Updated: Thursday January 14, 2010/AlKhamis Muharram 29,

1431/Bruhaspathivara Pausa 24, 1931, at 07:00:50 PM

Course Contents:
Tort does mean everything, which in the eyes of law is wrong
and requires remedy, so it is also called remedial law. Tort is a
law of damages.
If someone commits crime against anybody, law-enforcing
agency arrests him and gives him punishment upon the proof of
crime, but what is remedy to victim? Where there is conflict there
is need of law. Law is a formula to decide something. Every
wrong has remedy. Where there is wrong there is remedy. Law is
a codified commonsense. Rights and duties make law, while offer
and acceptance form contract.
People who obey the laws are called social and who violate the
laws is called anti-social. Right is an interest that is recognized
and protected by law. Law becomes angry upon committing of
wrong or crime. Law came into force when the right of another is
violated.
Violation against state is called crime. Breach of contract and
violation of right of person involves remedy. Contract is a story
between two private parties.
Upon the committing of the wrong, remedy is determined by the
Court that may be unimaginable. In the age of non-civilization
there was self-help remedy on civil matters and private
vengeance upon criminal matters. This practice was abandoned
upon the process of civilization. In criminal law state is a party
and the case is tried between accused and state.
Damages are of two types, liquidated and un-
liquidated damages. Ubi jus ibi remedium – Where there is
wrong, there is remedy.
Definition – Salmond: Tort is a civil wrong, independent of
contract, and remedy in the form of un-liquidated damages. John
Locke: Crime is an ill bargain to the offender.
Expressed term part of the contract. – Implied term part of the
contract.
Principles upon which contract is moral infringe. When a single
person is affected, that is tort, and if society is affected that is
crime.
Crime Offence Wrong against State
Tort Wrong Offence against person
Tort is separate from contract. We have duty to pay respect of the
right of another.
Winfield: Tortuous liability arises from the breach of duty;
primarily fixed by law; this duty is towards persons generally;
and its breach is redress-able by an action of un-liquidated
damages.
Tort has three kinds: Intentional torts, torts of Negligence, and
torts of strict liability.
Some torts are actionable and some are not actionable. All the
torts, which are against the public and all the torts that are against
the person that are non-actionable and require something-extra
proof of damage. Trespassing is also a tort.
Define torts and distinguish it from crime and contract: In
contract damages are liquidated and in crime punishment is
given rather than damages. In tort damages are un-liquidated. S.
95 of PPC says acts causing slight harm are not crimes. Torts are
also known as trifles. De minumis non curat lex, small wrongs are
not torts. Maxim means saying, principles, famous, and used in
law sentences are called maxims. Where there is violation/wrong
there is remedy. Equity will not suffer a wrong to be without a
remedy.
Some agreements are not legal, i.e., conspiracy, dirty, sex, evil
things etc. There is not case on dirty cause.
Plaintiff has three choices, i.e., legal right, violation, and remedy.
Law is not to be taken in our own hands. PPC 99 and 82. Law is
story between two neighbors. Object of law is to put the people in
law. Law is made to control the people. In tort act is seen rather
than motive and malice. Where is continue series of negligence,
there is not tort.
Violation of legal right is called injury. Licensee is meeting
without business and Invitee is the business meeting.
Who cannot sue? Convict or felon, Bankrupt, and. Alien Enemy.
Normally torts are related to person, property, and defamation.
Forfeiture Act, 1870, CPC 83. Criminal Justice Act, 1948, now
property can not be forfeitures, Transportation of life,
imprisonment for life (imprisonment till death), is also prohibited.
Nulla peona sine lege (Nobody can be punished without law).
Necessity knows no laws. Court is the agency of law. Forfeiture
Act, 1970 was abolished with Criminal Justice Act, 1948. Crime +
Punishment = Innocence. 21 States have abolished the death
sentence in USA.
Husband and Wife: Courts were pronounced wife as husband.
Unmarried woman is called feme sole and married woman is
called feme covert. It was assumed that woman has been merged
into man and became the body of man, so she has lost her right to
sue against her husband.
Under The Married Women Act, 1882, S. 12, Women became the
master of their property and then under Law of Property Act,
1925, married woman can acquire, hold, and dispose of property
as she is unmarried.
Law Reform (Married Women and Tort Feasors) Act, 1935,
according to which it was decided that whoever will commit
wrong against each other, will be responsible and can sue and can
be sued. Latest development was made under Law Reform
(Husband and Wife) Act, 1962, husband and wife can sue each
other.
Corporation (legal fiction) does mean association of men who
make one. Object may be there so that punishment may be given.
Law is a caretaker of the interests of the people. This is a body of
people that incorporated according to law. Corporation is an
artificial person. Person is a subject of rights and duties, and we
are natural persons. Natural person has a blood, can be
imprisonment. False imprisonment means illegal detention.
Person become major at the age of 18 years, but Corporations
became major at once. Now Corporations can sue and can be sued
each other.
Vicarious Liability: When a person held responsible against the
wrongdoing of others, it is called vicarious liability. Company is
responsible of the wrongdoing of its employees within the course
of employment, because they were committed for the interest of
the Company and also Company is rich than of individual.
Servant is the person who draws the salary in order to obey the
orders. Relationship occurs Master and Servant. Servant is
defendant No. 1 while the Corporation or Company comes later.
Damages will be borne by the Company because she is rich.
Intra Vires means internal while Ultra Vires means external. A
Station-Master was checking the tickets of commuters of the rail
and he found one of them with horse. He had ticket for him but
not for his horse. A Station-Master arrested the owner of the
horse. Held Ultra Vires because he was not authorized to arrest
master because he had ticket for him. If any person who has ticket
for him and not for the luggage, only the luggage will be kept
despite the owner.
Trade Union: It is a legal association and can be made friendly for
the purpose of trade etc. Union was allowed to sue earlier. In 1901
House of Lords, held, that union could be sued in tort cases. The
Trade Dispute Act, 1906: Trade Union cannot be sued in tort
cases but may be sued in personal torts. The Trade Disputes and
Trade Unions Act, 1927, was passed, in which held, that if
government servant suppress/oppress, then tort action will lie on
him. Now a Trade Union can sue and can be sued. It shall have
perpetual secession and a common seal. U/s 14 of Industrial
Relations Ordinance, 1969, held, now a Trade Union is like a
legal entity for suit purposes. Now Trade Union can sue and be
sued.
Child or Minor: A child can be sued, and damages will be borne
by his parents. A child and person of unsound mind can sue for
tort by next friend, e.g., parents. Order 32, Rule 1 CPC.—Every
child can sue through next friend. A unborn child was not
allowed to sue. In Canada in 1930, a mother was injured while
she was pregnant, she claimed damages, but at birth of her child,
he was not allowed for suit. A child who was injured during in
womb, born in clugfeet, this birth was due to an accident of
mother, mother claimed damages, and after birth of child he
could claim damages. In 1976 law was passed. Child can sue after
his birth. Congenital Disabilities (Civil Liabilities) Act,
1976. The Fatal Accident Act, 1846. A child could recover the
damages of his died mother after his birth.
Alien Enemy: He is the person against country is at war. He can
not sue but upon case of defamation he can sue after getting
approval from the state department.
Insolvent: Law deprives him to sue in the Court of law.
Lunatics: Since he can not understand the matters of law so he is
deprived.
Who cannot be sued: Following are the persons who cannot be
sued:
The King (Crown): King cannot be sued because the King can do
no wrong. He establishes everything. He is foundation of the
justice. Once a time there was a war between king and people and
people won it. The Crown Proceeding Act, 1947. Now the size of
king and common person became equal. Size of king has been
brought down to the level of a common person. S. 2 of CPC, now
government can be sued. Now they can sue officers, but damages
will be borne by them personally. King can sue and be sued for
the torts and others wrongs committed by his servants (Vicarious
Liability).
The King will be liable for breach of statutory duty. Article 174 of
Pakistan Constitution, 1973, President is responsible. S. 9 of CPC
the Crown will not be liable for tort relating to a postal packet. S.
10 Wrongdoing by army caused during its army action etc. will
also be exempted. S. 40(1) Queen shall not be personally liable for
the torts committed.
Foreign Sovereign – Ruling Chief cannot be sued. They are
privileged class. If they have consent then they can be sued. S. 86
of the Code of Civil Procedure, Extra Territorial Jurisdiction:
Extradition. Article of 248 of Pakistan Constitution says that
Executives can be sued in civil matters. § 86 and 87–A to be
studied.
Ambassadors cannot be sued, Government Servants also.
Defences in torts: There are 15 different general defences in tort
that can be fit in all types of torts.
Definition: A defence is a shield to protect the defendant. There
is another type of defence that is called particular defence
including defamation and negligence. Particular defence cannot
be fit in other torts. The Pakistan Penal Code, 1860, from § 76 to
106 include general defence. Although they are concerned with
crimes but exceptionally they may be used in torts.
1. Volenti non fit injuria maxim applies where plaintiff gives
his consents to do certain thing. If he has given his consents to
enter in his property, then no tort will be constituted but if
defendant commits theft after getting permission to enter in
property, then it will constitute tort.
Events or games that involve risk do not constitute tort. There
is possibility of injury in boxing, car racing, foot ball, hockey,
cricket, horse racing, cycle race, while playing or watching, if
consents are free, then no tort commits. In a case of Smith – v –
Baker, Smith was an employee of Baker. He was engaged in
working of stone cutting where a crane swung heavy stones
over his head. He was drilling the rock face in the cutting. He
knew risk that heavy stone might fall as well as to his employer
Baker. There was no preventive warning against risk. Plaintiff
 injured when a stone fell down upon him. Where there is a risk
factor and due care is not taken, defendant is liable.
Maxim Leave and License is applied in property cases where
consents are free.
These maxims are not applied in the case of:
1. Consents are not free or under coercion.
2. Where there is negligence on the part of defendant.
3. Rescue operations or cases.
2. The Act of State: State is a corporation and artificial person.
It is a source of power. State acts through its agent or servant.
