0400 Aamir khan1]]> https://vuhelp.net/Thread-Downloadin-problem <![CDATA[Define and explain common intention and common object. Is there any difference betwe]]> https://vuhelp.net/Thread-Define-and-explain-common-intention-and-common-object-Is-there-any-difference-betwe Sun, 10 Jul 2011 13:41:27 -0400 Xpert]]> https://vuhelp.net/Thread-Define-and-explain-common-intention-and-common-object-Is-there-any-difference-betwe Common Intention And Common Object
Q. Define and explain common intention and common object. Is there any difference between the two. If so, explain. (1999) (2000) (2001) (2003) (2004/A) (2005/A) (2006/A)
1. Introduction:
Section 34 and section 149 0f P.P.C embodies the rule of constructive liability which means that a person is liable for the consequences of an act of another person. But sec. 34 and sec. 149 should not be mixed up together. The rule of common intention in sec. 34 and common object in sec. 149 are not synonymous in any way and they have got their distinguishable features.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 34 for common intention
Section 149 for common object.
3. Common Intention:
(i) Meaning:
“ common intention within the meaning of section 34 implies a pre-arranged plan. (NLR 1980 criminal 517)”
(ii) Common Intention U/ SEC 34:
When a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.

Ingredients Of SEC. 34:

Following are the ingredients of sec. 34.
(i) Criminal Act:
There must be some criminal act to invoke sec. 34 criminal act is one which is prohibited by law and is carried out in violation of the limits prescribed by law. The act contemplated by sec. 34 is some physical act and merely a mental act.
(ii) By Several Persons:
The criminal act must be done by several persons. It means that sec. 34 will apply only is cases where the accused is more than one.
(iii) In Furtherance Of Common Intention:
It is necessary that the act done by several persons should be in furtherance of common intention of all the persons involved. It may be develop even at the spur of the moment or during the commission of an offence. If it is prove that what the several accused did are clearly individual acts done of their own accord rather than acts done in furtherance of a prearranged plan or arrangement, the liability of each and not under section 34 P.P.C.
(IV) Scope Of Sec.34:
Section 34 of the P.P.C is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all. It dose not create a distinct offence but merely enunciates a principal of joint liability for act dene in furtherance of common intention of the offenders.(PLD 1983S. C35)
(V) Proof Of Common Intention:
Strict proof of common intention of concerned persons is normally not possible but the same can be conveniently gathered from set of circumstances brought forth in every case(1998SCMR2146)
4. Common Object U/Sec 149:
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence is a member of the same assembly is guilty of that offence.

Ingredients Of Sec149:

Ingredients Of SEC. 34:

Ingredients Of Sec149:

(i) Offence is committed:
“The word offence is defined in sect 40 of P.P.C as a thing made punishable by P.P.C.” To invoke Sec 149, an offence has to be committed.
(ii) Unlawful Assembly:
According to section 141 P.P.C an assembly of five or more persons is designated an unlawful assembly, if the common object of the persons composing that assembly is unlawful.
(iii) Membership of Unlawful Assembly:
To invoke the provision of sec. 149 membership of unlawful assembly is necessary. Proof of specifics overt act on the part of every member is not necessary. It is sufficient to prove that the accused persons shared the common object of the unlawful assembly.
(iv) In Prosecution Of Common Object:
Some offence must be Committed by any member of unlawful assembly in prosecution of common object of that assembly. The common objects of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of injuries as well as other surrounding circumstances.
(v) Knowledge of likelihood of offence being committed:
The member of unlawful assembly are also liable where the offence was such as the members of the assembly knew to be likely to be committed in prosecution of that object.
(II) Scope Of Section 149:
Section 149 P.P.C deals with the constructive liability of members of an unlawful assembly for the offence have been committed by one of the members of the assembly. Sec. 149 is merely an enabling provision and not provide a substantive offence.
(III) Proof of Section 149:
Prosecution must prove presence and participation of each of the accused in unlawful assembly for conviction u/sec 149 P.P.C (1994 SCMR 588)
5. Distinction Between Common Intention And Common Object:
Following are the differences between section 34 and sec. 149.
(I) Number Of Persons:
Sec.34 may apply to a case where the culprits are more than one.
Sec.149 can apply only to cases in which culprits are five or more.
(II) Meeting Of Mind:
Sec. 34 requires a pre-concert or meeting of mind.
Sec.149 will apply even if there was no prior meeting of mind.
(III) Participation:
Element of participation in action in necessary to constitute common intention.
In Sec. 149 only membership of unlawful assembly at the time of occurrence of offence is sufficient.
(Iv) As To Offence:
Section 34 expounds a doctrine of criminal liability and every criminal act in furtherance of common intention is made liable.
Section 149 applies to an offence committed by any member of an unlawful assembly whose common object is one mentioned in Sec 141, P.P.C.

(vi) Presence Of Accused:
In Sec 34, all the accused must be present on the spot. In sec 149, it is not necessary that all the accused must be present at the time of the commission of the offence.
(VI) Development:
Common intention can be developed even at the spur of the moment. common object cannot develop at the spur of the moment.
(VII) As To Act Done:
Sec. 34 will apply where the common intention is to do an act which was done.
Sec. 149 will apply even if there was no common intention to do the act but it was done in furtherance of the common object of the unlawful assembly.
6. Conclusion:
To conclude, I can say that both section 34 and 149 P.P.C . making a person vicariously liable for the acts of his companions. Both section 34 and 149 cannot always be proved by direct evidence facts and circumstances of the case.]]> <![CDATA[Define criminal conspiracy discuss its kinds and distinguish it from abetment]]> https://vuhelp.net/Thread-Define-criminal-conspiracy-discuss-its-kinds-and-distinguish-it-from-abetment Sun, 10 Jul 2011 13:30:41 -0400 Xpert]]> https://vuhelp.net/Thread-Define-criminal-conspiracy-discuss-its-kinds-and-distinguish-it-from-abetment Criminal Conspiracy
Q. Define criminal conspiracy discuss its kinds and distinguish it from abetment.
(2003)(2002)(2002/Annual)(2001)(199)
Q. Define criminal conspiracy what are its different kinds discuss fully.
(2004/S)(2005/A)(2005/S)
1. Introduction:
Conspiracy is one of the forms of abetment and it differs from other offences in this respect that unlike other offences, the intention to do a criminal act is itself sufficient no matter whether it is done or not section 120-A and 120-B of P.P.C have brought the law of conspiracy in the country in line with the English law by making the overt act unessential when the conspiracy is to commit any offence.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 120-A, 120-B, P.P.C
Section 121-A P.P.C
(I) Definition U/Sec 120-A:
“When two or more, persons agree to do or cause to 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.”
(II)Ingredients:
Following are the essential ingredients of offence of criminal conspiracy.
(i) Two or More Persons:
According to sec.120-A, at least two persons are required to constitute the conspiracy. One person cannot be held guilty of conspiracy as he cannot conspire with himself.
Criminal conspiracy as envisaged in section 120-A, P.P.C. must be product of two consenting minds uninfluenced by any consideration of threat, intimidation, coercion or undue influence.
(PLD 1979S.C53)
(ii) Agreement Between Such Persons:
Agreement is not mere intention, but announcement and acceptance of intentions. To constitute a 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.
Case Law
1998 PSC 533
It was held that the most important ingredient of the offence is the agreement between two or more persons to do an illegal act
(a) Mode Of Agreement:
Agreement may be express or implied or parity expressed and partly implied.
(iii)To do Illegal Act:
The word illegal is defined u/sec 43 P.P.C as
“everything which is an offence or which is prohibited by law or which furnishes ground for a civil action.”
Offence of conspiracy completed as soon as agreement to do an illegal act is the ultimate object of such agreement or is merely incidental to the object.
Illustration:
‘A’ and ‘B’ agrees to murder ‘C. This is an offence and they are guilty u/sec 120-A.
(iv)Legal Act by Illegal Means:
When two or more persons agree to do an act, which is not illegal itself, may be guilty of criminal conspiracy u/sec 120-A when they agree to do or cause to be done that act by illegal means.
Illustration:
‘A’, ‘B’ and ‘C’ agree to sell clothes without paying custom duty on it. They are guilty u/sec 120-A.

Agreement To Commit An Offence And Agreement Which Is Illegal But Not Constitute An Offence:
The proviso to section 120-A draws a distinction between an agreement to commit an offence and an agreement of which either the object or the methods employed are illegal but do not constitute an offence. In the case of former, the criminal conspiracy is completed by the act of agreement; in the case of the latter, there must be some act done by one or more of the parties to the agreement to effect thereof i.e. There must be an overt act.
(IV)Proof Of Criminal Conspiracy:
Conspiracy may be established by direct or indirect evidence such as circumstantial evidence. Evidence need to be considered together and its cumulative effect to be weighed and given effect. According to article 23 of Q.S.O, 1984, The act done by one is admissible against the co-conspirators.
3. Punishment U/Sec 120-B:
(i) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for a term of two years or upwards, shall where no express provision is made in the code for the punishment of such conspiracy, be punished in the same manner as if he had abetted offence.
(ii) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid, shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both.
4. Conspiracy To Commit Offences Punishable By Section 121-A:
Whoever within or without Pakistan conspires to:
(i) Commit any of the offence punishable by sec 121 i.e. Waging or attempting to wage war or abetting waging of war against Pakistan, or
(ii) Deprive Pakistan of the Sovereignty of her territories or any part thereof, or
(iii) Overawe (something more than mere apprehension. It is a situation where one feels to chose between yielding to force or exposing to serious danger) the federal Govt. or any Provincial Govt. by means of criminal force or show of it.
He shall be punished with Imprisonment for life or with imprisonment of either description which may extend to ten years and shall also be liable to fine.
5. Difference Between Criminal Conspiracy And Abetment:
Following are the difference between criminal conspiracy and abetment.
(I) Gist Of Offence:
The gist of the offence of criminal conspiracy is a bare agreement to commit an offence.
The offence of abetment requires that an act or illegal omission must take place in pursuance of the conspiracy.
(II) Form:
Abetment is a total complete offence.
Conspiracy is one of the forms of abetment.
(III) Punishment:
Section 109 P.P.C is concerned only with the punishment of abetments for which no express provision is made under the penal code. A charge u/sec 190, should therefore be along with some other substantive offence committed in consequence of abetment.
The offence of criminal conspiracy is an independent offence. It is made punishable u/sec 120-B.
(IV)Scope:
Abetment by conspiracy is narrow in scope.
Criminal conspiracy is wider in scope.
6.Conclusion:
To conclude, I can say that the offence of criminal conspiracy is a substantive offence and is punishable as such. It has nothing to do with abetment although it is one of the ways by which offence of abetment may be committed. It is wider in scope and covers acts which do not amount to abetment by conspiracy within the meaning of sec. 107.]]> Criminal Conspiracy
Q. Define criminal conspiracy discuss its kinds and distinguish it from abetment.
(2003)(2002)(2002/Annual)(2001)(199)
Q. Define criminal conspiracy what are its different kinds discuss fully.
(2004/S)(2005/A)(2005/S)
1. Introduction:
Conspiracy is one of the forms of abetment and it differs from other offences in this respect that unlike other offences, the intention to do a criminal act is itself sufficient no matter whether it is done or not section 120-A and 120-B of P.P.C have brought the law of conspiracy in the country in line with the English law by making the overt act unessential when the conspiracy is to commit any offence.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 120-A, 120-B, P.P.C
Section 121-A P.P.C
(I) Definition U/Sec 120-A:
“When two or more, persons agree to do or cause to 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.”
(II)Ingredients:
Following are the essential ingredients of offence of criminal conspiracy.
(i) Two or More Persons:
According to sec.120-A, at least two persons are required to constitute the conspiracy. One person cannot be held guilty of conspiracy as he cannot conspire with himself.
Criminal conspiracy as envisaged in section 120-A, P.P.C. must be product of two consenting minds uninfluenced by any consideration of threat, intimidation, coercion or undue influence.
(PLD 1979S.C53)
(ii) Agreement Between Such Persons:
Agreement is not mere intention, but announcement and acceptance of intentions. To constitute a 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.
Case Law
1998 PSC 533
It was held that the most important ingredient of the offence is the agreement between two or more persons to do an illegal act
(a) Mode Of Agreement:
Agreement may be express or implied or parity expressed and partly implied.
(iii)To do Illegal Act:
The word illegal is defined u/sec 43 P.P.C as
“everything which is an offence or which is prohibited by law or which furnishes ground for a civil action.”
Offence of conspiracy completed as soon as agreement to do an illegal act is the ultimate object of such agreement or is merely incidental to the object.
Illustration:
‘A’ and ‘B’ agrees to murder ‘C. This is an offence and they are guilty u/sec 120-A.
(iv)Legal Act by Illegal Means:
When two or more persons agree to do an act, which is not illegal itself, may be guilty of criminal conspiracy u/sec 120-A when they agree to do or cause to be done that act by illegal means.
Illustration:
‘A’, ‘B’ and ‘C’ agree to sell clothes without paying custom duty on it. They are guilty u/sec 120-A.