The servant’s act is the act of master’s act. A maxim is provided
in this regard Qui facit per alium facit per se means one who
gets acted through servant, supposed acted himself. An act of
state is an act that is done in exercise of sovereign power
against an alien. As per English law, one who is not the citizen
of UK is alien and in case of tort against them, they cannot sue
being alien. It is a pure matter of FORCE or TERRIRORISM. An
act of state includes:
1) Tort of state against alien, is act of state;
2) It is done by agent of government or servant; and
3) An act is authorized earlier by the government or if not
it is ratified later on spot.
Buron – v – Denmuan, some owned slaves were released by
the commander of Royal Navy, held, that no action will lie
because it was an act of state. Slave is not supposed a person. A
person is that who has rights and duties, so slaves are
considered commodity. There is difference in resident and
alien and different conduct is applied.
 There are three ingredients in this type of defence, e.g., it
should be against alien, it should be through the servant of the
state, and such act should be within the lawful authority of the
servants, if not it may be ratified later.
3. Judicial Acts: The Judicial Officers’ Protection Act, 1850,
says that no action lies against a judge for acts done or words
spoken in the exercise of his judicial functions. He is not
responsible for his words or actions even they are not in the
honest exercise of his judicial function. Object of this principle
is to provide an environment to judges so that they may work
fearlessly and independently. A remedy is provided in case of
judicial error.
A judge passes a decree against property occupant and sent
bailiff to get released the possession, no one can sue if some
damage is occurred on the part of his agent. If judge terms
someone thief, it is not a tort. If he awards imprisonment or
sentence of death, he is not liable because these are judicial
acts.
4. Quasi Judicial Acts: A person who exercise as quasi judicial
authority is also immune from civil action provided in the
theory of natural justice. Rule of natural justice includes,
proper notice to be served to the party, opportunity to be given
to the party of hearing to defend himself, and impartial and
judicial – always be fair and work in good faith.
If a person is expelled from a union or club after passing a fair
enquiry is not invalid and the Court will not interfere with
such a decision.
5. Executive Acts: Sometime police acts upon the orders of
commissioner for the dispersion of mob and to maintain the
law and order situation. During this course some people may
 injure which does not come under tort and are not sue-able.
These are called executive acts and there is protection
under The Judicial Officers’ Protection Act, 1850.
6. Parental Authority: Father and Mother have authority over
their children under the age of eighteen year and they can
punish them for their benefit and care. This is sufficient
defence.
7. Quasi-Parental Authority: Teachers also have authority over
their students. They can retain them against their will for the
education or ethical training purpose. They also may punish
them.
8. Acts of Necessity – Jus Necessitates: When a necessity
arises to escape/save someone’s life and no lawful or
reasonable sources are available and no exception is there,
steps can be taken which are necessary to do the right job. And
if during the course of escape someone’s gets injured cannot
claim tort because of the act of necessity. If a house gets fire
and need sprinkling of water to stop fire, and during this
exercise one is injured or water is over sprinkled to others
would not establish tort. It would not be called wrong because
necessity knows no laws. It was share necessity at that time. If
Muslims are fighting with Non-Muslims and some of them
deviate and join the Non-Muslims and fight against Muslims,
they must be killed. The Hazrat Umar passed this act. It would
not establish trespassing. Shakespeare said in his play that
necessity knows no law. In unavoidable circumstances, acts
may be done, which, in normal circumstances, considered
wrongdoing or offence. For example, a captain of vessel may
throw goods of commuters in sea in order to save vessel from
fire or lives of the commuters. Lives of the people are so
important than of goods. Once a time 90 plus slaves were
 thrown in sea to save the lives of persons, when ship was
overloaded. This act was done in USA. Then slaves were
supposed commodity and not person. During the World War,
a warehouse of oil was destroyed in order to prevent any
possible loss, later it was compensated.
Authority of Necessity: Government grants authority or to
make statute by legislature to authorize someone to accomplish
the job. There are two types of authorities, i.e., imperative
Authority and permissive or Conditional Authority.
In imperative authority unlimited powers are delegated under
the law. A Company who was responsible to spread railway
lines, was given authority of trespass of land of people. S. 56 of
CPC says that flights cannot be stopped on the ground of noise.
Pulling down a house which is in fire, to prevent spreading of
fire to other property, to throw cargo over boards, to save a
ship in danger during storm, forcible feeding of hunger striker
in jail are common examples.
9. Acts causing slight harms: Section 95 of the Pakistan Penal
Code declares that act which causes slight harm constitutes no
harm are not offence. Touching a person to other in rush,
pushing someone who is trespasser, cycling on footpath by a
child are slight harms. There should be some tolerance to live
in society. High noise of radio does not constitute tort while
continues noise may constitute wrongdoing.
10. Plaintiff a Wrongdoer: This situation arises when plaintiff
himself is contributory negligent in the case. Law for sea and
land was different. Plaintiff could not recover damages if he
was wrongdoer at land. In 1945, a law was passed that, on
land, plaintiff can recover damages even he is wrongdoer, after
 excluding the wrongdoing on his part. This law was also
available under The Maritime Convention Act, 1911, for sea.
11. Private Defence and Defence of Property: When someone
assaults someone or intends to inflict harm or injury someone,
he may take initiatives to prevent this possible harm or injury.
If someone enters in property without permission, he may
push him out. PPC 97 provides defence for the safety of
property and self-protection against trespasser.
12. Inevitable accidents:
13. Act of God:
14. Exercise of common rights:
15. Contributory negligence:
Discharge of Torts: How the case of tort is discharged.
Death: This is the case in which case is abolished before
proceedings begin in Court. If plaintiff dies, the case of tort ends.
In 13th Century torts started in England. Defendant frees upon
the death of plaintiff till 1934. A law was passed with the name
of The Law Reforms (Miscellaneous Provisions) Act, 1934. Now
case cannot be end even if plaintiff dies, but there are five
exceptions. They are as follows:
1. Defamation case ends upon death.
2. Seduction in which one party is married.
3. To convince another’s wife or husband to leave that
house and remain apart.
4. Adultery in which both parties are married.
5. Fornication in which both parties are unmarried.
False statement, which injures another’s reputation, is called
defamation. However to say murderer to murderer is not a
defamation. If the following people die then case closes.
Now new laws have been made and under these laws case
remain continue even after the death of plaintiff or defendant. In
Victorian age Railway line was installed/spread. People were
unaware that how it is crossed. During the crossing deaths were
occurred. Death was not tort but if they escaped and got injured
then they claimed damages against injury. Later death became
tort under the Fatal Accidents Act, 1846. This Act comes
in India in 1855. Another Act was passed named The Lord
Campbell Act, 1846. Now the death of plaintiff or defendant does
not end the case, but it continues by his heirs. Law is made when
mischief occurs. The Employers’ Liability Act, 1880 and The
Workmen’s Compensation Act, 1923. Under these laws death in
relation to tort cannot ends case.
1. Judgement: Once the case has decided in Court, either in
favour or contrary, it is discharged and cannot be proceeded
twice in the same Court, however an appeal can be made.
2. No Double Jeopardy: Once the accused has been inflicted in
a crime, he cannot be convicted again in the same offence.
3. Release: It is on the option of party whether she wants to
recover or not the debt. If one party consents for not to recover
the debt then case is discharged.
4. Accord and Satisfaction: If the case has been started in civil
Court and both parties decided to quit from Court proceedings
upon the decision that matter is agreed to discharge upon
accord and satisfaction, case will be discharged.
5. Waiver: Some people are privileged and are exempted in
legal proceedings. They may waive their privilege. If the one
part of the case is taken into consideration then it will be called
waiver and if full then release.
6. Statues of limitation: Limitation Act prescribes the period
within which action in tort may be filed. If an action is not
brought within the time prescribed, it becomes time-barred and
ultimately case discharges. Acquiescence: It is based on the
maxim that equity aids the vigilant and not the indolent. If the
limited time has gone then the case is discharged being time
barred. And if the time is gone in the absence of Limitation Act,
it is called laches.
Vicarious Liability: When a person held responsible against the
wrongdoing of others, it is called vicarious liability. Company is
responsible of the wrongdoing of its employees within the course
of employment, because they were committed for the interest of
the Company and also Company is rich than of individual.
Servant is the person who draws the salary in order to obey the
orders. Relationship occurs of Master and Servant. Servant is
defendant No. 1 while the Corporation or Company comes later.
Damages will be borne by the Company because she is rich.
Definition: Liability for the wrongful acts of others is called
vicarious liability.
Master is responsible of his servant by three ways. The liability of
a master is joint and several. Both are responsible in some cases.
There are three steps, which fallen/put masters into liability of
tort of his servant:
1. By Relationship: If the relationship of master and servant
exists, then it is sufficient to make master liable for the tort
committed by his servant. If there is no relationship, there is no
 liability/responsibility. Master is responsible being the
employer. If employee meet with an accident during the course
of employment following the Intra Vires (permitted acts), then
employer will be responsible.
2. Ratification: If an employer ratifies Ultra Vires on the
ground of his past loyalty, it will make employer/master
liable. Ratification means authorization of unauthorized acts of
servant. If employee works contrary to employer’s orders and
commits an Ultra Vires, then he himself will be liable and
employer will be free.
3. Abetment: It is help in wrongdoing. Both are responsible,
i.e., employee and employer. The liability is joint, as well as
several.
Contract of service is the agreement in which an employee or
servant agrees to work under control of employer by orders and
he receives salary against the work done. It creates the
relationship of master and servant.
Contract for service is an agreement in which a job is assigned to
a party who is independent and master and servant relationship
does not arises.
Who is servant at law: There are three recognitions, which
determine the status of a servant. These must be found
collectively:
1. One who works for his master for money,
2. Servant must work under order/instruction of his master,
and
3. He should be under control of his master.
A master is liable for all the torts of his servant on the following
principles:
1. A servant’s act (tort) is master’s act is based on maxim Qui
facit per alium facit per se. He, who tells others to do, works
himself. It is to blow hot and cold. The rule of approbation and
reprobated is applied here.
2. Deep pocket theory. He is rich man. Also he is called
Respondent Superior. He must be responsible because he is
rich.
3. The incompetence of a servant is master’s liability. Why he
has selected such person who is unskilled? So master is liable.
A petrol supply company had hired a driver who was habitual
smoker. While delivery of the petrol he begins the smoking which
got fire. Besides closing the supply of petrol and removing the
cigarette, he got run the truck from that place but a line of petrol
got fire and truck met with fire and a home badly affected with
this incident. They claimed damages. Company refused to pay
damages stated that we had not advised to smoke the driver and
responsibility lies to driver. Held this the responsibility of the
employer who hires him.
There are seven stages where master is liable for the tort of his
servant. These are as follows:
1. Carelessness of servant: If the servant commits tort during
the course of employment, due to his carelessness, master will
be vicariously liable. In a case master was ordered to his
servant to dispose of some rubbish. He put it in street that
touched to the wall of other’s property. Since this action was
done carelessness, but by the orders of the master, held master
is liable.
 In an another case death was occurred due to the careless
driving, held master is liable for damages.
2. Mistake of servant: The master is also liable for the tort of
his servant committed mistakenly in the performance of duties
and thereby caused an injury or damage. During the
mobilization of sugar a child took some sugar, and driver of
the vehicle gave him slap, held master of the servant is liable.
3. Willful wrong of servant: This is another way by which a
servant may make his master liable by committing willful
wrong. It is enough that act was committed in the course of
employment. This rule is applied in all cases even they are
forbidden and clear-cut violation of the employer’s
instructions. In a case driver was not allowed to run his bus
speedily to carry the passengers. He not only driven the bus
speedy but obstructed the plaintiff’s bus which caused
damage. This action was for the promotion of defendant’s
business.
4. Fraud of servant: If a servant commits fraud during the
course of employment without permission and knowledge of
master, even than master is liable. In a case a woman came to
clerk of Building Society for investment of her income. He
cleverly obtained the money and run away. Held master is
liable, whether or not the clerk had action for his own purpose
or for his employer.
5. Theft by servant: In theft case of servant, master is also
liable.
6. Criminal act of servant: It also makes master responsible
even it is committed after the working hours.
7. Negligence: A porter negligently put some people from
right boogie to wrong one that caused injury to them. Held
Railway is responsible.
Difference between Crime and Tort: It is very difficult to draw a
clear-cut distinction between a crime and a tort. A tort today may
be a crime tomorrow and vice versa. Tort is a private wrong or
infringement of a civil right while public wrongs are violations of
rights.
If the offence is serious, it maybe treated as crime, and if it is not,
it may be treated as tort.
Definition of Crime: Crime is an illegal act or omission
prohibited by and punishable at law, and for which a special
procedure is provided at law to punish the offender.
Definition of Tort: Tortuous liability arises from the breach of a
duty primarily fixed by law; this duty is towards persons
generally and its breach is redressible by an action of un-
liquidated damages.
Judicial Decisions: Tort involves a civil remedy or damages
while punishments are imposed in crimes.
Case Proceedings: Tortuous or civil proceedings are started in
civil Court purpose of which is enforcement of certain rights
claimed by the plaintiff against the defendant. Examples of civil
proceedings are an action for restoration of property, recovery of
damages, etc. Proceedings of crimes are started in criminal Court
for the punishment of offence.
It is possible that torts may give rise to civil and criminal
proceedings, i.e., assault, defamation, theft, and malicious injury
to property. In these cases both proceedings are concurrent
proceedings. The wrongdoer may be punished by imprisonment
or ordered to pay compensation to the injured party.
Magnitude of Wrong: Civil liability is measured by the
magnitude of the wrong done while the measuring the criminal
liability we take into consideration the motives, intention,
character of the offender, and the magnitude of the offence.
Nature of Wrong: Tort is a breach of duty primarily fixed by law
which duty is towards persons generally while crime is the
commission of prohibited act with ill will or guilty mind.
Nature of Decisions: Punishments are awarded for the purpose
of deterrence in crimes while remedy in term of cash compensates
the victim. In other words chief object of punishment is
deterrence while remedy in the form of damages is imposed to
take measures for prevention of violation of private rights.
Elements of Wrongs: Mens rea is required to constitute the crime
along-with actus reus while only action is sufficient to constitute
tort and ill will is no more necessary. One, who trespasses
another’s land or body, must have to pay damages.
Crime does not complete until or unless actus reus takes place.
Just mens rea is insufficient to constitute the crime while tort may
occur without injury, i.e., simply trespass to other’s property is a
tort without injury. Here maxim “injuria sine demnum” applies.
Compound-ability of Wrongs: Tort is compound-able by the
private party and state cannot interfere or compel for the
withdrawal of case because crimes are against the state and not
compound-able being public wrongs.
Parties in Cases: Both parties are private or common persons in
tort as plaintiff and defendant while state is a party being victim
in criminal proceedings and other one is accused.
Attempt in Wrongs: An attempt to commit a crime can itself be
an offence while attempt is not considerable to constitute tort.
Commencement of Wrongs: Crime requires preparation while
tort can be committed without it.
Defence as Innocent Actions: Innocent action in crime may be a
defence in some cases but tort does not recognize innocence.
Age Limit in Liability: Child under the age of 7 year is regarded
by law as “doli incapax” incapable of having mens rea while tort
may takes place by an innocent child and he may be sued through
his next friend, i.e., parents or guardian.
Defence of Insanity: Insanity is a good defence in crime but not
in tort. Provocation or instigation or temptation is defence in
crime but not in tort.
Intention of Wrongs: “Crime is an unlawful act or default which
is an offence against the public and renders the person guilty of
the act or default liable to legal punishment. While a crime is
often also an injury to private person, who has a remedy in a civil
action, it is an act or default contrary to the order, peace, and
well-being of society that a crime is punishable by the state.”
Action under mistake is not a crime. For example, a policeman
goes to arrest A, but actually he arrests B, thinking to be A. since
he has not guilty mind so he is not responsible, while mistake is
not considered in tort at all.
Unborn Children’s Liability: Unborn child can sue after he is
born in civil cases but there is no legality of unborn child in crime.
Waiver: Criminal law does not allow waiver in case where
privilege class has been exempted from liability while in tort
waiver can be used.
Codes applicability: Criminal Procedure Code is applied in
criminal cases while Civil Procedure Code is applicable in civil or
tort cases.
Remedies in Tort: Each tort that harms slight is ignore-able.
There is not benefit to contest if it causes slight harm and these
are not taken as crime. Trifles are not torts. S. 95 of PPC says, “Act
causing slight harm is not crime.” If someone touches you
without consents, it is battery, but is must be tolerated. If tort is
serious then we will go to Court for recovery of damages. There
are two types of remedies, i.e., Judicial (within Court and Extra-
Judicial (outside Court) remedies.
What remedy is available in Extra-Judicial cases:
1. Damages can be claimed if loss is occurred.
2. Goods snatched can be recaptured.
3. Trespasser can be expelled.
4. Trespasser may be stopped.
Judicial Remedies:
1. Damages can be recovered.
2. Injunctions or stay orders may be obtained.
3. Recovery of property which is illegally occupied or property
restitution.
§ 8 and 9 of Specific Relief Act deal with immovable property
while § 10 to 11 deals with moveable property.
There are two types of injunctions, i.e., temporary or
interlocutory and permanent or perpetual injunction. There are
two types of Court orders, i.e., mandatory injunction in which
something is allowed to do and other one is probationary
injunction in which something is prohibited.
There is another type of injunction that is given before happening
of non-permissible action. A person may be doing his work
diligently but seems to be wrong in future. An interim
injunction can be issued against his future ill will.
Private injunctions are issued at once while government
injunctions are given after serving a notice to government and
hearing the government cause.
Status of a person is very important in the cases of defamation.
Damages vary person to person. Defamation of Prime Minister or
Landlord is greater than of the defamation of a poor man or
beggar.
There are two types of damages, i.e., general and
special. General damages are those, which Court determines to
be natural and probable consequences of the defendant’s act.
These damages are not to be proved by evidence. A particular
statement cannot be produced as to how much loss is
occurred. Special damages are those in which Court does not
presume. They are claimed specially while pleadings. Evidence is
produced at the time of trial. A particular statement is provided
in contrast to general damages. It includes actual loss of plaintiff,
loss of earnings, legal expenses, loss of pension right, reduction of
prospects of marriage etc.
Besides the broad classification of general and special damages,
damages are of four kinds described as follows:
1. Contemptuous or ignominious damages: These damages
are awarded in defamation cases where social status is
negligible particularly poor person’s status. When the Court
form a very low opinion of plaintiff’s legal claim, or case
should not brings to Court of law, the Court awards trifling
 amount such as half rupee. Maxim ubi jus ibi remidium applies
here.
2. Normal damages: Where plaintiff’s legal right violates but
he suffers from no loss. Here maxim injuria sine
demnum applies and nominal or small amount of damages is
awarded. If A trespasses in B’s property but no damage is
occurred and A brings the tort case in Court, since no loss is
happened, so Court will award nominal damages because legal
right of A is violated. In the case of Ashby – v – White, plaintiff
was legally qualified voter. Defendant refused willfully,
maliciously, and fraudulently to cast him vote. Legal right was
infringed but there was no actual loss because candidate was
elected in election. In another case of Constantine – v –
Imperial Hotel, plaintiff was refused to allot accommodation
in hotel. Plaintiff got accommodation in other hotel. He
received damages, which were very nominal.
3. Compensatory or substantial damages: In these damages
actual amount of loss or repair can be awarded. All the
expenses, which are incurred on the restitution of property, are
recovered.
4. Punitive or vindictive or exemplary damages: These
damages are awarded to deter the action of defendant. This is
punishment to defendant. These damages are awarded in case
where statute allows, oppressive cases, and cases in which
illegal profit is expected. If judge irritates from the arguments
and shouting of defendant then he imposes damages greater
than actual. Suppose if house arson damages are Rs. 10,000/-,
he will impose Rs. 5,000/- extra damages. There are
circumstances which help in the mitigation (to less) or
aggravation (to increase) of damages. If government servant
commits tort, aggravated damages will be imposed and if
 behavior of defendant is bad, then also aggravated damages
are imposed. The most important principle in tort is that law or
Court looks to the proximate or immediate cause and not the
remote cause. You must request and not cringe.
Trespass to the person: If there is direct interference with the
person’s body, is called trespass to the person and if the
interference is indirect then it constitutes nuisance. Someone
attacks to another with stick or bullet and there is apprehension
that is trespass to the person. Trespass can be committed with
land, the person, and goods. Trespass is a direct action.