Agreement To Commit An Offence And Agreement Which Is Illegal But Not Constitute An Offence:
The proviso to section 120-A draws a distinction between an agreement to commit an offence and an agreement of which either the object or the methods employed are illegal but do not constitute an offence. In the case of former, the criminal conspiracy is completed by the act of agreement; in the case of the latter, there must be some act done by one or more of the parties to the agreement to effect thereof i.e. There must be an overt act.
(IV)Proof Of Criminal Conspiracy:
Conspiracy may be established by direct or indirect evidence such as circumstantial evidence. Evidence need to be considered together and its cumulative effect to be weighed and given effect. According to article 23 of Q.S.O, 1984, The act done by one is admissible against the co-conspirators.
3. Punishment U/Sec 120-B:
(i) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for a term of two years or upwards, shall where no express provision is made in the code for the punishment of such conspiracy, be punished in the same manner as if he had abetted offence.
(ii) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid, shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both.
4. Conspiracy To Commit Offences Punishable By Section 121-A:
Whoever within or without Pakistan conspires to:
(i) Commit any of the offence punishable by sec 121 i.e. Waging or attempting to wage war or abetting waging of war against Pakistan, or
(ii) Deprive Pakistan of the Sovereignty of her territories or any part thereof, or
(iii) Overawe (something more than mere apprehension. It is a situation where one feels to chose between yielding to force or exposing to serious danger) the federal Govt. or any Provincial Govt. by means of criminal force or show of it.
He shall be punished with Imprisonment for life or with imprisonment of either description which may extend to ten years and shall also be liable to fine.
5. Difference Between Criminal Conspiracy And Abetment:
Following are the difference between criminal conspiracy and abetment.
(I) Gist Of Offence:
The gist of the offence of criminal conspiracy is a bare agreement to commit an offence.
The offence of abetment requires that an act or illegal omission must take place in pursuance of the conspiracy.
(II) Form:
Abetment is a total complete offence.
Conspiracy is one of the forms of abetment.
(III) Punishment:
Section 109 P.P.C is concerned only with the punishment of abetments for which no express provision is made under the penal code. A charge u/sec 190, should therefore be along with some other substantive offence committed in consequence of abetment.
The offence of criminal conspiracy is an independent offence. It is made punishable u/sec 120-B.
(IV)Scope:
Abetment by conspiracy is narrow in scope.
Criminal conspiracy is wider in scope.
6.Conclusion:
To conclude, I can say that the offence of criminal conspiracy is a substantive offence and is punishable as such. It has nothing to do with abetment although it is one of the ways by which offence of abetment may be committed. It is wider in scope and covers acts which do not amount to abetment by conspiracy within the meaning of sec. 107.]]> <![CDATA[Define criminal justice? What are different theories of punishment]]> https://vuhelp.net/Thread-Define-criminal-justice-What-are-different-theories-of-punishment Sun, 10 Jul 2011 13:27:11 -0400 Xpert]]> https://vuhelp.net/Thread-Define-criminal-justice-What-are-different-theories-of-punishment Theories Of Punishment
Q. Define criminal justice? What are different theories of punishment?(2002)(2001)(2001/A)(2005/A)
Q. What are various theories of punishment? Discuss fully.(2004/S)(2006/A)(2007/A)
1. Introduction:
The most essential functions of a state are. Primarily two. War and administration of justice. Administration of justice is classified into parts, civil justice and criminal justice. The purpose of criminal justice is to punish the wrong doer who is punished by the state, on the question whether the purpose of punishment is the desire to make men better or to protect society, certain theories have been given by different jurists.
2.Meaning Of Punishment:
Punishment may be regarded as a method of protecting society by reducing the occurrence it as an end it self.
3.Meaning Of Criminal Justice:
Criminal justice is that which dealt within criminal proceeding the object of criminal justice is to punished the wrong doer.
(I)Purpose Of Criminal Justice:
The purpose of criminal justice is to punish the wrongdoer by the state. From very ancient times, a number of theories have been given concerning the purpose of punishment which may broadly be divided into classes.
(i) The view of first class is that, the end of criminal justice is to protect and add to the welfare of the state and society.
(ii) The view of other class in that, purpose of punishment is retribution.
4. Objectives Of Punishment:
Following are the objectives punishment
(i) Supremacy of law.
(ii) Maintenance of peace in society.
(iii) Punishment of offender.
(iv) Protection of public from crime.
(v) Protection of state.
(vi) Preservation of life.
(vii) Protection of individual property.
(viii) Upkeep morality and culture
(ix) Prevention of crime.
5.Theories Of Punishment:
There are certain theories behind the concept of punishment.
(I)Deterrent Theory:
According to this theory, the object of criminal justice in awarding punishment is to deter the people from committing crimes again.
According to Prof Salmond:
“Punishment is before all the deterrent and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.”
According to Locke:
“The commission of every offence should be made bargain for the offender:
(i)Aim of Punishment:
The aim of punishment is not revenge but terror. An exemplary punishment should be given to the criminals so that the others may learn a lesson from him.
Manu states:
“Penalty keeps the people under control.”
Criticism:
There is a lot of criticism of the deterrent theory of punishment in modern times.

Excessive hardness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishments.
Deterrent punishment is likely to harden the criminal instead of creating in him the fear of law.
Punishment loses its horror once the criminal is punished.

(II)Preventive Theory:
In preventive theory, the offender are disabled from repeating the offences by such punishment such as imprisonment, death, exile etc. This theory dose not act so much on the motive of the wrong-doer but disables his physical power to commit the offence.
Prof. paton states:
The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future.
Example:
An example of preventive punishment is the cancellation of the driving licenses of a person.
Criticism:
This theory has been criticized on following aspects.

It hardens the first offender by putting him in constant association with the habitual offenders.
When offender puts in jail, it breeds move crime.

(III)Reformative Theory:
According to this theory, the object of punishment should be the reform of the offender. Even in he commits a crime, he dose not cease to be a human being. He must be educated and taught some art of industry-during the period of his imprisonment so that he may be able to start his life again after his release from jail.
Prof. Jennings Stated:
“Punishment not the revenge but to reform the offender.”
Criticism:
The view of Salmond on the reformation theory that if criminals are to be sent to prison to be means formed into good citizens, prisoner must be turned into comfortable develling place. The theory of reformative punishment alone is not sufficient and there should be a compromise between the deterrent theory and the reformative theory and the deterrent theory must have the last word.
(IV)Retributive Theory:
In primitive times, punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrong-doer the principal of “an eye for an eye ”a” tooth for a tooth” was recognized and followed. The plato was a supporter of the retributive theory.
Prof. kant Stated:
“Judicial punishment can never serve merely as a means to further another good, whether for the offender himself or for society, but must always be inflicted on him for the sole reason that he has committed a crime.”
Criticism:
Critics points out to punishment in itself is not a remedy for the mischief committed by the offender. It merely aggragates the mischief. Punishment is itself is an evil and can be justified only on the ground that it is going to yield better results.
(V)Expiative Theory:
This theory is similar to the idea of retribution. Expiation means the suffering or punishment for an offence. To suffer punishment is to pay a debt due to the law that has been violated.
Lilly Stated:
“The wrong whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid, that the wrong be expiated.”
Criticism:
Justice Holmes writes “This passion of vengeance is not one which we encourage, either as private individuals or as law-makers”.
(VI)Compensatory Theory:
According to this theory, the object of punishment must be not merely to prevent further crimes but also to compensate the victim of the crime. The contention is that the mainspring of criminality is greed and if the offender is made to return the sill-gotten benefits of the crime, the spring of criminality would dry up.
Criticism:
This theory has been criticized on the following points:

It tends to over simply the motives of crime. The motives of crime is not always economic.
Even in cases of offences actuated by economic motives the economic position of the poor offender may be such that compensation may not be available.
If the offender is a rich person the payment of any amount may be no punishment for him.

Excessive hardness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishments.
Deterrent punishment is likely to harden the criminal instead of creating in him the fear of law.
Punishment loses its horror once the criminal is punished.

It hardens the first offender by putting him in constant association with the habitual offenders.
When offender puts in jail, it breeds move crime.

It tends to over simply the motives of crime. The motives of crime is not always economic.
Even in cases of offences actuated by economic motives the economic position of the poor offender may be such that compensation may not be available.
If the offender is a rich person the payment of any amount may be no punishment for him.

(VII)Denunciatory Theory:
This theory examines the crime from a moral point of view
View of Lord Dennings:
The punishment to criminal adequately reflect the revulsion, hatred and condensation must be felt by a majority of citizens.
(VIII)Ultilitarian Theory:
This theory does not highlight or support any particular theory, but is one of the biggest theories for basis of punitive measure. They believe that punishment is an instrument for reducing crimes to matter from what approach they are adopted. There is no restriction to which theory by applied, the purpose is to achieve good consequences.
6. Conclusion:
To conclude, I can say, that a perfect system of criminal justice cannot be based on any one theory of punishment. Every has its own merits and every effort must be made to take the good points of all. The deterrent aspect of punishment must not be ignored, likewise the reformative aspect must be given its due place.]]> <![CDATA[defince Zina-bil-jaber and state the punishment provided for it in the offence of Zin]]> https://vuhelp.net/Thread-defince-Zina-bil-jaber-and-state-the-punishment-provided-for-it-in-the-offence-of-Zin Sun, 10 Jul 2011 13:06:32 -0400 Xpert]]> https://vuhelp.net/Thread-defince-Zina-bil-jaber-and-state-the-punishment-provided-for-it-in-the-offence-of-Zin Zina And Zina-Bel-Jabrs
Q. defince Zina-bil-jaber and state the punishment provided for it in the offence of Zina ordinance what proof is needed to impose hadd in such case.(1998)(1996)(1993)
1. Introduction:
Zina means fornication or adultery. Sexual intercourse not permitted by Muhammadan Law is both word Zina as defined in the ordinces covers both void and irrelegular marriage. Void marriage can fall within definition of Zina liable to hadd and an irregular marriage can fall within definition of Zina liable to Tazir.
2. Relevant Provisions:
Following are the relevant provisions of the concerned topic.
Section 4 to 10 of the offence of Zina (Enforcement of Hudood) ordinance VII of 1979.
3. Offence Of Zina:
(I) General Meaning:
According to hanafis, Zina means intercourse without milk(ownership) or shubat milk.
(II)Meaning U/Sec 4:
A man and a woman are said to commit Zina, if they willfully have sexual intercourse without being validly married to each other.”
(III) Ingredients Of Offence Of Zina:
Following ingredients must be prove in order to secure the conviction of an accused person for the offence of Zina.
(i)Between Opposite Sexes:
There should be a man and a woman. This offence is not possible between human being belonging to the same sex or being sexless.
(ii) Not Validly Married:
There must not be a valid married between such man and a woman. The expression valid marriage will imply the requirements of such marriage as required under Muhammadan Law.
(iii)Sexual Intercourse:
A man and a woman should have committed sexual intercourse with each other. Zina is complete if there is sexual intercourse without valid marriage (1989 PCR L J878)
According to explanation of section 4 penetration is sufficient to constitute the sexual intercourse. Penetration means entering of the male organ into the vagina for the offence of Zina.(1985 PCRL J 110)
(iv)Willfully:
A man and a woman must commit sexual intercourse willfully. Willfully signify an act done by design with set purpose. (PLD 1985FSC 126)