Corporation is also a person but artificial. Injury to the person has
four kinds: 1. Assault, 2. Battery, 3. False Imprisonment, and 4.
Mayhem[1] (Maim).
1. Assault is an act of the defendant, which cause to the
plaintiff reasonable apprehension of infliction of battery on him
by the defendant.
The essential requirements of assault are:
1. There should be some preparation of use of force.
2. There should be reasonable apprehension of the use of
force.
3. There should be ability of the defendant to carry out the
threat.
4. This act is of present. Future threat is not assault.
Use of empty pistol may constitute assault if person threatens.
Infliction in drama is not assault. Murder is result of battery.
Assault is tort, threat without touch while battery is touch, thus
crime.
Defences in assault:
1. Self defence.
2. Property’s defence.
3. Parental and quasi-parental authority.
4. Volenti non fit injuria.
5. Lawful authority.
6. Inevitable accidents.
7. Act of God.
8. Act of State.
2. False imprisonment means the infliction of bodily restraint,
which is not expressively or implied authorized by the law. It
has two ingredients, i.e., it is unauthorized by law and
complete restraint of liberty.
In the case of Bird – v – Jones, the Jones wrongfully enclosed a
part of public way on bridge. They put seats on bridge to watch
boat race. Bird was insisted to go from other side. He sued in
Court and held there was not complete restraint because other
way was available. If one person is detained in a room where a
place is available and detainee knows it, it does not constitute
false imprisonment, but if there is a window to escape, but
there is sea side and detainee cannot escape, it constitute false
imprisonment.
Wardale agreed to work in mine and was taken down there
at 09:00 a.m., later he changed his mind to stay there and wanted
to come out. The owner of mines held him there upto 01:30
p.m. He sued for false imprisonment, the Court decided against
him.
Interrogation for the purpose of enquiry is no false imprisonment.
Trespass to land or immovable property: One who does not get
permission before entering in house or property is called
trespasser or tortfeasor. It is interference without consents. It also
defines as unjustifiable or unauthorized interference with the
possession of the land. Some types of tort are as actionable per se,
such as libel or all types of trespass. It does not require any
special proof of damage. Trespass may be committed either by
defendant himself or by some tangible object such as throwing
stones on the land of another or allowing cattle to stay upon the
land.
Tort of fraud, conspiracy, slander, malice, waste of land,
negligence, and nuisance etc. require some special proof of
damage, in the Court of law.
Driving a nail or putting a ladder on others’ wall is trespass.
Everyone has to live within his limits with liberty.
How trespass is unjustifiable? It is the essential element for the
tort of trespass to land. Interference with the possession of land
must be unjustifiable under law. Slightest interference with the
land of another will amount to trespass if no justified by law.
Placing a foot on others’ land or throwing stone are trespass.
Entry with permission but remaining there is also trespassing.
Law is watchdog of rights of people.
Continuos wrong is a sort of tort, which goes continue. If a pit is
digs and someone is fallen into it, it amounts tort and if again
someone is fallen, it again amounts tort. Mental condition is not
taken into consideration in tort.
A ship, full of oil came to shallow water and anchored. Oil spills
to land of another person, who claimed trespass to land.
Interference under necessity does not amount trespass.
How trespass commits? There are three ways to commit trespass,
i.e., Malfeasance, Misfeasance, and Nonfeasance. One who
commits tort is called tortfeasor.
1. Malfeasance is there where is serious tort occurred, e.g.,
giving a blow or house arson.
2. Misfeasance is the act of unskilled person. Teacher should
do, as he should be. Negligence constitutes this tort.
3. Nonfeasance means where there is no answer of question or
appeal.
Trespass ab initio: When entry, authority, or licence is given to
anyone by the law, and he does the abuse it, he shall be a
trespasser ab initio.
Who can sue? A person who is possessor of land even as tenant,
occupant, having right of possession can sue.
Remedies available with plaintiff: Following remedies are
available to plaintiff.
1. Reentry: If trespasser gets out the occupier he can re-enter to
his property even by force.
2. Action for ejection: If anybody comes without permission to
the property can be ejected forcefully.
3. Damages: Plaintiff can claim damages against trespasser.
Defences in trespassing:
1. Volenti non fit injuria: Where there are consents of plaintiff,
there is not tort. In the match of hockey or boxing, the natural
consequences of injury, does not constitute tort.
2. Lawful act: Detention and interrogation by policeman to
remove his suspect is not a trespass. If he comes with search
warrant in property is not a trespass.
3. Self-defence: One, who enters in other’s property in result
of his self-defence, cannot be treated as trespasser.
4. Victory in Court: If he comes in property after winning of
case in Court is not trespasser.
5. Retaking of goods: One who has taken the goods of
defendant cannot maintain the suit of trespassing. He can take
his goods by entering in other’s property without his consent.
6. Abatement in nuisance: One, who abates the nuisance and
touch the property of other, cannot be regarded as trespasser.
7. Easement: One who gets the rights of easement after
completion of the period of twenty years, cannot be treated as
trespasser.
Trespass to goods defined as “consists in committing without
lawful justification any act of direct physical interference with a
good in the possession of another person.”
It is of three types, i.e., replevin[2], detinue[3], and trover[4] or
conversation or theft, as per Pakistan Penal Code (PPC) 378.
1. Replevin is a taking of goods un-authorized or without
consents, secretly. Removal of goods from carts. Detention of
goods upon default of payment. Court may ask for return of
goods.
2. Detinue is “a claim lies at the suit of a person who has an
immediate right to the possession of the goods against a person
who is in actual possession of them, and who, upon proper
demand, fails or refuses to deliver them up without lawful
excuse.” Legal retention but retention without consent is
detnue. Detainee is regarded as bailee. Remedy in detinue is to
redeliver the goods or must pay compensation.
3. Trover or conversation or theft: The term conversation is
used as “any act in relation to the goods of a person, which
constitutes as unjustifiable denial of his title to them.” It is a
willful interference, without justification, with any goods in a
manner inconsistent with the right of another, whereby that
other person is deprived of use and possession of it. Goods
belonging to other cannot be sold. Damages must be paid.
A VCR is taken to house for checking and at the time of revert
its reversion is refused. Its remedy is only compensation. A
thing is taken and dropped into fire or canal, amounts trover.
Legal removal of goods but sale without consents is trover or
conversion. This also involves unauthorized use or consumption
for own or other is trover. A wrongful disposal of is also termed
as trover.
Reversionary is a person who has bailed goods to a person, who
is responsible, to revert the goods. If these goods are to be
transferred to third person, the third person will be called as
remainder. Both reversionary and remainder can sue the person
who is guilty.
Defences in trespass to goods: Following defences are available
in trespass:
1. Recapture: If the goods of plaintiff are captured unlawfully
by defendant, he can recapture them even forcibly.
2. Reentry: If the owner is expelled from his property forcibly
and without lawful authority, can reenter in his property by
expelling even forcibly being the owner.
3. Self-defence: If the goods of someone are trespassed or
damaged while the act of self-defence cannot constitute
trespass to goods.
4. Lawful act or licence: If any person or policeman with
lawful authority enters in a property and takes some goods in
suspect to helpful in case proceeding is not trespass to goods.
5. Act of necessity: If some goods are broken being the act of
necessity while defending himself or touched during passing in
a market is not a trespass to goods.
6. Bailee is owner: If A sends some goods to B, or B takes some
goods from A, either lawfully or unlawfully, he is the owner of
the goods and goods cannot be snatched from B claiming the
goods of A. One who have the goods in his hand, is considered
the owner of the goods. So bailement is a good defence.
Nuisance is anything, which injures health or offending to senses
and which causes injury or damage or annoyance or discomfort
to other. Wrongful act and damages or annoyance or discomfort
must be there. Winfield defines it as “unlawful interference with a
person’s use or enjoyment of land, or of some rights over or in
connection with it.” Interference and damages or annoyance must
be there to constitute nuisance and this act should be continued.
Noise, smell, pollution of air or water is the instances which are
most usual but there are many other. Excessive tolling of church
bell or escape of fumes which kills vegetation and cattle are
nuisances. The whole law on the subject represents a balancing of
conflicting interests. Some noise, smell, vibration are must be
tolerated in any modern town, otherwise modern life will become
impossible.
There is a maxim “sick utere tuo ut alienam non laedas” means
so use your property as no to injure your neighbors. Direct hit,
i.e., setting bullet, blow, or slap constitute trespass and indirect
hit is flow of water towards other’s property, roots of tree so that
foundation of others property weakens or imbalances are indirect
acts so causes nuisance.
Kinds of nuisances: There are three kinds of nuisance, i.e.,
statutory, public, and private nuisance.
1. Statutory nuisance is the nuisance for which statute is
provided in law to mitigate it. For example air, noises, and
water pollution. Statutes are provided to mitigate the nuisance.
2. “Public nuisance or common nuisance includes which
diverse activities as carrying on an offensive trade, keeping a
disorderly house, selling food injurious to health, obstructing
public highways, and throwing fireworks about in the street.”
It is a crime u/s 268 of Pakistan Penal Code (PPC). It
constitutes reasonable discomfort and inconvenience of public
in general or a class of the people. Public nuisance is an act of
illegal omission, which causes any common injury, damage or
annoyance to the public or to the people in general who dwell
or occupy properties in the vicinity or which must necessarily
cause injury, obstruction, damage, or annoyance to persons
who may have occasion to use any public right. If some
particular or special damage is proved then it becomes
actionable and gives rise civil action. A man falls down in a
trench dug left open and unfenced. No light was placed as
security measures. His wrist and other portion of body
received injury. Held negligence on the part of defendant and
liable to pay damages. Appeal in High Court dismissed and
upheld the decision of the trial Court.
3. Private nuisance is “unlawful interference with a person’s
use or enjoyment of land or of some right over or in connection
with it.” It is also continuous process. Noises, smells, pollution
of air and water are the instances. Injury to property and
continuous unlawful interference must be there to constitute
private nuisance. Give and take and live and let live must be
followed to avoid private nuisance.
If the nuisance is tolerable or slight, it must be tolerated.
Sometime mood of a person becomes off due to tiredness or extra
ordinary workload; this reasonable nuisance must be avoided,
being normal thing. To constitute the wrong of nuisance, it
should be unreasonable, continuous, and creating injury or harm.
Dead body of horse laying on ground, vibration or noises of
machinery, are nuisances. If it amounts reasonable, no amounts
nuisance. Sale of perished or staled food items, false or
misleading trade descriptions, injury of a child due to negligence
or carelessness of parents, renting out of house used in prohibited
trade items are nuisances. Neighbor is the house or person who
affects or may affect each other. If a person or his anything affects
from far away, he becomes neighbor at law. If plaintiff proves
damage, defendant is liable. In a case a horse was died while
taking/grazing fodder. It was explored, later on, that the pieces of
iron fence of neighbor was escaped and mixed up in fodder
which gone into the mouth of horse, resulted death of horse.
Negligence: In the older ages direct hit to body or property was
rendered a person guilty of trespass while indirect hit was
considered as negligence. For example, direct blowing was
considered as trespass and if blow is given to third person other
than of person in target was called negligence.
It is now defined as “negligence is the omission to something
which a reasonable man guided upon those considerations which
ordinarily regulate human affairs, would do or doing something
which a prudent or reasonable man would not do.”
In strict analysis, negligence means more than heedless or careless
conduct, whether in omission or commission; it properly
connotes the complex concept of duty, breach and damage
thereby suffered by the person to whom the duty was owing.
Negligence is a act or omission in relation to reasonable man, i.e.,
if a reasonable man do something, negligent omit that thing and if
reasonable man omit to do certain act, negligent man will act that
thing. Negligence is opposite of care-ness and injures to neighbor.
A reasonable man is that who looks fit in his field and takes
proper care. Carelessness is contrary to reasonable man.
Negligence is actually a state of mind in which due care and
attention is disregarded and it is dealt by penal code. If
reasonable man has to do something, he not to do or omits and if
reasonable man has not to do, he has to do that act. This is called
negligence. Putting the ladder on slippery floor or cutting the
same branch of tree on which sitting is negligence.
If injury is desired then crime is committed and if injury is not
desired then negligence is occurred. Only careful attention is
required and not special to constitute reasonableness. If metallic
wire is not property insulated that render it to negligence.
Since 1952, negligence is diverted toward intention from indirect
hit. Unintentional wrongs are negligence while intentional
commission is regarded as crime. Following are the ingredients of
negligence.
a) Duty to take care: Australian advocate, who became
judge in England, derived this principle from Bible. Tort is a
story of neighbors. Bible says take care of your neighbors.
Do not distress them. When a person comes proximate to
other is called neighbor and when he goes away, then he is
disregarded as neighbor.
So proximity makes a person neighbor and finally renders in
responsibility. Neighbors are duty bound persons to take
care of others. If I am careful then no loss will occur. Remote
geographical proximity becomes, in the eyes of law, legal
proximity, if loss occurs.
 Third person who is not part of the contract may claim
damages, if some loss or injury occurs toward him. In a case
of Donoghue – v – Stevenson, a retailer of beer house sold
ginger beer to a lady. She offered beer to her guest. She
consumed the beer which was included the decomposed
remains of a snail. As the bottle was of dark color, so the
foreign elements could not be seen during inspection.
Plaintiff sued the manufacturer for the negligence claiming
that she became ill after consuming the contents of bottle.
Question arose whether defendant was under obligation to
take care towards to plaintiff. He held responsible even she
was not part of the contract.
b) Duty of care must be owed to the plaintiff: It is not
sufficient that defendant has taken care but this care must be
toward plaintiff. In an American case, two servants of
defendant were trying to board a passenger in train who
was carrying a parcel-containing firework. Due to
negligence of servants it fell down and shocks knocked over
some scale about 25 feet away striking and injured the
plaintiff. Held even the conduct of defendant was wrong in
relation to passenger, but it was not wrong in relation to the
plaintiff standing far away. In relation to her, negligence was
not established at all.
Case Bourhill – v – Young, a lady carrying fish basket was
being helped by a driver of tram to put basket on her back, a
motorcyclist after passing the tram, collided with a car and
died. She could not see either deceased or accident due to
the tram standing between the deceased and her. She simply
heard about the collision. After the removal of dead body
she went to the place of accident and saw some blood left
there on the road. Consequently she suffered from nervous
shock and gave birth of still-born child of eight month. She
 sued and held motorcyclist being no responsible. Also held
that duty to take care toward plaintiff was not anticipate-
able in this case. Such duty arises when results are
anticipated or can be anticipated.
c) Breach of duty to take care: This is the most important
element of the negligence that duty to take care is breached.
Onus to prove negligence lies to plaintiff. This is a duty of
banker to check signature on cheque before the cheque is en-
cashed, otherwise bank will be responsible.
d) Consequent damage to the plaintiff: This is the last
essential element of negligence that damage caused to
plaintiff was the result of the breach of duty and not too
remote.
Res ipsa loquitur: It means thing speaks itself. This maxim is
applied where plaintiff is totally unable to state facts, which
caused him injury. There are many cases in which accidents speak
their story.
The maxim applies whenever it is so improbable that such an
accident would have happened without the negligence of the
defendant, that a reasonable jury could find without further
evidence that it was so caused. In case of Byrne – v – Boadle, a
barrel of flour rolled out of an open doorway on the upper floor
of the defendant’s warehouse and fell upon the plaintiff, a passer-
by in the street below. It was held that this of itself was sufficient
evidence of negligence to go to jury. The maxim throws on to the
defendant the burden of disproving negligence.
Defence of Act of God: In the case of Nicholes – v – Marsland,
defendant made an artificial lake which was overloaded while
torrential rain and caused damage to plaintiff’s field. Held that
water which was escaped from lake was due to rain and was an
act of God and beyond human control.
Inevitable accident: These are the accidents, which cannot be
foreseen or perceived and reasonable care cannot be taken to
avoid them. They are proximate to defendant and he is free from
burden.
Contributory negligence was defence earlier but now it is not
defence at all.
Maxim res ipsa loquitur is not applied:
1. If more than one stories arise;
2. If thing or object was not in possession;
3. If defect was known to plaintiff. It is clear case of negligence;
4. If story is stated by plaintiff and defendant.
Defamation is the “publication of a statement which tends to
lower a person in the estimation of right-thinking members of
society generally; or which tends to make them shun or avoid that
person.”
Kinds of defamation: According to English Law, defamation is of
two kinds: Libel and Slander. “A libel consists of a defamatory
statement or representation in permanent form; if a defamatory
meaning is conveyed by spoken words or gestures it slanders.”
Slander is converted into libel when spoken words are written on
paper.
How libel is committed: Printing, mark or sign exposed to view,
picture, statute, waxwork etc. Libel refers to eye.
How slander is committed: Defamation in the manual language
of the deaf and dumb, and mimicry and gesticulation generally. It
refers to ear.
Distinction between libel and slander: Following are some
distinctions between libel and slander:
1. Action: Libel in all cases is actionable per se while special
damage is to be proved in slander to constitute slander.
2. Liability: Libel is both tort and crime whereas slander is
only tort or civil wrong.
3. Mode of defamation: Writing or telecasting or broadcasting
commits libel whereas slander is verbal statement.
4. Magnitude: Libel is greater than of slander in magnitude.
5. Publication: Slander becomes defamation when it is known
by third person whereas libel does not need publication.
6. Time period: Libel is permanent defamation whereas
slander is temporary defamation.
Exceptions in slander: There are some exceptions, which make
slander actionable per se. They are as follows:
a) Imputation of a criminal offence punishable with
imprisonment.
b) Imputation of dangerous disease which prevent other
person to associate plaintiff.
c) Imputation of unfitness or disqualification or
incompetence in any office, profession, trade, or business.
d) Imputation of unchastely to any woman or girl.
 e) Fifth exemption has been repealed that is imputation
of caste which lowers position of plaintiff.
What is theory of freedom? Cicero, a Roman Jurist, says, “we are
the slaves of law so that we may be able to be free.”
Remedies: Fish is animal of water and remains free in water. If
she come out from water, she losses her freedom at that moment.
Everyone is free to drive vehicle, but with brakes.
1. Stay order can be obtained to stop the person making
defamation. Cartoon or caricature and story in newspaper may
damage repute of someone. Stay order stops its publication.
2. Must be stopped: Defamation either libel or slander must be
stopped to continue.
3. Damages may be received against the defamation.
Innuendo is kind of defamation in which words used are not
defamatory in its general meaning but they have hidden meaning
of defamation. There may be a statement containing an allegation,
which apparently is no imputation, may be proved by plaintiff to
have in imputation under the special circumstances of the case.
As per Winfield, “Where, however, the words are not defamatory
in their natural and ordinary meaning, or where the plaintiff
wishes to rely upon an additional meaning in which they were
understood by persons having knowledge of particular facts, then
an innuendo is required. Defamation does not take place between
husband and wife unless third person is involved.
Defences: There are three defences, i.e., justification or truth, fair
comments, and privilege.
1. Justification or truth: Action cannot be taken if the person
responsible of defamation proves justification or establishes
 that it is true or substantially true. If contrary is not proved by
defendant, Court will award heavier damages against him.
Substantial truth is enough to prove justification. In a case
of Alexander – v – N. E. Rly, the plaintiff was convicted for
travelling without ticket in a train and was fined one pound or
imprisonment of two weeks in default of payment. Defendant
published one pound fine and three weeks imprisonment in
default of payment. Held the statement was substantially true.
2. Fair comments: For the purpose of public interest fair
comment is good defence. If a person says to another that do
not give him your house on rent to X being defaulter is fair
comment and not actionable. X should be proved defaulter.
Fair comments must contain public interest, an expression of
opinion and not an assertion, must fair and must not be
malicious.
3. Privilege: It is a statement which is between the two parties
which are integral part of each other like husband and wife,
judge and parties etc. There are two types of privilege, i.e.,
absolute privilege and qualified privilege. In absolute privilege
any thing can be said even malice but in qualified privilege
statement should not contain malice.
a) Judicial privilege: Dialogues between parties,
advocates, judges are not actionable being defamation.
They have complete privilege and action can not be taken
against the statements, which are given in the proceedings
of cases.
b) Parliamentary privilege: Parliamentary members
have also privilege. Statements or dialogues exchanged in
parliament are not actionable and all the parliamentary
members have privilege to exchange any sort of statement.
 c) Official privilege: Defamatory statement of one officer
to other during the course of employment is complete
defence.
d) Husband and wife: Exchange of statements between
husband and wife is not defamation unless third party is
involved.