(IV) Zina is liable to hadd, if it is committed by a man or a woman who is.
(i)An adult, and according to section 2(a) adult means a person who has attained.
a. If male, eighteen years of age.
b. If female, sixteen years of age or puberty.
(ii)Not Insane
(iii)With the woman or man as the case be, to whom he or she is not and dose not suspect to be married.
(V)Punishment Of Zina U/Sec 5(2):
Whoever is guilty of Zina liable to hadd shall be punished as under.
(i)If Musan:
If he or she is a Muhsan, be stonned to death at a public place.
(ii)If not Musan:
If he or she not a muhsan, be punished at a public place whit whipping numbering one hundred stripes.
Meaning of Muhsan:
According to section2(a), Muhsan means an adult Muslim man or woman who is not insane and has had sexual intercourse with a Muslim adult, who at the time he or she had sexual intercourse with her or him was married to him or her and was not insane. In other words Muhsan means a married men or woman.
Confirmation of Court of Appeal:
Punishment of hadd shall be executed only when it is confirm by the court of appeal.
4.Offence Of Zina-Bil-Jabr U/Sec 6:
A person is said commit Zina-bil-jabr if he or she has sexual intercourse with a woman or man, as the case may be to when he or she is not validly married, under any of the following circumstances.
i. Against the will of the victim
ii. Without the consent of the victim
iii. With the consent of the victim when the consent has been obtained by putting the victim in fear of death or hurt.
iv. With the consent of the victim, when the consent is given under mistake believing that the offender is another person to whom victim is validly married and the offender knows that he is not validly married to the victim.
(I) ZINA-Bil-Jabr Liable To Hadd U/Sec 6(2):
Zina-bil-jaber is liable to hadd if it is committed by a man or woman who is.
i. An adult
ii. Not insane
iii. With a woman or man, as the case may be, to whom he or she is not and dose not suspect to be married.
(II)Punishment Of Zina-Bil-Jabr U/sec 6(3):
Whoever is guilty of Zina-bil-jabr liable to hadd, shall be punished as under.
(i)If Muhsan:
If he or she is Mushan be stonned to death at a public place.
(ii)If Not Muhsan:
If he or she is not Muhsan, be punished with whipping numbering one hundred stripes at a public place and with such other punishment including the sentence of death as the court may deem fit having regard to the circumstances of the case.
Confirmation of Court Of Appeal:
Punishment of hadd shall be executed only when it is confirm by the court of appeal.
5. Punishment Of Zina Or Zina-Bil-Jsbr Where Convict Is Not Adult U/Sec 7:
Whoever, who is not an adult, is guilty of Zina or Zina-bil-jabr be punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be awarded the punishment of whipping not exceeding thirty stripes and in the case of Zina-bil-jabr, if the offender is not under the age of 15 years, the punishment of whipping must be awarded.
6. Proof Of Zina Or Zina-Bil-Jabr Liable To Hadd U/Sec 8:
Zina or Zina-bil-jabr liable to hadd shall be proved in any one of the following forms.
(I)confession:
The accused makes before a court of competent jurisdiction a confession of the commission of the offence.
(II)By Evidence Of Witnesses:
It may be proved by the evidence of at-least four witnesses, who give evidence as eye-witnesses of the act of penetration.
i. Requirements Regarding Witnesses:

Witnesses must be male
They must be adult
They must be Muslim but if accused is non-Muslim, the eye-witnesses may be non-Muslim.
The court must be satisfied about them having regard to the requirements of tazkiyah-al-shahood(mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness)that they are

Witnesses must be male
They must be adult
They must be Muslim but if accused is non-Muslim, the eye-witnesses may be non-Muslim.
The court must be satisfied about them having regard to the requirements of tazkiyah-al-shahood(mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness)that they are

Truthful
Abstain from major sins
7. Zina or Zina-Bil-Jabr Liable To Tazir U/Sec 10:
When Zina or Zina-bil-jabr
(i) is not liable to hadd or
(ii) not proved under section 8 or the punishment of Qazf liable to hadd is not awarded to the complainant, or
(iii) for which hadd may not be enforced under this ordinance. It is liable to tazir.
(I)Pusishment Of Zina Liable To Tazir:
Zina liable to tazir shall be punished with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and with whipping numbering thirty stripes and shall also be liable to fine.
(II)Punishment Of Zina-Bil-Jabr Liable To Tazir:
Whoever commits Zina-bil-jabr liable to tazir, shall punished with imprisonment for a term which shall not be less than fours years nor more than twenty five years and shall also be awarded the punishment of whipping numbering thirty stripes.
(i) When Committed by Two or More Person:
When Zna-bl-jabr to tazir is committed by two or more person in furtherance of common intention of all, each of such person shall be punished with death.
8. Conclusion:
To conclude, I can say, that when a man and a woman who are not validly married to each other willfully commit sexual intercourse, they shall be deemed to have committed the offence of Zina. It is a wider term and includes both fornication and adultery and when it is committed under the circumstances and when sec. 6, it becomes more serious offence.]]> <![CDATA[Define unlawful assembly. When it becomes riot]]> https://vuhelp.net/Thread-Define-unlawful-assembly-When-it-becomes-riot Sun, 10 Jul 2011 13:05:23 -0400 Xpert]]> https://vuhelp.net/Thread-Define-unlawful-assembly-When-it-becomes-riot Unlawful Assembly
Q. Define unlawful assembly. When it becomes riot? Explain fully. (2003) (200) (2001)
Q. What is unlawful assembly? Under what circumstances a member of a unlawful assembly commits an offence in prosecution of common object of the assembly. (2002) (1999) (1999 Annual) (1998) (1994)
Q. When member of unlawful assembly commits an offence in prosecution of common object of the assembly and how dose it effect other member of the Assembly. (2004/S) (2005/A)
1. Introduction:
Chapter VIII of P.P.C deals with the offences against public peace. If many persons assemble together to disturb peace and order, the trouble becomes magnified and deserves special treatment. Section 141 to 160 deals with these special offences, and provides punishments as such.
2. Relevant provisions:
Following are the relevant of P.P.C regarding the concerned topic.
Section 141 to 149 P.P.C.
3. unlawful ASSEMBLY u/SEC 141:
An assembly of five more person is designated an unlawful assembly, if the common object of the person composing that assembly is.
First To overawe by criminal force or show criminal force, the federal or any provincial Govt. or Legislature or any public servant in the exercise of the lawful power of such public servant, or
Second To resist the execution of any law, or of any legal process or
Third To commit any mischief or criminal trespass other offence, or
Fourth By means of criminal force or show of criminal force to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of right of way or the use of water or other incorporeal right of which he is in possession or, enjoyment or to enforce any right or supposed right. Or
Fifth By means of criminal force or show of criminal force to comply any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.
(I) Ingredients Of Sec 141:
Following are the ingredients of unlawful assembly.
(i) Assembly of five or More Persons:
To constitute unlawful assembly, it must consist of five or more persons. If the number of person is less than five, it would not constitute unlawful assembly even if the members have one of the five specified objects as their common object.
(ii)Common Object:
The essence f the offence is the common object of the persons forming the assembly. Whether the object is in their minds when they come together or whether it occurs to them afterwards in not material what in necessary is that they should all be aware of it and concur in it.
(iii)Object Must be Specified in Sec. 141:
The common object must be one of the five objects specified in section 141. A member of an unlawful assembly is guilty of an offence u/sec 141, when the common object of that assembly is of following types.
a. To Overawe Federal, ‘Provincial Govt. Legislature or public:
A person kept by superior influence is awe, so that he fears to do what the law empowers him to do is overawed. When the common object of an assembly is to overawe federal, provincial Govt. or Legislature or pubic servant in the exercise of the lawful power of such public servant, all person of the that assembly are guilt of an offence.
b. To Resist:
When the common object of an assembly is to resist the execution of any law or of any legal process e.g. warrant , attachment etc, the members of that assembly are regarded as member of unlawful assembly.
c. To commit Offences:
Although third clause specifies only two offences, viz mischief and criminal trespass but the words others offences seem to denote that all offences are included.
d. To Interfere Rights Attached With Property:
When the common object the assembly is to take-possession of any property or deprived any person of the enjoyment of a right way or use of water or other incorporeal right or to enforce any right, by the use of criminal force or by show of criminal force, that assembly will be designated as unlawful assembly and members will be punished as such.
e. Compulsion to Any person:
When the common object is to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do e.g. to restrict police officer to arrest.
(II) Turning Of Lawful Assembly Into Unlawful One:
According to explanation to sec. 141, an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.
4. Membership Of An Unlawful Assembly U/sec 142:
Whoever intentionally joins unlawful assembly or continues in it, being aware of the facts which renders an assembly an unlawful assemble is said to be a member of unlawful assembly.
5. Punishment U/Sec 143:
Whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months or with fine or with both.
Unlawful Assembly
Case Law
1994 Sc MR 588
It was held that in order to punish, the prosecution must prove and presence of each accused.
6. Punishment Where Person Armed With Deadly Weapon U/Sec 144:
Where member of an unlawful assembly is armed with a deadly weapon or with anything which is liked to cause death, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with doth.
7. Rioting:
(I)Defintion U/Sec 146:
Whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of assembly, every member of such assembly is guilt of the offence of rioting.
(II)Ingredients:
Following are the ingredients of an offence of rioting.
(i) Use of Force or Violence:
There must be use of force or violence by an unlawful or any member thereof to constitute an offence of rioting, it is not necessary that the force violence should be directed against any particular person or object.
(ii)By Unlawful Assembly or Any Member:
The force or violence must be use by an unlawful assembly or any member of it. So to constitute an offence of rioting all the ingredients of section 141 need to be fulfilled.
(iii)In Prosecution of Common Object:
Such force or violence should have been used in prosecution of the common object of such assembly.
(III)Punishment U/Sec 147:
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.
(Iv) punishment Where Rioting armed with a deadly weapon or with another which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
A person cannot be found guilty under this section unless he actually has a dangerous weapon in his hands. (PLD1981 SC286)
8. Conclusion:
To conclude, I can say, that the law discourages tumultuous assemblage of men to preserve the public peace. It defines what an unlawful assembly is and provides punishments for such an assembly.]]> Unlawful Assembly
Q. Define unlawful assembly. When it becomes riot? Explain fully. (2003) (200) (2001)
Q. What is unlawful assembly? Under what circumstances a member of a unlawful assembly commits an offence in prosecution of common object of the assembly. (2002) (1999) (1999 Annual) (1998) (1994)
Q. When member of unlawful assembly commits an offence in prosecution of common object of the assembly and how dose it effect other member of the Assembly. (2004/S) (2005/A)
1. Introduction:
Chapter VIII of P.P.C deals with the offences against public peace. If many persons assemble together to disturb peace and order, the trouble becomes magnified and deserves special treatment. Section 141 to 160 deals with these special offences, and provides punishments as such.
2. Relevant provisions:
Following are the relevant of P.P.C regarding the concerned topic.
Section 141 to 149 P.P.C.
3. unlawful ASSEMBLY u/SEC 141:
An assembly of five more person is designated an unlawful assembly, if the common object of the person composing that assembly is.
First To overawe by criminal force or show criminal force, the federal or any provincial Govt. or Legislature or any public servant in the exercise of the lawful power of such public servant, or
Second To resist the execution of any law, or of any legal process or
Third To commit any mischief or criminal trespass other offence, or
Fourth By means of criminal force or show of criminal force to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of right of way or the use of water or other incorporeal right of which he is in possession or, enjoyment or to enforce any right or supposed right. Or
Fifth By means of criminal force or show of criminal force to comply any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.
(I) Ingredients Of Sec 141:
Following are the ingredients of unlawful assembly.
(i) Assembly of five or More Persons:
To constitute unlawful assembly, it must consist of five or more persons. If the number of person is less than five, it would not constitute unlawful assembly even if the members have one of the five specified objects as their common object.
(ii)Common Object:
The essence f the offence is the common object of the persons forming the assembly. Whether the object is in their minds when they come together or whether it occurs to them afterwards in not material what in necessary is that they should all be aware of it and concur in it.
(iii)Object Must be Specified in Sec. 141:
The common object must be one of the five objects specified in section 141. A member of an unlawful assembly is guilty of an offence u/sec 141, when the common object of that assembly is of following types.
a. To Overawe Federal, ‘Provincial Govt. Legislature or public:
A person kept by superior influence is awe, so that he fears to do what the law empowers him to do is overawed. When the common object of an assembly is to overawe federal, provincial Govt. or Legislature or pubic servant in the exercise of the lawful power of such public servant, all person of the that assembly are guilt of an offence.
b. To Resist:
When the common object of an assembly is to resist the execution of any law or of any legal process e.g. warrant , attachment etc, the members of that assembly are regarded as member of unlawful assembly.
c. To commit Offences:
Although third clause specifies only two offences, viz mischief and criminal trespass but the words others offences seem to denote that all offences are included.
d. To Interfere Rights Attached With Property:
When the common object the assembly is to take-possession of any property or deprived any person of the enjoyment of a right way or use of water or other incorporeal right or to enforce any right, by the use of criminal force or by show of criminal force, that assembly will be designated as unlawful assembly and members will be punished as such.
e. Compulsion to Any person:
When the common object is to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do e.g. to restrict police officer to arrest.
(II) Turning Of Lawful Assembly Into Unlawful One:
According to explanation to sec. 141, an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.
4. Membership Of An Unlawful Assembly U/sec 142:
Whoever intentionally joins unlawful assembly or continues in it, being aware of the facts which renders an assembly an unlawful assemble is said to be a member of unlawful assembly.
5. Punishment U/Sec 143:
Whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months or with fine or with both.
Unlawful Assembly
Case Law
1994 Sc MR 588
It was held that in order to punish, the prosecution must prove and presence of each accused.
6. Punishment Where Person Armed With Deadly Weapon U/Sec 144:
Where member of an unlawful assembly is armed with a deadly weapon or with anything which is liked to cause death, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with doth.
7. Rioting:
(I)Defintion U/Sec 146:
Whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of assembly, every member of such assembly is guilt of the offence of rioting.
(II)Ingredients:
Following are the ingredients of an offence of rioting.
(i) Use of Force or Violence:
There must be use of force or violence by an unlawful or any member thereof to constitute an offence of rioting, it is not necessary that the force violence should be directed against any particular person or object.
(ii)By Unlawful Assembly or Any Member:
The force or violence must be use by an unlawful assembly or any member of it. So to constitute an offence of rioting all the ingredients of section 141 need to be fulfilled.
(iii)In Prosecution of Common Object:
Such force or violence should have been used in prosecution of the common object of such assembly.
(III)Punishment U/Sec 147:
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.
(Iv) punishment Where Rioting armed with a deadly weapon or with another which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
A person cannot be found guilty under this section unless he actually has a dangerous weapon in his hands. (PLD1981 SC286)
8. Conclusion:
To conclude, I can say, that the law discourages tumultuous assemblage of men to preserve the public peace. It defines what an unlawful assembly is and provides punishments for such an assembly.]]> <![CDATA[Define trespass what punishment is provided for this offences]]> https://vuhelp.net/Thread-Define-trespass-what-punishment-is-provided-for-this-offences Sun, 10 Jul 2011 13:03:07 -0400 Xpert]]> https://vuhelp.net/Thread-Define-trespass-what-punishment-is-provided-for-this-offences Trespass
Q. Explain criminal trespass stating it different kinds.(2003)
Q. Define lurking house trespass and house trespass.(2000)(1995)
Q. Define trespass what punishment is provided for this offences.(1995)
1. Introduction:
Trespass is an unlawful interference with one’ s person , property or rights. At common law, trespass was a from of action brought to recover damages for any injury to one’ s person or relationship with another. Section 441 to 456 of P.P.C deals with different kinds of trespass.
2.Relevant Provisions:
Following are the relevant provision of P.P.C regarding the concerned topic.
Section 441 and 477 for criminal trespass
Section 442 and 448 for house trespass
Section 443 and 453 for lurking house trespass.
3. Criminal Trespass:
(I)Definition U/Sec 441:
“Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property unlawfully remains there with intent as aforesaid, is said to commit criminal trespass.”
(II) Ingredients:
Following are the ingredients of section 441.
(i) Entry into Property in Possession of Another:
There must be entry into or upon property in the possession of another. Entry may be accomplished either by physically setting foot personally or by some other method.

Property:

The word property in this section is wide enough to cover moveable property into or upon which it is possible for a person to enter or upon entering remain, with intention described in the section.

Possession of Another:

The possession must be actual possession some person other than the alleged trespasser. It the complained is not in actual possession of the property this offence cannot be committed.
(ii)Unlawful entry or Unlawfully Remaining There:
The entry may be lawful or unlawful where the original entry was lawful i.e without any intention to commit an offence, but the person entering remains there with the intent specified in the section, he commits criminal trespass.
(iii)Intention to Commit Offence, Offence, Intimidate, Insult or Annoy Person in Possession:
Criminal trespass depends on the intention the offender and not upon the nature of the act intention must always be gathered from the circumstances of each case.

Commit an Offence:

There may be intention to commit an offence. The offence referred to cannot be the offence of criminal trespass itself, but must be some other offence either under the P.P.C or under any special enactment.

Intimidate, Insult or Annoy:

Intimidate means to over awe or to put in fear by some force or threat of violence. The word annoyance must be taken to mean annoyance that would generally and reasonably affect an ordinary person and not a particular individual. Where the intention is to commit an offence or intimate, insult or annoy any person in possession it would amount to criminal trespass.
(III) Object Of Sec. 441:
Object of section 441 P.P.C is to maintain peace by protecting possession irrespective of title.(PLD 1975SC556)
(IV) Right Of Private Defence Against Criminal Trespass:
In case of criminal trespass, the right of private defence continues so long as the trespass continues and is controlled by section 99 of P.P.C
Trespasser on property cannot claim right of private defence of his person unless he first brings to an end his own act of trespass.(PLD 1983 SC 135)
(V) Punishment U/Sec 447:
Whoever commits criminal trespass shall be punished with:

Imprisonment of either description for a term which may extend to three months or
With fine which may extend to RS. 1500, or
With both

4. House Trespass:
(I) Definition U/Sec 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 the custody of property, is said to commit house trespass.
(II) Ingredients:
Following are the ingredients of section 442.
(i)Criminal Trespass:
House trespass in an aggravated from of criminal trespass. All the ingredients of criminal trespass must be present to constitute the offence of house trespass.
(ii)Entry into Building, Tent or Vessel:
According to the explanation of section 442, the introduction of any part of the trespass’ s body is entering sufficient to constitute house trespass.
The entry must be in any building tent or vessel used as a human dwelling or any building used as a place of worship or for the custody of property.
What is building must always be a question of decree and circumstances, its usual and ordinary meaning is an enclosure of brick or stone work covered by a roof.
(II) Scope Of Sec. 442:
Section 442 dose not contemplate the intended or the prospective use of the building. Only those buildings fall within the purview of this section which have been put to the uses specified in the section.
(IV) Punishment U/Sec 448:
Whoever commits house trespass shall be punished with.

Imprisonment of either description for a term which may extend to one year, or
With fine which may extend to Rs. 3000. Or,
With both.

5. Lurking House Trespass:
(I)Definition U/Sec 443:
Whoever commits house trespass having taken precaution to conceal such house trespass from some person who has a right to exclude or eject the trespass from the building, tent or vessel which is the subject of the trespass, is said to commit lurking house-trespass.
(II) Ingredients:
Following are the ingredients of section 443.
(i)House-trespass:
The lurking house-trespass is an aggravated from of house-trespass. So to constitute this offence, all the ingredients of section 442 need to be fulfilled.
(ii)Made in Surreptitious Manner:
In order to constitute the offence of lurking house-trespass, the offender must have taken precautions to conceal such house-trespass.
(iii)Concealment From Person Who has Right to Exclude:
The concealment should be from such person who has the right to exclude or eject the trespasser.
(III)Punishment U/Sec 453:
Whoever commits lurking house-trespass shall be punished with.
(i)Imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
6.Conlusion:
To conclude, I can say that trespass in the name of every usurpation, however, slight of dominion over property, Section 441 defines criminal trespass punishment for which is provided in section 447. The offence of criminal trespass may be aggravated by the way in which it is committed and by the end for which it is committed. House-trespass is an aggravated from of criminal trespass and when it is being committed in a surreptitious manner it is called lurking house-trespass.]]> Trespass
Q. Explain criminal trespass stating it different kinds.(2003)
Q. Define lurking house trespass and house trespass.(2000)(1995)
Q. Define trespass what punishment is provided for this offences.(1995)
1. Introduction:
Trespass is an unlawful interference with one’ s person , property or rights. At common law, trespass was a from of action brought to recover damages for any injury to one’ s person or relationship with another. Section 441 to 456 of P.P.C deals with different kinds of trespass.
2.Relevant Provisions:
Following are the relevant provision of P.P.C regarding the concerned topic.
Section 441 and 477 for criminal trespass
Section 442 and 448 for house trespass
Section 443 and 453 for lurking house trespass.
3. Criminal Trespass:
(I)Definition U/Sec 441:
“Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property unlawfully remains there with intent as aforesaid, is said to commit criminal trespass.”
(II) Ingredients:
Following are the ingredients of section 441.
(i) Entry into Property in Possession of Another:
There must be entry into or upon property in the possession of another. Entry may be accomplished either by physically setting foot personally or by some other method.

Property:

The word property in this section is wide enough to cover moveable property into or upon which it is possible for a person to enter or upon entering remain, with intention described in the section.

Possession of Another:

Commit an Offence:

Intimidate, Insult or Annoy:

Imprisonment of either description for a term which may extend to three months or
With fine which may extend to RS. 1500, or
With both

Imprisonment of either description for a term which may extend to one year, or
With fine which may extend to Rs. 3000. Or,
With both.

Introduction:

Negligence in the breath of duty to take care. It is carelessness in a matter in which carefulness is made obligatory by law. It essentially consists in the mental attitude of under indifference with respect to one ‘s conduct and its consequences whenever a person is under a duty to take care, he is bound to take that amount of care which is considered reasonable under the circumstances.

Definition Of Negligence:

(I) According To Salmond:
“Negligence is the state of mind of under indifference towards one ‘s conduct and its consequences.”
(II) According To Wiles:
“Negligence is the absence of such care as it was the duty of the defendant to use.”
(III) According To Austin:
“Negligence is the breach by omission of a positive duty.
(IV) According To Clark:
“Negligence is the omission to take such care under the circumstances it is the legal duty of a person to take it is in a no sense a positive idea and has nothing to do with a state of mind.”

Kinds of Negligence:

Negligence is of two kinds:
(i) Advertent Negligence
(ii) Inadvertent Negligence
(I) Advertent:
It is commonly called willful negligence or recklessness. In this case, the harm done is foreseen as probable but in not willed. E. g . rash driving on a road.
(II) Inadvertent Negligence:
Inadvertent negligence can be called simple negligence. In this case, the harm done is neither foreseen nor willed e. g. a drunkard is walking along the road and he breaks a shop window as he knocks against the same.
(i) Negligence and Inadvertence:
According to some jurists, all negligence consists in inadvertence. An act is done negligently when the done did not know that the act was wrong but could have found out if he had tried to do so.
Criticism by Salmond:
Saimond raises two objections against this view.
a. All Negligence is Not Inadvertent:
According to slmound, all negligence is not inadvertent. Even if a thing is known to be wrong, I may do the same with he hope that it will not result in e. g . driving a fast car though a crowded street.
b. All Inadvertence is Not Negligence:
According to Salmond, all inadvertence in not Negligence. I can not negligent if I take full care which can reasonably be expected under the circumstances.