Strict Liability is like nuisance with slight difference. We
consume goods in two ways out of which in one defendant is
liable if commits negligence but in second way defendant is liable
even if he is not negligent or he has not fault. In strict liability
defendant may be held responsible for the consequences or harm
caused to the plaintiff although the defendant neither intends the
results not is guilty of negligence. This rule was first propounded
in Rylands – v – Fletcher, 1868, case. All the things, which we use
in our routine life, can be termed natural use and all the things
use of, which is not common, are called non-natural use. We use
all these things in our home or land. We bring goat in home,
which is natural or common use. No one can take elephant in his
home, if so, it will be termed as non-natural user of land or home.
Little fire in home is enough for household. Petrol in huge
quantity is exceptional case. Plants are common things but
poisonous trees are exceptional use. They are natural or non-
natural users of their land or house.
Driving a car is natural use, if driven at high speed, will create
nuisance or negligence. Brining goat in home is natural use, if he
escapes and causes injury will be liable under nuisance. If tiger is
taken into home, which is non-natural use of home, and if he
escapes and causes injury will be liable under strict liability.
All the non-natural things brought at home must be collected and
kept under control and if they escape, defendant will be liable.
Smoke creates nuisance while petrol tank may create strict
liability. In Rylands – v – Fletcher case, defendant employed
independent contractors to construct a water reservoir on his land
for the supply of water to his mill. Contractors made a reservoir
without taking due care and committed negligence. When water
was filled in the tank, water leaked through the old shafts and
flooded the mines of the plaintiff. In this case an independent
contractor was negligent and defendant was not negligent. But
upon sue of plaintiff, defendant held liable.
Essentialities of strict liability: Following are three pre-requisites
of this rule:
1. Bringing and keeping on land anything likely to do
mischief, if escape: Defendant must have brought anything on
his land, kept there, which can be escaped. This rule is applied
on gases, oil, electricity, vibration etc.
2. Escape: Dangerous thing must be escaped and causes injury.
Mere bringing and keeping a dangerous thing on land is not an
actionable wrong. Liability arises when it escapes. If no escape,
liability will no arise.
3. Non-natural use of land: Strict liability arises when land is
used for non-natural purpose. Storing water in huge amount
was considered to be non-natural use of land. It is a question of
fact whether particular object can be dangerous or particular
use can not be non-natural. In deciding this question all the
circumstances of the time and place and practice of mankind
must be taken into consideration so that natural and non-
natural use of object may be varied.
Defences: There are certain defences against strict liability as
follows:
1. Plaintiff’s own fault: Fault in escape of non-natural object
by plaintiff acquits defendant from liability.
2. Act of God: If the huge amount of water is escaped and
causes injury to plaintiff is actionable but if water escapes in
result of torrential rains or flood which is beyond human
control then it is good defence.
3. Natural user of land: Anything, which is non-dangerous
and natural use of thing, if escape and causes injury, rule of
strict liability is not applied but nuisance.
4. Consent of the plaintiff: If plaintiff and defendant, both
have consents to use land or home, and escape causes injury, it
will not be actionable under the rule of strict liability.
5. Act of stranger: Even in case of non-natural user of land or
home, if escape is caused by the act of stranger, it is good
defence.
6. Statutory authority: If any statute of government allows
keeping and collecting which is dangerous or non-natural use
of land can not be held liable under strict liability. Statutory
authority has two kinds, i.e., absolute statutory
authority and permissive statutory authority. Under the
absolute statutory authority liability does not arise in any case.
In a case of Celanese, Company was authorized to make
electric cables in huge quantity during war time, and due the
negligence iron sheets touched the electric supply cables and
consequently power failed. Held not liable under absolute
statutory authority. Under the permissive statutory
authority negligence may create liability. An organization was
allowed to make hospital for prevention of small pox and they
made hospital within city, which caused spread of small pox
rather than its control. They were sued and held liable being
 negligent in the selection of site within city. They should be
constructed hospital outside of the city.
7. Bringing and keeping things, which are not
dangerous: Natural use of land and non-dangerous objects
cannot create strict liability but nuisance.
8. Common benefit: If non-natural objects or dangerous things
are kept and collected for common benefit of the society or
parties then strict liability rule will not be applied.
Rule of strict liability is applied in the following
cases: Poisonous gases leakage, Atomic Radiation, Oil Pollution,
Motor Vehicle Act or Accidents, Vicarious Liability, Factories Act
for Workmen’s Compensation, Food and Drugs Act, Res ipsa
loquitur, and Product Liability.
Malicious prosecution and malicious civil proceedings
defined as tort, which consists of instituting certain kinds of legal
proceedings against another person maliciously and without
reasonable and probable cause. Malicious is applied for malicious
prosecution, malicious bankruptcy and liquidation proceedings,
malicious arrest, and malicious execution against property.
Society as a whole is interested in protection of individual against
unjustifiable and oppressive imputation of criminal charge.
Essential ingredients for malicious prosecution: In an action for
malicious prosecution, plaintiff has to proof following:
1. That he was criminally charged in prosecution.
2. Proceedings complained were dismissed in his favour.
3. Prosecution or proceedings were carried on with malice
intention.
 4. There was an absence of reasonable and probable cause.
5. Suffering of plaintiff in result of prosecution or
proceedings.
There was a railway accident case in Dr. G. A. Abrath – v –
North-East Railway Company. In this case Mr. M was travelling
in rail which met with accident. Mr. M received injuries. Mr. M
received damages levying allegation of negligence on the part of
railway. After payment of damages, railway brought an action of
conspiracy against Dr. G. A. Abrath and Mr. M, both. Dr. G. A.
Abrath had given treatment to Mr. M after receiving injuries.
Railway alleged that there was no injury to Mr. M and Dr. G. A.
Abrath instigated Mr. M to bring an action against railway.
During the proceedings it was held that prosecutions were
without reasonable and probable cause and the case was initiated
with ill will and there was no truth in case so Dr. G. A. Abrath
suffered. Case was dismissed in favour of Dr. G. A. Abrath. Dr. G.
A. Abrath brought an action against North-East Railway
Company for malicious prosecution in which Court held Dr. G.
A. Abrath innocent and awarded damages.

[1]
Disorder, havoc, chaos, confusion, turmoil.
[2]
Order demanding the release of confiscated property (Law).
[3]
Order to return unlawfully held possessions (Law).
[4]
Lawsuit to recover property that has been taken and used by someone
else (Law).
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 Updated: Thursday January 14, 2010/AlKhamis Muharram 29,
1431/Bruhaspathivara Pausa 24, 1931, at 07:00:44 PM

Course Contents:
Easements’ Act, 1882
Easement is a story between two property owners and neighbors.
There is a maxim in law that equity helps the vigilant and not
the indolent and law making is based upon welfare of the
people is supreme law. Easement is a warning to people that
they must be vigilant in order to save their rights.
Indolent commits acquiescence, as it is assent to an infringement
of rights, either expressed or implied, from conducts, by which
the right to equitable relief is normally lost. It is a warning that no
one may be allowed to use your property as passage or grassing
field or pasture. No one should be allowed to use your property
as a source of acquisition of light, air, and passage for water
flowing. If there is no interference in trespass for consecutive
twenty years, right of easement is acquired to the trespasser.
Right of easement accrued after twenty years’ interference. It is
not kind of ownership, it is just right of use of other’s land.
Trespasser is called user and this right is called re aliena. This is
also called accessory right. One who comes to your property with
permission, if he is your friend, he is called licensee and if he is
other than of your friend, he is called invitee. Easement is
accrued by interference without permission. Dominant right of
ownership is called re properia and owner is supposed vigilant
whereas indolent property is called servient property. Easement
is called in England servitude. Easement is burden on land being
encumbrance. There are four main encumbrances on property,
i.e., lease, servitude, trust, and securities. There are some other
encumbrances like litigation, co-ownership, law limitations, and
right of light, air, water flow, or ladder access.
Definition: An easement is a right which the owner or occupier
of certain land possess, as such, for the beneficial enjoyment of
that land, to do and continue to do something, or to prevent and
continue to prevent something being done, in or upon, or in
respect of, certain other land not his own.
How the easement is acquired: Easement is acquired by
prescription, custom, and grant either implied or expressed.
Easement is a right to use (right of user) another’s property for
support water, grass, light, air, way, and drainage etc. Since this
property gives service to dominant owner, so it is also called
servient ownership.
There is no time limit in some easements like partitioning of a
house, easement by necessity, personal/prescription easement,
customary easement for all people. It should be very old, but in
case of one or two years, it can be claimed as old.
Classes of easement: There are six general classifications of
easement.
1. Affirmative (positive) and negative easement: In the case of
easement, dominant owner has positive easement because it
entitles dominant owner to make active use of the servient
tenement or to do something in the absence of an easements,
i.e., nuisance or trespass. Negative easement relates to servient
tenement. It is a restriction over the servient owner to exercise
an ordinary right of ownership over his land.
(1) Right of way.
 (2) Putting sign post.
(3) Use of kitchen of neighboring house.
(4) Use of washing place.
(5) Drawing water from neighbor watercourse.
(6) Right to bury dead body.
(7) Grazing cattle on pasture.
2. Apparent and non-apparent easement: Any sign or
evidence of apparent on the servient tenement is apparent
easement. Even the perception on careful inspection may
create easement. An apparent easement means not only one
which must necessarily be seen, but one which may be seen or
known on a careful inspection by a competent person. If there
is no evidence, or sign, or a competent authority makes no
careful inspection, that is non-apparent easement.
3. Continuous and discontinuous easement: Continuous
easement is that which does not requires act of man for
establishment. Its enjoyment, at present, or in future, becomes
due without act of man. This act must be on servient tenement.
Opening of shutter for letting light and air is not such act of
man on the servient tenement. Discontinuous
easement requires the act of man for its enjoyment. In case of
right of way, every step of man is necessary for the enjoyment
of easement and such step is on servient tenement. Light and
air is continuous easements. Right of way for A over
the land of B is discontinuous easement.