Culpable Negligence:

Carelessness become culpable when law imposes a duty of being careful. While measuring a degree of carelssness two things are taken into consideration and those are the degree of the seriousness of the consequences possible and the extent to which those consequences were probable.
(I) Duty Of Care:
It was thought at one time that there was not such thing in civil law as a legal duty to take care and therefore as such legal duty to the plaintiff by the defendant.
Salmond ‘s View:
In general , we may say that whenever an act would be a civil wrong if done intentionally it is also a civil wrong if done negligently. When there is a legal duty not do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally. No general principle can be jaid down as to the existence of this duty for it is a by brid compounded of an element of law and an element of fact.
Donoghue vs Stevenson :
Facts:
A manufacture of ginger beer sold to a retailer ginger been in bottle which contained the decomposed remains of a dead snail that fact was not known to the manufacture.
Held:
It was held that the manufacture owed a duty to take care that bottle did not contain any noxious matter and he was liable if the duty was broken.
(II) Standard Of Care:
According to Salmond ,English law recognizes only one standard of care and only one degree of negligence . when ever a person is under a duty to take care at all, he is bound to take that amount of it which is considered reasonable under the circumstances and the absence of which is culpable negligence.
(i) Standard of Care Which May Possibly Adopt:
It is possible to adopt either of the two standards of care, want of which amounts to negligence.
a. Highest degree of care of which human nature is capable.
b. Amount of care which would be reasonable in the circumstances of the particular case
The first standard is rejected and the second standard is accepted in actual practice. Law requires not what is possible but what is reasonable under the circumstances. Theoretically negligence is the omitting of that which a reasonable man would do or the doing of that which a reasonable man would not do.
(ii) Factors Determining Standard of Care:
The standard of care cannot be predetermined. It is a variable thing which varies form case to case and time while determining the amount of care necessary in any particular case, two factors must be taken into consideration.
a. Magnitude of risk to which other are existed by the act, and
b. The amount of benefit to be derived form the act.
Illustration:

If the driver of a car drives it at the speed of 40 miles an hour in the city, he considered to be guilty of negligence as the danger of accident in much greater than the benefit derived by the car driver. But if a train is run at the speed of 50 miles an hour, it is not considered to be negligence as the benefit enjoyed by the public on account of high speed are much greater than the risk of accident.

Theories Of Negligence:

Following are the theories of negligence,
(I) Austin ‘ S Theory:
Negligence consist essentially in inadvertence. It consists in a failure to be alert or vigilant. A negligent wrongdoer is one who dose not know that his act is wrong but who would have if had not been mentally indolent.
Criticism:
Salmond points out that there may be advertent or willful negligence as where a person sees the conseques of his act and in spite of that recklessly dose it without intending those consequence.
(II) Holnad ‘s Theory:
According to Holand, negligence is of two kinds, gross negligence and simple negligence.
Criticism:
These distinctions are based on roman law and are not recognized by English law.
(III) Subjective Theory:
Sir john salmond has propounded the subjective theory of negligence. According to him, negligence is purely subjective. It relates to the state of mind. It is a mental condition. Negligence consists in the mental attitude of under indifference with respect to one ‘ s conduct and its consequences. The essence of negligence is not inadvertence which may or may not be due carelessness but carelessness which may or may not result in inadvertence.
(IV) Objective Theory:
According to this view, negligence is not a state of mind but a particular type of conduct. It is a breach of the duty of taking care against the harmful results of one ‘s actions, and to refrain form unreasonably dangerous kinds of conduct. This theory finds the support form the fact that in the law of Torts, negligence consists in failure to take such care, which ordinarily prudent man would take in circumstance.
According to Clark and lindsell :
“ Negligence consists in and omission to take such care as under the circumstances is it legal duty of a person to take.”
Criticism:
Salmond points out that negligent conduct differs form negligence negligent conduct is a course of action which is the result of negligence. It is an objective fact which results form a state of mind.
(V) Reconciliation Of Theories:
Neither the objective nor the subjective theory is correct. Negligence is both subjective. They Emphasize different aspects of negligence. An contrasted with wrongful intention the negligence is subjective. As contrasted with inevitable accident, negligence is objective.

Conclusion:

Introduction:

Definition Of Negligence:

Kinds of Negligence:

Culpable Negligence:

Theories Of Negligence:

Conclusion:

To conclude, I can say, that negligence is nothing short of extreme carelessness. Carelessness excludes wrongful intention. A thing which is intended cannot be attribute to carelessness. Negligence does not necessarily consist in thoughtlessness or inadvertence. It is true that it is the commonest form of negligence but is not the only form.]]> <![CDATA[Define theft and explain when it is liable to hadd? What proof is required for it]]> https://vuhelp.net/Thread-Define-theft-and-explain-when-it-is-liable-to-hadd-What-proof-is-required-for-it Sun, 10 Jul 2011 12:53:54 -0400 Xpert]]> https://vuhelp.net/Thread-Define-theft-and-explain-when-it-is-liable-to-hadd-What-proof-is-required-for-it Theft Liable To Hadd
Q. Define theft and explain when it is liable to hadd? What proof is required for it. (2003)(2003/S)(2002)(2001)(2000)(1999)(1998)(1997)(2005/A)(2006/A)
Q. Define theft liable to hadd. How it is proved.(200/A)
1. Introduction:
In Islamic law, theft signifies the taking away the property of another in a secret manner at a time when such property is an custody and the value of such is not less than the prescribed nisab. The Holy Quran in Sura-Al-Maida provides punishment for such offence and it is also made punishable under the hudood ordinance.
2.Relevant Provisions:
Following are the relevant provisions of “ Enforcement of Hudood Ordinance VI of 1979”. Regarding the concerned topic.
Section 4 to 9 of Enforcement of Hudded ordinance VI of 1997.
3. Kinds Of Theft:
There are two kinds of theft:
(i) Theft liable to Hadd
(ii) Theft liable to Tazir
4. Theft Liable To Hadd:
(I) Definition Liable U/Sec 5:
Whoever, being an adult, surreptitiously commits, from any hirz theft of property of the value of the nisab or more, not being stolen property is said to commit theft liable to hadd”.
(II) Ingredients:
Following are the essentials of theft liable to hadd.
(i)Adult Offender:
The offender must be an adult person.
u/sec 2(a):
adult means a person who has attained the age of eighteen years of puberty.
(ii)Surreptitiously Commits:
Offence of theft liable to hadd must be committed surreptitiously. According to Explanation 2 of sec. 5, it means that the person committing the theft commits it believing that the victim of theft does not know of his action.

Continuance of Surreption:

For surreptitious removal of property, it is necessary
If it is day, time surreption should continue till the completion of the offence, and
If it is night, surreption need not continue after commencement of the offence.
(iii)Removal From Hirz:
The property must be removed from any hirz.

Meaning of Hirz:

Literally hiez means precaution and protectin.
U/sec2(d):
“Hirz means an arrangement made for the custody of property.”
According to Explanation 1 of sec. 2, it is not necessary that the goods in hirz be confined in a building or a in a locked house. Grazing cattle under the custody of the herdsman are considered under his hirz. If any of the cattle is stolen, it will be deemed to be a theft from hirz.
(iv)Value of Stolen Property:
The property must be nisab as laid down in section 6.
U/sec 6.
The nisab for theft liable to hadd is 4. 457 grams of gold. According to explanation to section 6, If theft is committed from the same hirze in more then one transaction or from more than one hirz and the value of stolen property in each case if the less than nisab, it is not liable to hadd even though the value of the properties removed exceeds the nisab, if collected.
Illustration:
‘A’ enters a house several times and removes from the house on each occasion property, the value of which does not amount to the nisab. Such theft is not liable to hadd even though the value of the properties removed exceeds the nisab, if collected.
(v) Not Being a Stolen Property:
It must not be a stolen property i.e. must not be acquired by means of theft. According to explanation 1 of section 5, stolen property does not include property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed.
(vi)Knowledge of Accused:
Accused must be aware that the property stolen by him is either equivalent or exceeding limit of nisab.
5.Proof Of Theft Liable To Hadd U/Sec 7:
The proof of theft liable to hadd shall be in one of the following forms.
(I)Confession:
Where the accused pleads guilty of the commission of theft liable to hadd then he shall be liable to hadd.
“Ghulam Habib Vs. state (1994)”
“Confession in a theft case would be material only if made before the trial court.”
(II)By Evidence Of Witnesses:
Theft liable to hadd may be proved by the evidence of at-least two eye witnesses.
Case Law
2004 P. cr. L. J 285
It was held that an accused person is presumed to be innocent unlit his guilt is proved.

Witnesses must be male
They must be Muslim, but if the accused in non-Muslim the witnesses may be non-Muslim.
They must be adult
They must not be the victim of the theft
The court must be satisfied about them having regard to the requirements of tazkiya-al-shuhood(inquiry adopted by the court to satisfy itself to the credibility of a witness) that they are:

Continuance of Surreption:

Meaning of Hirz:

Witnesses must be male
They must be Muslim, but if the accused in non-Muslim the witnesses may be non-Muslim.
They must be adult
They must not be the victim of the theft
The court must be satisfied about them having regard to the requirements of tazkiya-al-shuhood(inquiry adopted by the court to satisfy itself to the credibility of a witness) that they are:

Truthful persons, and
Abstain from major sins
6.Theft By More Than One Person U/Sec 8:
Where theft liable to hadd is committed by more than one person and the aggregate value of the stolen property is such that, if the property is divided equally among them, each one of them gets a share which amounts to or exceeds the nisab, the hadd shall be imposed on each of them.
7. Punishment For Theft Liable To Hadd U/Sec 9:
However commits theft liable to hadd shall be punished with.
(i)Amputation of his right hand from the joint of the wrist, if it is committed for first time.
(ii) Amputation of his left foot up to the ankle, if it is committed for the second time.
(iii)Imprisonment for life, if it is committed third time or any time subsequent thereto .
Confirmation by Court Appeal:
Punishment of hadd shall not be excuted unless it is confirmed by the court to which an appeal from the order of the conviction lise.
Postponement of Hadd.
Hadd shall be postponed if the authorized medical officer is of the opinion that the amputation of hand or foot may cause the death of the convict, until the apprehension of death ceases.
8. Conclusion:
To conclude, I can say, that theft liable to hadd will be committed when property is stealthily taken away from the custody of that person or a person under whose hirz the property was, and the value of that property was not less than the prescribed nisab. Crime of theft represent the most serious crime against property and by severing the hand of the robber. Islam gets to the root of evil and protects society from the destruction.]]> <![CDATA[Define and distinguish between theft and extortion?]]> https://vuhelp.net/Thread-Define-and-distinguish-between-theft-and-extortion Sun, 10 Jul 2011 12:52:24 -0400 Xpert]]> https://vuhelp.net/Thread-Define-and-distinguish-between-theft-and-extortion Theft And Extortion
Q Define and distinguish between theft and extortion? What punishment is provided for these offences.
(1994) (1993).
1. Introduction:
Extortion is the offence carried out by overpowering the will of the owner, while theft is the offence which is committed without the consent of the owner. The offence of extortion occupies a middle place between theft and robbery.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 378 and 379 for theft
Section 383 and 379 for Extortion
3. Theft U/Sec 378:
Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person ‘s consent, moves that property in order to such taking, is said to commit theft.
(i) Ingredients Of Theft:
In order to constitute theft, following factors are essential.
(i) Dishonest intention to take property
(ii) Property must be moveable
(iii) That should be in possession of other person
(iv) There must be removal or moving of that property
(v) Without consent of the owner
(Explanation of these ingredients have been give in the question difference between theft and criminal breath of trust)
(II) punishment U/Sec 379:
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to there years or with fine or both.
Case Law
2000 MLD 651
It was held that person found guilty of offence of theft u/s 397 can not Simultaneously be convicted u/s 411 of P.P.C
4. Extortion U/sec 383:
Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion.
(I) Ingredients:
Following are the ingredients of extortion
(i) Fear of Injury
There must be intentionally putting a person in fear of injury to himself or another. Injury implies illegal harm, and it maybe of any kind.
Illustration:
‘A’ threatens ‘B’ that he will keep ‘A’s child in wrongful confinement unless ‘A’ gives him certain amount of money. ‘A’ has committed extortion.
(ii) Dishonest Inducement:
The element of dishonesty is the essence of the offence of extortion. There can be no extortion unless a person is by threat of injury dishonestly induces to security, or anything signed or sealed which may be converted into valuable security.
Illustration:
‘A’ by putting ;Z’ in fear of grevious hurt, dishonestly induces ‘Z’ to sing or affix his seal to a bland paper and deliver it to ‘A’. ‘Z’ sings and delivers the paper to ‘A’ Here as the paper so signed may be converted into a valuable security ‘A’ has committed extortion.
a. To Any Person:
It is not necessary that the threat should be used and the property received by one and the same individual. A threat may be made by some and the property received by other persons, and they all will be guilty of extortion.
(II) Punishment U/Sec 384:
Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
5. Difference Between Theft And Extortion:
(I) As To Consent:
In extortion, consent is obtained by putting the person in possession of property in fear of property in fear of injury to himself or any other person.
In theft, the offender’s intention is to take the property without the owner’s consent.
There is no element of force in theft.
(II)Property:
In Extortion , both moveable and immoveable property may be the subject of the offence. In theft it is limited only to moveable property.
(III) Element Of Force:
There is element of force in the offence of extortion as the property is obtained by putting a person in fear of injury to that person or any other.
There is no element of force in theft.
(IV) Scope:
Extortion is wider in scope as it coved any kind of property, valuable security or anything that may be converted into valuable security.
Theft covers only the cases of moveable property.
(V) Taking Of Property:
In extortion, threat may be by one person and the property may be received by anther person.
In theft, property must be move by person in order to such taking.
(VI) Effect:
In extortion, the property is delivered.
In theft, there is dishonest removal of property.
6. Conclusion:
To Conclude, I can say, that the offence of theft and extortion are offence against property. Extortion is the offence which occupies a middle place between theft and robbery as the element of force is present in this offence, which is missing in the offence of theft.]]> Theft And Extortion
Q Define and distinguish between theft and extortion? What punishment is provided for these offences.
(1994) (1993).
1. Introduction:
Extortion is the offence carried out by overpowering the will of the owner, while theft is the offence which is committed without the consent of the owner. The offence of extortion occupies a middle place between theft and robbery.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 378 and 379 for theft
Section 383 and 379 for Extortion
3. Theft U/Sec 378:
Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person ‘s consent, moves that property in order to such taking, is said to commit theft.
(i) Ingredients Of Theft:
In order to constitute theft, following factors are essential.
(i) Dishonest intention to take property
(ii) Property must be moveable
(iii) That should be in possession of other person
(iv) There must be removal or moving of that property
(v) Without consent of the owner
(Explanation of these ingredients have been give in the question difference between theft and criminal breath of trust)
(II) punishment U/Sec 379:
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to there years or with fine or both.
Case Law
2000 MLD 651
It was held that person found guilty of offence of theft u/s 397 can not Simultaneously be convicted u/s 411 of P.P.C
4. Extortion U/sec 383:
Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion.
(I) Ingredients:
Following are the ingredients of extortion
(i) Fear of Injury
There must be intentionally putting a person in fear of injury to himself or another. Injury implies illegal harm, and it maybe of any kind.
Illustration:
‘A’ threatens ‘B’ that he will keep ‘A’s child in wrongful confinement unless ‘A’ gives him certain amount of money. ‘A’ has committed extortion.
(ii) Dishonest Inducement:
The element of dishonesty is the essence of the offence of extortion. There can be no extortion unless a person is by threat of injury dishonestly induces to security, or anything signed or sealed which may be converted into valuable security.
Illustration:
‘A’ by putting ;Z’ in fear of grevious hurt, dishonestly induces ‘Z’ to sing or affix his seal to a bland paper and deliver it to ‘A’. ‘Z’ sings and delivers the paper to ‘A’ Here as the paper so signed may be converted into a valuable security ‘A’ has committed extortion.
a. To Any Person:
It is not necessary that the threat should be used and the property received by one and the same individual. A threat may be made by some and the property received by other persons, and they all will be guilty of extortion.
(II) Punishment U/Sec 384:
Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
5. Difference Between Theft And Extortion:
(I) As To Consent:
In extortion, consent is obtained by putting the person in possession of property in fear of property in fear of injury to himself or any other person.
In theft, the offender’s intention is to take the property without the owner’s consent.
There is no element of force in theft.
(II)Property:
In Extortion , both moveable and immoveable property may be the subject of the offence. In theft it is limited only to moveable property.
(III) Element Of Force:
There is element of force in the offence of extortion as the property is obtained by putting a person in fear of injury to that person or any other.
There is no element of force in theft.
(IV) Scope:
Extortion is wider in scope as it coved any kind of property, valuable security or anything that may be converted into valuable security.
Theft covers only the cases of moveable property.
(V) Taking Of Property:
In extortion, threat may be by one person and the property may be received by anther person.
In theft, property must be move by person in order to such taking.
(VI) Effect:
In extortion, the property is delivered.
In theft, there is dishonest removal of property.
6. Conclusion:
To Conclude, I can say, that the offence of theft and extortion are offence against property. Extortion is the offence which occupies a middle place between theft and robbery as the element of force is present in this offence, which is missing in the offence of theft.]]> <![CDATA[Define and distinguish between theft and criminal breach of trust]]> https://vuhelp.net/Thread-Define-and-distinguish-between-theft-and-criminal-breach-of-trust Sun, 10 Jul 2011 12:50:31 -0400 Xpert]]> https://vuhelp.net/Thread-Define-and-distinguish-between-theft-and-criminal-breach-of-trust Theft And Criminal Breach Of Trust
Define and distinguish between theft and criminal breach of trust.
(2003) (2003/A) (2001) (2005/S) (2006/A)
1. Introduction:
Theft and criminal breath of trust are offence against property. In theft, the property is taken out of the possession of anther person without his consent while in criminal breach of trust, it is the misuse or disposes of property without the consent of real owner.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 378 and 379 for theft
Section 405 and 406 for criminal breach of trust.
3. Theft U/Sec 378:
Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’ s consent, moves that property in order to such taking, is said to commit theft.”
(I) Ingredients Of Theft:
In order to constitute theft, following factors are essential.
(i) Dishonest Intention:
There must be dishonest intention to take property. Where the circumstances show that the bonafide claim or right, it is not theft,
(ii) Movable Property:
The property must be moveable to constitute the offence of theft. According to explanation 1 to sec 378, a thing so long as it is attached to the earth is not the subject of theft but it becomes capable of being subject of theft as soon as it is severed form the earth.
Illustration:
‘A’ cuts down a tree on Z’s ground with the intention of dishonestly taking the tree out of ‘Z’ s possession without his consent. Here as soon as ‘A’ has severed the tree un order to such taking, he has committed theft.
(iii)Possession of Other person:
The property should be in possession of another person and it should be taken out of his possession. There is not theft of wild animals, birds or fish while at large, but there is a theft of tamed of tamed animals.
(iv)Moving or Removal of Property:
There must be some removal of the property in explanation 3 of Sec 378 , a person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it form any other things as well as by actually moving it
a. Moving an Animal:
According to explanation 4 0f Section 378, a person who any means causes an animal to move is said to move that animal and to move every thing which in consequence of the motion so caused, is moved by that animal.
Illustration:
‘A’ puts a bait for dogs in his pockets and thus induces Z’ s dog to follow it. Here if A’ s intention be dishonestly to take the dog out of Z’s possession without his consent. He committed theft as soon as Z’ s dog has begun to follow him.
(v) Without Consent of Possession :
The thing must moved without consent of the possessor. According to explanation 5 of section 378 the consent may be express or implied and may be given either by the person in possession or by any person having for that purpose authority either express or implied.
Illustration:
‘A’ a friend of ‘Z’ goes to this library in this absence and takes away a book without his express consent for the purpose of merely reading it. And with the intention of intention of returning it Here if ‘A’ impression is that he had Z’ s implied consent to use ‘Z’ s book he has not committed theft.
(II) Punishment U/Sec 397:
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
4. Criminal Breach Of Trust U/Sec 405:
A person commits criminal breach of trust if he being in any manner entrusted with property or with my dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. Or of my legal contract, express or implied which he has made touching the discharge of such trust or will full suffers any other person to do so.
Case Law
SCMR 1980 402
To establist the charge of criminal breach of trust the prosecution must prove not only entrustment but also that the accuse dishonestly misappropriated the property.
(I) Ingredients Of Section 405:
Following are the ingredients of criminal breach of trust.
(i) Entrusted to Person Property:
Entrustment is an essential element of the offence of criminal breach of trust. It may have different implication in different contexts. In its most general significance , it means handing over the possession for some purposes. Entrustment of property and failure of the accused to account of the sane is sufficient to infer that the accused committed the offence of criminal breach of trust.
(iii)Dishonestly Misappropriation or Converting that Property:
Offence of criminal breach of trust world not be made out when there is no material to substantive allegation of dishonest misappropriation or convertion to one’ s own use of that properly.
(iii)Dishonestly Use or Disposal of Property:
A criminal breach of trust may be committed by a person who dishonestly uses disposes of that property or will full suffers any other person so to do in violation.
a. Of any direction of law prescribing the mode in which such trust is to be discharged.
b. Of any legal contract made touching the discharge of such trust.
Illustration :
‘A’ being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will and appropriates them to his own use.’ A ‘ has committed breach of trust.
(II) Punishment U/Sec 406:
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both.
5. Difference Between Theft And Criminal Breach Of Trust:
(I) Mode Of Acquistion:
In theft, property is acquired without the consent of the owner.
In criminal breach of trust property is acquired with the consent of the owner.
(II)As To Intention:
In theft, the dishonest intention to take property exists at the time of such taking.
In criminal breach of trust, that intention may acquire subsequently to the acquisition of property.
(III) As To Possession Of Property:
In theft, there is no prior possession of property, the offence is completed as soon as the property is dishonestly taken away.
In criminal breach of trust, the offender prior to the offence is himself in possession of the property and the offence is completed when he dishonestly converts the same to his own use.
(IV) Nature Of Property:
In theft, the property involved is a moveable property.
In criminal breach of trust, it may be any property i. e . moveable or immoveable.
(V) In theft, there is not relation exists between the offender and the owner
In criminal breach of trust, there is same sort, of relationship exists between the offender and the owner and the property is given on trust or received on one ‘ s behalf.
(VI) The punishment for theft is three years imprisonment or fine or both.
The punishment for criminal breath of trust is imprisonment which may extend to seven years or fine or both.
6. Conclusion:
To conclude. I can say that the offence of criminal breach of trust is akin to theft but differs form it in important respects. Both these offences are against property but in criminal breach of trust there must be entrustment of property which is not the element of theft.]]> Theft And Criminal Breach Of Trust
Define and distinguish between theft and criminal breach of trust.
(2003) (2003/A) (2001) (2005/S) (2006/A)
1. Introduction:
Theft and criminal breath of trust are offence against property. In theft, the property is taken out of the possession of anther person without his consent while in criminal breach of trust, it is the misuse or disposes of property without the consent of real owner.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 378 and 379 for theft
Section 405 and 406 for criminal breach of trust.
3. Theft U/Sec 378:
Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’ s consent, moves that property in order to such taking, is said to commit theft.”
(I) Ingredients Of Theft:
In order to constitute theft, following factors are essential.
(i) Dishonest Intention:
There must be dishonest intention to take property. Where the circumstances show that the bonafide claim or right, it is not theft,
(ii) Movable Property:
The property must be moveable to constitute the offence of theft. According to explanation 1 to sec 378, a thing so long as it is attached to the earth is not the subject of theft but it becomes capable of being subject of theft as soon as it is severed form the earth.
Illustration:
‘A’ cuts down a tree on Z’s ground with the intention of dishonestly taking the tree out of ‘Z’ s possession without his consent. Here as soon as ‘A’ has severed the tree un order to such taking, he has committed theft.
(iii)Possession of Other person:
The property should be in possession of another person and it should be taken out of his possession. There is not theft of wild animals, birds or fish while at large, but there is a theft of tamed of tamed animals.
(iv)Moving or Removal of Property:
There must be some removal of the property in explanation 3 of Sec 378 , a person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it form any other things as well as by actually moving it
a. Moving an Animal:
According to explanation 4 0f Section 378, a person who any means causes an animal to move is said to move that animal and to move every thing which in consequence of the motion so caused, is moved by that animal.
Illustration:
‘A’ puts a bait for dogs in his pockets and thus induces Z’ s dog to follow it. Here if A’ s intention be dishonestly to take the dog out of Z’s possession without his consent. He committed theft as soon as Z’ s dog has begun to follow him.
(v) Without Consent of Possession :
The thing must moved without consent of the possessor. According to explanation 5 of section 378 the consent may be express or implied and may be given either by the person in possession or by any person having for that purpose authority either express or implied.
Illustration:
‘A’ a friend of ‘Z’ goes to this library in this absence and takes away a book without his express consent for the purpose of merely reading it. And with the intention of intention of returning it Here if ‘A’ impression is that he had Z’ s implied consent to use ‘Z’ s book he has not committed theft.
(II) Punishment U/Sec 397:
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
4. Criminal Breach Of Trust U/Sec 405:
A person commits criminal breach of trust if he being in any manner entrusted with property or with my dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. Or of my legal contract, express or implied which he has made touching the discharge of such trust or will full suffers any other person to do so.
Case Law
SCMR 1980 402
To establist the charge of criminal breach of trust the prosecution must prove not only entrustment but also that the accuse dishonestly misappropriated the property.
(I) Ingredients Of Section 405:
Following are the ingredients of criminal breach of trust.
(i) Entrusted to Person Property:
Entrustment is an essential element of the offence of criminal breach of trust. It may have different implication in different contexts. In its most general significance , it means handing over the possession for some purposes. Entrustment of property and failure of the accused to account of the sane is sufficient to infer that the accused committed the offence of criminal breach of trust.
(iii)Dishonestly Misappropriation or Converting that Property:
Offence of criminal breach of trust world not be made out when there is no material to substantive allegation of dishonest misappropriation or convertion to one’ s own use of that properly.
(iii)Dishonestly Use or Disposal of Property:
A criminal breach of trust may be committed by a person who dishonestly uses disposes of that property or will full suffers any other person so to do in violation.
a. Of any direction of law prescribing the mode in which such trust is to be discharged.
b. Of any legal contract made touching the discharge of such trust.
Illustration :
‘A’ being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will and appropriates them to his own use.’ A ‘ has committed breach of trust.
(II) Punishment U/Sec 406:
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both.
5. Difference Between Theft And Criminal Breach Of Trust:
(I) Mode Of Acquistion:
In theft, property is acquired without the consent of the owner.
In criminal breach of trust property is acquired with the consent of the owner.
(II)As To Intention:
In theft, the dishonest intention to take property exists at the time of such taking.
In criminal breach of trust, that intention may acquire subsequently to the acquisition of property.
(III) As To Possession Of Property:
In theft, there is no prior possession of property, the offence is completed as soon as the property is dishonestly taken away.
In criminal breach of trust, the offender prior to the offence is himself in possession of the property and the offence is completed when he dishonestly converts the same to his own use.
(IV) Nature Of Property:
In theft, the property involved is a moveable property.
In criminal breach of trust, it may be any property i. e . moveable or immoveable.
(V) In theft, there is not relation exists between the offender and the owner
In criminal breach of trust, there is same sort, of relationship exists between the offender and the owner and the property is given on trust or received on one ‘ s behalf.
(VI) The punishment for theft is three years imprisonment or fine or both.
The punishment for criminal breath of trust is imprisonment which may extend to seven years or fine or both.
6. Conclusion:
To conclude. I can say that the offence of criminal breach of trust is akin to theft but differs form it in important respects. Both these offences are against property but in criminal breach of trust there must be entrustment of property which is not the element of theft.]]> <![CDATA[Explain the difference between substantive law and law of procedure]]> https://vuhelp.net/Thread-Explain-the-difference-between-substantive-law-and-law-of-procedure Sun, 10 Jul 2011 12:49:15 -0400 Xpert]]> https://vuhelp.net/Thread-Explain-the-difference-between-substantive-law-and-law-of-procedure Substantive And Procedural Law
Q. Explain the difference between substantive law and law of procedure.(1996)(1995),(1993)
1. Introduction:
Statute law is either substantive or procedural. Substantive law confers the rights and procedural is the mode by which a legal right is enforced. The distinction between substantive and procedural law is drawn by each legal system along the lines of expediency and not in the same place for all purposes. The distinction between these two is very important as every lawyer has to get in touch with them in his daily routine.
2. Law Of Procedure:
(I)Definition
(i)According to Salmond:
“The law of procedure may be defined as that branch of law which governs the process of litigation. It is the law of actions and includes all legal proceedings whether civil or criminal.
Criticism:
Salmond has ignored that less spectacular and unattractive side of procedural law, which goes under the name of ”Conveyancing” such as drawing sale deeds, partnership deeds, chequse and other bills of exchange.
(II)Elements Of Prcedural Law:
Following are the elements of judicial procedure or procedural law.
(i) Summons:
This is give an opportunity to all the parties interested, to present themselves before the court and making the case heard.
(ii)Pleadings:
Pleadings bring to light the matters in-issue between the parties. In civil law, it consists of plaint, written statement and replication. In criminal law, it includes complaints and written statement.
(iii)Proof:
Proof is the process by which the parties supply the court with the data necessary for the decision of the case.
(iv)Judgement:
A judgement is the decision of the court. It may be in the form of decree or order.
(v)Execution:
It is the use of the physical force of the state in enforcing the judgement when voluntary submission to it is withheld.
3. Substantive Law:
i. According to Salmond:
substantive law relates not to the process of litigation but to its purpose and subject-matter.
4. Distinction Between Sub-Stantive And Procedural Law:
(I)According to Holland:
Substantive law determines right and procedural law determines remedies.
Criticism:
Salmond critcizses this view on two grounds.

The whole law of remedies dose not belong to procedure as a right to recover damages is a remedial right, but it belongs to substantive law and not to the law of procedure.
According to Holand, there can be no rights in the realm of procedure. But the law of procedure also creates rights. A right of appeal is both a matter of substance and procedure.

(ii)According to Salmond:
The difference between substantive law and procedural law is one of form and not of substance. A rule belonging to one class may, by a change form, pass over into the other without materially affecting the practical issue. He refers to three classes of such cases.

Equivalency of Exclusive Evidential Fact:

An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. The rule of evidence is that a contract can be proved only by a writing. This corresponds to a rule of substantive law that a contract is void unless it is reduced to writing. In one case, the writing is the exclusive evidence of title. In other cases the writing is a part of the title itself.

Equivalency of Exclusive Evidential Fact To Fact Proved:

A conclusive evidential fact is equivalent to and tends to take the place of the pact proved by it. Procedural law says that the child under the age of 8 cannot have a criminal intention and substantive law exempts such a child from punishment.

Equivalency of Limitation of Actions to Prescription of Right:

The whole law of remedies dose not belong to procedure as a right to recover damages is a remedial right, but it belongs to substantive law and not to the law of procedure.
According to Holand, there can be no rights in the realm of procedure. But the law of procedure also creates rights. A right of appeal is both a matter of substance and procedure.

Equivalency of Exclusive Evidential Fact:

Equivalency of Exclusive Evidential Fact To Fact Proved:

Equivalency of Limitation of Actions to Prescription of Right:

The limitation of actions is the procedural equivalent of the prescription of rights. The legal procedure destroys the bond between right and remedy and substantive law destroys the right itself.
5. Other Distinctions Between Substantive And Procedural Law:
(I)As To Purpose:
Substantive law is concerned with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which those ends can be achieved.
(II)Regulation:
Substantive law determines the conduct and relation of litigants in respect of the matters litigated.
Procedural law regulates the conduct and relations of courts and litigants in respect of the litigation itself.
(III)Subject Matter:
Substantive law regulates the affairs controlled by judicial proceedings.
Procedural law regulates the conduct of affairs in the judicial the conduct of affairs in the judicial proceedings.
(IV)As To Facts Constitute A Wrong:
What fact constitute a wrong is determined by substantive law.
What facts constitute proof of a wrong is a question of procedure.
(V)Nature:
Substantive law deals with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which the administration of justice achieve.
(VI)As To Connection:
Substantive law is related and connected with public at large.
Procedural law is connected with the parties before the court.
(VII)As To Abolition Of Punishment:
The abolition of capital punishment is an alteration of the substantive law.
The abolition of imprisonment for debt is merely an alteration in the law of procedure as the imprisonment for debt is merely an instrument to enforce payment.
(VIII)Scope:
Substantive law relates to matters outside the court.
Procedural law deals with matters inside courts.
(IX)Appearance:
Substantive law provides substance of law in the shape of statute.
Procedural law is the law of actions meanings by actions.
(X)Branch Of Law:
Procedural law is that branch of the law which governs the process of litigation.
All the residue is substantive law.
(XI) Supremacy:
Substantive law is supreme in nature.
Procedural law is subordinate in nature.
6. Conclusion:
To conclude, I can say, that the substantive law which defines our rights and duties is, of course important to all of us, but unless the adjective law of procedure is a working machine, constantly translating these obligations in terms of court orders and actual execution, the substantive law might as well not exist.]]> <![CDATA[Discuss the law relating to strict liability which excludes mensrea in criminal case]]> https://vuhelp.net/Thread-Discuss-the-law-relating-to-strict-liability-which-excludes-mensrea-in-criminal-case Sun, 10 Jul 2011 11:23:56 -0400 Xpert]]> https://vuhelp.net/Thread-Discuss-the-law-relating-to-strict-liability-which-excludes-mensrea-in-criminal-case Strict Liability
Q. Discuss the law relating to strict liability which excludes mensrea in criminal case.(1999)(1996)(1993)(2004/A)(2005/A)
Q. How does liability accure without default (1998).
Q. Ignorance of law is no excuse? Discuss with reference to mistake of law and mistake of fact.(1997)
1. Introduction:
The liability is the ultimate purpose of the law because the wrong-doer must make up or suffer for he has already failed in doing what he ought to have done a man may be punished for wrong done, even if he has no guilty mind or at fault. These are wrongs of strict liability.
2. Strict Liability:
Wrongs which do not require either wrongful intent or negligence are know as the wrongs of strict liability. In such cases, a person in punished for committing wrongs even if he has no guilty mind.
3. Relevant For Strict Liability:
Strict liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence of the offender.
4. Strict Liability In Statutory Context:
The presence in or absence from the definition of the offence, of the word “Knowingly” or a similar word require mensrea is of great importance but not conclusive.
“Sweet vs parsley (1970)”
“Where the section of the Act expressly require mensrea, for example because they contain the word “Knowingly” is not itself sufficient to justify a decision that a section which is silent as to mensrea, creates an absolute offence.”
5. Strict Liability In Civil Cases:
Mensrea is generally irrelevant in civil proceedings as the object is to compensate the plaintiff for his loss and not punish the defendant, so the rule of strict liability is generally applied civil cases.
(I)Exceptions:
In certain civil actions, the object of the law is to punish the defendant and strict liability is not imposed e.g malicious prosecution, negligence etc.
6. Strict Liability In Criminal Cases:
Generally in criminal cases, there is no criminal liability unless mensrea is present and strict liability is not imposed.
(I)Exception:
Following are exception at common law to the rule requiring mensrea or where rule of strict liability is imposed.
(i)Public Nuisance:
In the public nuisance any employer might be held liable for the act of his employer even though he himself did not know it had taken place.
(ii)Criminal Libel:
In criminal libel a newspapers proprietor is liable for libels punished by his employers.
(iii)Contempt of Court:
In criminal contempt of court intention or negligence need be proved.
(iv)Outraging Public Decency:
This offence require a proof of conduct of obscene nature, as to result in an outrage to public decency.
7. First Case On Strict Liability:
The case which has been said to be the first to impose strict liability is Woodrow.
“Case of Woodrow(1846)”
Facts:
Defendant was found guilty of having in his possession adulterated tobacco, although he did not know it was adulterated.
Held:
Defendant was held liable even if the adulteration was discoverable only by a nice chemical analysis.”
8. Liability Is Strict Not Absolute:
The liability is strict but not absolute in offences of strict liability.
There is not reason why all other defences should not be available as they are in the case of offences requiring full mensrea. Even when dangerous driving was an offence of strict liability it was held to be a defence, if defendant was in state of automatism when he drove the vehicle so insanity, necessity, duress or coercion should be available equally on a charge of offence of strict liability as in the case of any other offence.
9. Catagories Of wrongs Of Strict Liability:
The most important wrongs of strict liability fall into three catagories.
(I)Mistake Of Law:
Absolute responsibility in the case of a mistaken of law is based on the following maxim.
“Ignorantia juris enminem excusat.”
(Ignorance of law is not excuse)
Even if a person commits an offence on account of a mistake of law, that is no excuse in the eye of law. He is liable to be punished although he had no guilty mind at the time of committing the offence.
(i)Reasons for Mistake of Law is Not Considered As Defence:
a. Law is the embodiment of common sense and natural justice and hence must be obeyed.
b. Law both can be should be limited in extent.
c. According to Salmond, the law is in legal theory definite and knowable, it is the duty of every man to know that part of it which concerns him, therefore innocent and inevitable ignorance of law is impossible.
d. According to Austin, if ignorance of law were a ground of exemption the administration of justice would be arrested. For in almost every case, ignorance of law would be alleged.
(ii)Exceptions:
There are certain exceptions to the general rule that the ignorance of law is no excuse.