4. Prescriptive and non-prescriptive easement: Prescriptive
easement is easement where the access and use of light or air
to and for any building have been peacefully enjoyed, as an
 easement, without interruption, for twenty years. Non-
prescriptive easement does not require a period of twenty
years’ enjoyment.
(1) Grazing: Right to graze cattle over the land of
another is established with enjoyment for the statutory
period of twenty years as of right and without
interruption.
(2) Stacking manure: This easement can be acquired by
stacking manure of wasteland.
(3) Private nuisance: A right to create private nuisance
has continuously been in existence for twenty years.
(4) Profit-a-prendre: Profits, which come from rent,
garden etc., are acquired by twenty years’ uninterrupted
enjoyment.
(5) Orchard: Village community can acquire this right
after twenty years continuous enjoyment.
(6) Repairing wall: Courtyard of neighbor can be used
for the repairing and painting wall. Condition of twenty
years enjoyment is there.
(7) Fishery and ferry: The right is established on other’s
property after twenty years enjoyment.
(8) Right of privacy: This right should be proved right
since the time immemorial.
Kinds of non-prescriptive easements:
(1) Customary easement may be acquired by virtue of a
local custom.
 (2) Necessity: Where one person transfers or bequeaths
immovable property to another, that is necessity.
Partitioning of a home may create easement by necessity
for the use of common passage. Law creates the easement
of necessity under the special circumstances by virtue of
implied grant to meet the necessity of a particular use.
(3) Quasi easement: Where immovable property
possesses by operation of law.
5. Easement for limited time or on condition: An easement
may be permanent, or for a term of years, or other limited
period, or subject to a periodical interruption, or exercisable
only at a certain place, or at certain time, or between certain
house, or for a particular purpose, or on condition that it shall
commence or be come void or void-able on the happening of a
specified event, or the performance of non-performance of a
specified act.
6. Subordinate easement: Servient owner may grant on
servient heritage any easement that does not lessen the utility
of the existing easement. This easement is granted with the
consents of the dominant owner.
General kinds of easements: Following are the general kinds of
easements:
1. The “Lagan” right: This is a right to sit in worship on the
ghat of a river.
2. Passage of boats over waters belonging to other: The right
to passage for boats in rainy season over water belonging to
another property is an easement in Bengal.
3. Discharging household water: The right to put drain and
discharge ordinary household water on the neighbor’s land is
an easement that is often the subject of litigation in towns.
4. Discharge latrine water: Such a right is as in discharge of
household water.
5. Right to use another’s latrine: The right to use neighboring
latrine in the country is regarded is an easement.
6. Putting up scaffolding on neighbor’s land: Putting
scaffolding on neighbors open space for paint the wall or
plastering the wall also fall within the category of recognized
easement.
7. Putting advertisement placard or illuminations: The right
to put advertisement placard or illuminations on neighbor’s
building is an easement.
8. Storing and threshing grain: The rights to store grain on
another’s courtyard and to thresh them and otherwise use the
courtyard can also an easement.
9. Stocking manure: To stock manure on another’s land can
also be right of easement.
10. Putting rice seeds for transplantation: To go to another’s
land to plant rice seedling there, let them grow, and then carry
them to one’s own field for the purpose of transplantation
could be the subject matter of an easement.
11. Using roof for drying clothes: For the purpose of sitting or
drying clothes, roof of another, can be used.
12. Use of land for sitting and sleeping: Use of another’s land
for sleeping and sitting is an easement. This is not personal
right.
Who may impose easement: Impose means grant in the granter’s
land. Impose is used to indicate grant upon his own land.
Easement may be created either by express grant or implied
grant. Anyone may impose easement, in the circumstances, and
to the extent, in and to which he may transfer his interest in the
heritage on which the liability is to be imposed.
Following are the “any one” who may impose easement:
1. Owner: An individual owner of land can create easement for
any estate or interest. The owner of servient tenement can
impose easement, by his unilateral act, on his property.
2. Co-owner: One of the co-owners may impose easement,
with the consents of other owners.
3. Lessee: Any lessee or tenant can impose easement on the
leased land for the un-expired period of his lease or for any
shorter period.
4. Permanent tenure-holder: The holder of permanent tenure
can create an easement.
5. Ostensible or quasi owner: If a person grants an easement
upon the representation that he has the title to do so and he has
not the title at the time of the grant. If he subsequently acquires
it, the easement so granted attaches to the newly acquired
property and the conveyance operates by way of estoppel
against the denial of the right.
6. Limited owner: Limited owners having temporary interests
in land may grant easement rights, which might last during the
continuance of their interests.
Who may acquire easement: An easement may be acquired by
the owner of the immovable property for the beneficial enjoyment
of which the right is created, or on his behalf, by any person in
possession of the same.
1. Owner or person in possession: Owner of dominant
heritage or person in possession of the dominant heritage on
the behalf of the owner may acquire an easement. Easement is
acquired for the beneficial enjoyment of the dominant heritage.
An occupier of land can acquire easement.
2. Co-owner: Co-owner of tenement in joint ownership can
acquire an easement, either by grant or by prescription and on
behalf of the co-owners of the tenement, but independently of
their consents, and for the beneficial enjoyment of the
tenement.
3. Trespassers: Dominant owner is the person who has
dominant right over his own property and he has committed
trespassing for continuous twenty years over the servient
heritage and has acquired easement.
4. Lessees: A lessee who is in possession of the dominant
owner can acquire an easement for his lessor in a servient
tenement. There can be no easement between landlord and
tenant.
5. Co-tenant: Tenant of land can acquire an easement on the
property held by another tenant belonging to tenant of other
than his own lessor.

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 Go to Index | LL. B. – II | LL. B. – III | Laws | Home

Updated: Thursday January 14, 2010/AlKhamis Muharram 29,

1431/Bruhaspathivara Pausa 24, 1931, at 07:00:43 PM
Course Contents:
Definition: Crime is an illegal act or omission prohibited by and
punishable at law; and for which a special procedure is provided
at law to punish the offender.
Act is a series of acts. Extreme negligence means where crime is
committed, and omission is a state of act.
There are some acts, which look like crime, but they are not crime.
Accident on road requires the attention of the people to the victim
but no one pays attention to victim. It looks like crime but
actually it is not a crime because law has not imposed us a duty to
pay attention. There are some acts, which do not look like crime,
but they are crime. An innocent baby whose parents have been
died and he is on the disposal of the guardian and they do not
pay attention to fulfill his requirements of food and rest. This
does not seem crime but actually it is crime because they have not
fulfilled their duty to save him from danger.
Another important factor, which should be proved during the
process of pleading, is intention of the crime. If factors are there
but intention of the crime is not proved, it will not be crime.
Shock to mind is also a kind of injury. Crime is wrong against
whole society in which we live. Tort is wrong against one person
but crime is wrong towards people or society. Crime proceeds in
criminal courts, while in torts a complaint is filed. Defendant is
guilty. Burden of proof lies on plaintiff. Crime against society is
not compromised. Homicide does mean killing of man
unlawfully. Where there is love there is war.
When the state’s machinery of administration comes into action
to punish the offender which is against the law, which is criminal
law. Rights and duties are correspondent each other. Nature,
history, defamation, and intention, are ingredients and
characteristics. State maintains the peace in the society. State up-
keeps the role of morality. Mental abnormality, social justice,
family problems, injustice, poverty, lack of coordination between
institutions, and education are also a cause. Also police does not
function properly.
Occasional criminal is the man who commits single crime. Our
institutions are just educational centers rather than training
Centers. Why the rate of crimes in USA and UK is higher than
of Pakistan? There is less punishment.
Criminal liability: Brain is origin of act of crime. Wishes and
determination put person into crime. Crime is a series of chains
connected with brain to the resulted form/shape. Revolver is
taken out and someone is killed. This is kind of direct crime. If
you have trained dog and gesture to dog to attack someone, that
is indirect act. This is done through an agency. Little boy is also
can be used as an agency to commit a crime. This will be indirect
crime. Some crimes are contributory, i.e., two truck drivers hit
both trucks each other, and they will be called contributory
negligent. Some crimes are committed during the state of
provocation. They have less punishment. Negligence is also a
crime. All the results, which can not be foreseen, are not crimes.
Action must be connected closely; otherwise it will not be a crime.
Abetment means help in crimes. Case is something, which is
decided by the Court. Name of Plaintiff or State come first and
then defendant or accused. In criminal cases plaintiff is state. All
crimes are committed against state.
A person who has not provided medicines to his child who
resulted in death held not responsible because his religion or
belief was obstruction in his decision. Crime cannot be proved
until the element of mens rea is proved. Where there is absence of
foresee-ability, there is no guilty of murder.
Intention means thinking before action, and Action thinking after
intention. Intention can be judged from circumstances of the
individuals.
Subjective Test: Thinking of the accused person.
Objective Test: Thinking of society about accused person.
Now-a-days objective tests are being used in all over the world.
Low intensity of crimes involves low intensity of punishment.
Motive means move, desire, wish, ill will, hatred, love, emotions,
reasons, ego, and complexes. A motive is proof of intention but is
not essential against actus rea. Rule of transfer of Malice. A crime
in which intention was different but result is same it is also a
crime. Where there is no original crime there is not crime at all.
Anwar & others – v – State (1964) PLD 378: Two persons were
quarreled on the purchase of goat. They separated but again they
quarreled and accused struck a stick on the head of plaintiff,
which caused death. Held that there was not intention to kill and
there was no foresee-ability to case death, so it is grievous hurt
and not a murder case.
In a different case Woolinetion - v - State, a knife was used in the
similar situation and held that accused was guilty of murder
because there were foreseen consequences.
Negligence: It denotes to such blameworthy inadvertence and
who negligently brought harm upon another, can be under a legal
obligation of injury, which may sue him in the Court for
damages. Negligence means perception of a risk, which falls
below from the standard expected of a reasonable person in the
light of risk. A person is negligent if any other person can foresee
the consequences and accused fails to foresee them and fails to
take steps to avoid them. Careless or speedy driving is the
example of negligence. Negligence is also a state of mind, hasty
actions, risk taking situation, laziness etc. In the cases of
negligence, prosecution does not need to prove mens rea on the
part of the accused.
Nazir Ahmed – v – State: In this case a family was proceeding
elsewhere. A third person gets started fighting with husband.