Ignorance of special law is excusable. No person can be held guilty for the violation of the foreign law of any country.
It also dose not apply to the rules of equity as developed in England.

Ignorance of special law is excusable. No person can be held guilty for the violation of the foreign law of any country.
It also dose not apply to the rules of equity as developed in England.

(II)Mistake Of Fact:
Absolute responsibility of mistake of fact can be disussed under the following heads.
(i)Mistake of Fact in Criminal Cases:
In criminal cases, mistake of fact is a good defence against strict liability. If a person dose something under a mistake without intending to do which he actually dose, he is not criminally liable for his action.
Example:
A police constable goes to arrest ‘X’ to be ’X’ but arrest ‘Y’ THINKING ‘y’ to be ‘X’ he is not guilty of any crime.
(ii)Mistake of fact in Civil Cases:
In the case of civil law, a mistake of fact involves liability.
According to Salmond:
“It is the general principal of law that he who intentionally or semi-intentionally interferes with the person, property, reputation or other rightful interests of another, does as his peril”
(III)Inevitable Accident:
Inevitable accident is that, which avoidance requires a degree of care exceeding the standard demanded by law. It is commonly regarded as a ground of exemption from liability in civil and criminal cases. There is no intention because the consequences are not desired in the case of an accident.
(i)Exception:
There is one important exception to the above rule in civil law. There are cases in which the law provides that a man shall at his peril and shall take his chance if an accident happens.
“Rylands vs Fletcher”
“It was held that if a person brings or accumulates on his land anything which if escapes and causes damage to his neighbours he is responsible, however careful he may have taken to prevent damage.”
10. Conclusion:
To conclude, I can say, that law imposes strict liability mostly on cases in which high standard of care is required like food, drugs etc to save people from the negligent acts of others. The greater the degree of social danger, the more likely is the offence to be interpreted as one strict liability.]]> <![CDATA[what are Restriction imposed upon the use of force in self defence]]> https://vuhelp.net/Thread-what-are-Restriction-imposed-upon-the-use-of-force-in-self-defence Sun, 10 Jul 2011 11:22:39 -0400 Xpert]]> https://vuhelp.net/Thread-what-are-Restriction-imposed-upon-the-use-of-force-in-self-defence Self-Defence
Q. What is right of private Defance? When it extends to causing death of another.(2000/s)(2004/s)
Q. what are Restriction imposed upon the use of force in self defence (2005/A)(2007/A)
Q. What are the restrictions imposed upon the use of force in self defence under P.P.C.(2005/A)(2006/A)(2002/S)
Q. What is right of private defence? What are limitation imposed on the use of force of this right. Explain fully.(2002/A)
1. Introduction:
Under Pakistan penal code every one has right to defend his property honour and himself.
Self defense is a fundamental right it is provided by every religion. Law, constitution and ethics. Right of self defense can defend also be exercised even by a stranger to defend the person or property of another. The right of private defence is restricted to not inflicting more harm than it is necessary to inflict for the purpose of defence.
2. Relevant Provisions:
Sec. 96, 97, 99, 100, 101, 102 P.P.C
3. Meaning Of Self Defence:
Concise Oxford Dictionary:
A defence of oneself, one, s right or position.
4. Definition Of Self Defance:
Black Law Dictionary:
“ The use of force to protect ones self, ones family or ones property from a real or threatened attack.
5. Kind Self Defence:
(i) Right of self defence of body.
(ii) Right of self defence of property.ss
6. Right Of Private Defance Against The Person Of Unsound Mind, Etc.
Under an act, which would otherwise be a certain offence, is not that ofence, by reason of the youth, the want of maturity of under standing, the unsoundness of mind or the intoxication of the person doing that act, or by reason of misconception on part of that person, every person has right of private defance against that act which he would have if the act were the offence.
7.Acts Against Which There Is No Right Of Private Defance U/S-99:
(i) There is no right of private defence against an act which dose not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done by a public servant acting in good faith under command of his office, though that act may not be strictly justifiable by law.
(ii)There is no right of private defence against an act which dose not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by the direction of the public servant acting in good faith under the color of his office through that direction may not be strictly justifiable by law.
(iii)There is no defence in cases in which there is time to recourse to the protection of public authorities.
(iv)There right of private defence is no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
8. When The Right Of Private Defance Of The Body Extends To Causing Death U/S 100:
It extends to voluntary causing of death of any other harm to the assailant, if the offence be any of the following description.
(i)Such as assault as reasonably causes the apprehension of death.
(ii)Such as assault as reasonably cases the apprehension of grievous hurt.
(iii)An assault to commit rape.
(iv)An assault with the intention of gratifying unnatural Lust.
(v)An assault with intention of kidnapping or abducting.
(vi)An assault for wrongful confinement under the circumstances which provide reasonable apprehension that recourse to readdress shall not be possible.
Case Law
2004 YLR LAH 2320(b)
It was held that sec 100 being subject to sec 99, and can not be read in isolation from 99 PPC.
9. Commencement And Continuance Of The Right Of Private Defence Of Body S.102:
The right of private defence of body commence as soon as a reasonable apprehension of danger to the body arises from an attempt or thereat to commit an offence though the offence, may not have been committed and it continues as long as such apprehension of danger to the body continues.
10.Condtions For Exercising Right Of Self Defence:
Following condition must be fulfilled in order to exercise the right of self defence.
(i)The accused must be free from fault in bringing about the encounter.
(ii)There must be present impending perial to life or great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(iii)There must be not safe or reasonable mode of escable by retreat.
(iv) There must have been a necessity for life taking.
11. Buden Of Proof:
The burdon of proving is on defence.
Case Law
2002 SCMR 1425
IT was held that when a specific plea of self defence is raised, the onus to prove the same lay upon the party claiming the same.
12.Confusion:
To conclude it can be said that, self defence is a best defence. The right of self defence is based on the law of necessity of self preservation. This right would arise only where danger to a person or property is imminent and would remain available as long as such danger exist.]]> Self-Defence
Q. What is right of private Defance? When it extends to causing death of another.(2000/s)(2004/s)
Q. what are Restriction imposed upon the use of force in self defence (2005/A)(2007/A)
Q. What are the restrictions imposed upon the use of force in self defence under P.P.C.(2005/A)(2006/A)(2002/S)
Q. What is right of private defence? What are limitation imposed on the use of force of this right. Explain fully.(2002/A)
1. Introduction:
Under Pakistan penal code every one has right to defend his property honour and himself.
Self defense is a fundamental right it is provided by every religion. Law, constitution and ethics. Right of self defense can defend also be exercised even by a stranger to defend the person or property of another. The right of private defence is restricted to not inflicting more harm than it is necessary to inflict for the purpose of defence.
2. Relevant Provisions:
Sec. 96, 97, 99, 100, 101, 102 P.P.C
3. Meaning Of Self Defence:
Concise Oxford Dictionary:
A defence of oneself, one, s right or position.
4. Definition Of Self Defance:
Black Law Dictionary:
“ The use of force to protect ones self, ones family or ones property from a real or threatened attack.
5. Kind Self Defence:
(i) Right of self defence of body.
(ii) Right of self defence of property.ss
6. Right Of Private Defance Against The Person Of Unsound Mind, Etc.
Under an act, which would otherwise be a certain offence, is not that ofence, by reason of the youth, the want of maturity of under standing, the unsoundness of mind or the intoxication of the person doing that act, or by reason of misconception on part of that person, every person has right of private defance against that act which he would have if the act were the offence.
7.Acts Against Which There Is No Right Of Private Defance U/S-99:
(i) There is no right of private defence against an act which dose not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done by a public servant acting in good faith under command of his office, though that act may not be strictly justifiable by law.
(ii)There is no right of private defence against an act which dose not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by the direction of the public servant acting in good faith under the color of his office through that direction may not be strictly justifiable by law.
(iii)There is no defence in cases in which there is time to recourse to the protection of public authorities.
(iv)There right of private defence is no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
8. When The Right Of Private Defance Of The Body Extends To Causing Death U/S 100:
It extends to voluntary causing of death of any other harm to the assailant, if the offence be any of the following description.
(i)Such as assault as reasonably causes the apprehension of death.
(ii)Such as assault as reasonably cases the apprehension of grievous hurt.
(iii)An assault to commit rape.
(iv)An assault with the intention of gratifying unnatural Lust.
(v)An assault with intention of kidnapping or abducting.
(vi)An assault for wrongful confinement under the circumstances which provide reasonable apprehension that recourse to readdress shall not be possible.
Case Law
2004 YLR LAH 2320(b)
It was held that sec 100 being subject to sec 99, and can not be read in isolation from 99 PPC.
9. Commencement And Continuance Of The Right Of Private Defence Of Body S.102:
The right of private defence of body commence as soon as a reasonable apprehension of danger to the body arises from an attempt or thereat to commit an offence though the offence, may not have been committed and it continues as long as such apprehension of danger to the body continues.
10.Condtions For Exercising Right Of Self Defence:
Following condition must be fulfilled in order to exercise the right of self defence.
(i)The accused must be free from fault in bringing about the encounter.
(ii)There must be present impending perial to life or great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(iii)There must be not safe or reasonable mode of escable by retreat.
(iv) There must have been a necessity for life taking.
11. Buden Of Proof:
The burdon of proving is on defence.
Case Law
2002 SCMR 1425
IT was held that when a specific plea of self defence is raised, the onus to prove the same lay upon the party claiming the same.
12.Confusion:
To conclude it can be said that, self defence is a best defence. The right of self defence is based on the law of necessity of self preservation. This right would arise only where danger to a person or property is imminent and would remain available as long as such danger exist.]]>