Husband was being beaten. His wife intervenes to escape her
husband. A child was in her lap. Offender gave a blow to child in
which consequences he died. Held that he should be taken notice
of the child at that time.
Issa Khan – v – State: Driving at fast speed on a clear road is not
unreasonable, but cannot be said in case if road is not clear, and
while the vehicle is on wrong side of the road.
Ghulam Muhammad – v – State: In this case a person was
driving a car safely on a road. A person was in try to cross the
road. When car came near to him, he suddenly tried to cross the
road and get injured and dead. Held, that rash and negligence is
not committed on the part of driver because it cannot be foreseen
that one person on the roadside would try to cross the path of the
running motor vehicle which had already reached to him.
Recklessness and negligence: Nature of guilt, seriousness
of actus reus, injury, percentage of intention, quantum and
quality of guilt is considered while deciding the criminal liability.
There is no full intention in negligence. That is less than 100%. A
child who is dead by the negligence of speedy car driving is not
guilt of murder because there is no intention to kill the deceased
child. There was no pre-planed incident. But it should be noted
that driving at the speed of 100 kph at Wahdat Road could not be
claimed negligence. There was neither personal clash nor dispute
so held he is not guilty of murder but he is responsible of less
than guilty of murder.
Recklessness is extreme type of negligence. Recklessness means
over hasty act done.
1. Chief Constable of Avon & Somerset – v – Shimmen: A
person was demonstrating his skill near a shop’s window,
misjudged his kick and broken the window. He admitted in his
statement that he had thought about the risk of breaking the
window but he ignored the risk. Held that it is sufficient for
Court that there was awareness on the part of accused, so he is
liable. He was guilty of negligence.
2. Mitchell’s Case: In this case some people were standing in a
queue in a post office. There was an old lady of 89 years old.
Accused acted to push her and as a result she got injured and
died. Held he committed the manslaughter at lesser rate. He is
not guilty of murder but he is liable.
3. Pembliton: A person had been fighting with others. He
threw a stone to hit them which missed and broken the glasses
of a window of a nearby public house. His intention was to
injure the persons and not to injure property. He was not
criminally liable but it is a civil negligence.
Rule of Strict Liability: It means exclusion of mens rea. Offences
committed without criminal intention are liable. A person may
liable in some cases under strict liability rule although he has
no mens rea to commit an offence. Law respects everyone and
give liberty to everyone enjoyment of freedom and hold property.
People are supposed to behave in civilized manner. Mistake, as a
defence is not excused.
Strict Liability at Common Law:
Public Nuisance: It does mean act which interferes with the
enjoyment of a right which all members of the community are
entitled to, such as the right to fresh air or to travel on the
highway. A plaintiff may claim damages against the injury he got.
Noise of horns, dangerous driving, spreading of wastage,
covering of main road for marriages, smell of ghee mills, open
trench having bad smell, obscene literature or photos, abuses to
religion, are the general types of the public nuisance. Ten years
imprisonment is awarded in England.
Everyone is expected to be careful in his actions whatever and
whenever he or she is. Everyone is liable against his wrongdoing,
which falls under strict liability. Intention or mens rea as to
matter of defence is not excused. It has two kinds, first is Strict
Liability at Common Law and second is Statutory Offences.
Common laws are those which are statutes applicable in courts.
They are gradually come into existence. Statute offences are those
which are declared crime under statutes, i.e., Food Control Act,
one who consumes the food and faces hazardous consequences,
may sue the manufactures or seller of that product. These rules
are made to save the public health. In these cases question of
intention does not arise and only the consequences stand the
accused liable. If during the filling of cold drinks like Coca-Cola,
some dangerous material is mixed in bottles and injures the
person who consumes it would be liable for these dangerous
consequences. Company would be responsible because health of
people is prime object that is enforced under strict liability rule
and intention is not considered. All people are expected to be
more careful. The Sales of Food Act says that no one food item
can be sold with label which is wrongly linked with it. Rules of
traffic are also an example of strict liability. Actus
Reus unknowingly is no defence. In these cases on the part of
plaintiff on injury or harm is to be proved to establish liability
and reasonable care was not taken. In a case of Sweet – v –
Parsely, in which a house was rented out to the persons
unknowingly whatever they will do business in the house. They
started the business of cannabis (Chars). It was held a crime. He
pleaded that he was unaware and did not know that what
business they hold and I had no intention while renting out my
house.
In other case of Sheppard, parents did not take care of their child
who got injured and held, liability on the part of parents although
they had nothing intention. This was held under The Child Abuse
Act, 1861.
Parties to a Crime or Law of Complicity: It means commission of
crime of two or more than two offenders together for which they
have planned to commit to achieve particular results. It is also a
conspiracy of a party for the purpose of robbery. They commit
crime together and then run away from the place where they
commit the offence of robbery or other crime. This is called
complicity, partnership in a crime or wrongdoing, and all are
responsible of commission of an offence.
There may be different situation arises for the purpose of
responsibility of committing a crime. Pakistan Penal Code § 34 &
149 both regard the assembly guilty of offence by way of
encouragement, advice, provoke, committing of crime. One who
is behind is also responsible. One who keeps watch on main gate
or door, one who is sitting in a car, one who supplied weapons to
commit a crime, one who himself do not commit a crime but use
an innocent agent to commit a crime, all are responsible jointly.
In a case a mother used her daughter to give a powder to his
father for the relief in cough, which was actually not powder and
was poison. This fact being not known to the daughter, father
died. It was held in a Court of justice that mother is a guilty of
murder since the daughter lacked mens rea. If an agent has
sufficient knowledge then he may be held guilty by way of
abetting. In the case of Nawaz Sharif and Bhutto, both has/had
conspiracies to commit crime through agents and all will be/were
held offender and punished.
Conspiracy maybe made in other city or in scattered form on
different places or on the same place, but in any case it is crime of
party together and all are guilty. If one of two commits murder,
both will be responsible of crime on the ground of consequences
brought. No one can say that I have not killed the person, this is
not an excuse. No doubt that only one person killed another
person physically but second one has encouragement for his
companion. There was sharing intention to commit a crime. Both
were gone together to commit crime, so punishment will be same.
Intention is so important in such crimes. Mixed intention which
bring consequences, sharing with each other’s, same results,
makes the offenders responsible.
Animal like trained dog can also be used to commit crime and
indirect crime cannot evade the offender. Common intention is
common desire, which bring same results. One who abets in
commission of crime is punishable equally because acts are
equal. Mens rea is no more important while ends are so
important.
One of two is in better position to kill a innocent person; other
will also be responsible. When the objective is achieved with
sharing or common intention then all will be guilty of offence.
An Assembly of five persons plans to commit robbery, three of
them enter in a home, one sits in car, and one keeps watch on
gate. All have committed robbery and equal punishment will be
imposed. There is ten-year imprisonment either simple or
rigorous with hard labour.
If a member of unlawful assembly deviate before the crime is
started then he would not be guilty of crime, but if he deviates
after the crime is started, then he would be liable for the half of
the crime and half punishment will be inflicted.
Robbery involves weapon, arranged by consents, and may be
attack for the purpose of robbery while thieves never carry
weapons, commit without consents, have not knife, and they
resist but not attack.
If the intention is not there, there is no crime at all and nothing is
punishment. Friend of offender may not be held guilty if he has
not intention. Violence is also a crime. If one of unlawful
assembly kills a person with arm, who had intention of robbery,
rest would not be responsible of murder. And if three persons
rape with someone after they entered in a house for the purpose
of robbery, rest would not be held responsible for rape offence.
Main offender is that who practically/actually commits crime
while abettor is that who does not commit actually offence, but
instigate or provoke or encourage or advice or orders to commit
offence. Main offender is also called perpetrator while abettor is
helper in commission of crime. One, who provides weapon to
commit crime knowingly, is responsible. Accomplice/helper in
crime, do not play active role while principal offender commits
offence. Accomplice also desires to obtain similar results
or actus reus. He shares the responsibility. If the principal
offender commits the offence for which he was not authorized to
commit by accomplice, abettor shall not be responsible for such
offence. Murder is expected in robbery so he would be liable for
murder if occurred during the course of robbery.
Drug trafficking by policeman to reach to gang, who actually sale,
purchase, deals, is not considered accomplice while actually it is a
accomplice. This practice is adopted to apprehend the original
offender. In USA, this practice is not allowed while
in Pakistan and England, it is allowed.
Victim in crime is responsible if capacity is there. A girl under 16
years of age is not liable for conviction of intercourse even she
had consented. But in Pakistan it is a crime even it is committed
by less than 16 years of age girl or above 16 years of age. It is
called rape or adultery. Her consents are no considered. A child
under 18 years of age is not liable in criminal cases.
One who has share intention may withdraw within reasonable
time before starting the commission of crime. If he withdraw after
the commission started then he shall be liable equally. If he
withdraws before reaching to home for which he had consented
of robbery, then he is not responsible for robbery. How the
withdrawal is shown? Mere expressive form is insufficient; there
should be practical withdrawal. If A instigates for the commission
of crime B, while B commits crime in the absence of A, both will
be responsible.
Commission of the acts, which are not authorized, may not raise
responsibility. Employer is not criminally responsible for the
crime committed by his employee for whom he was not
authorized, but vicarious liability may arise in civil case.
Husband and wife are considered one in each other’s cases. If
husband commits crime, wife shall be responsible, but if they are
separated, then liability arises on individuals.
Insanity is a situation in which accused commits a crime in the
absence of mens rea. His act under the PPC S. 84 is without
mental capacity so he does not know what he has committed
actually. He cannot understand the nature of act he done. If the
following act is done in the state of total insanity then he cannot
be convicted, because this was the state where a person commits
crime without any intention. Total insanity is defence.
Defective mind is another state of mind, in which accused knows
what he is going to do. It is a kind that can be said stupid, idiot,
not intelligence, malfunctioning etc. A total incapable human
being does not recognize the situation arises before him, i.e., a
man sitting on a chair seems to be a jar or ghost and he stabs him
without knowing the actual position of him or he hits axe to him.
Held not guilty of murder but homicide. It is cleared from
another example. During a sever cold season a mad man puts fire
on the camps or tents for poor to get heat for himself, everything
is burnt and people were going the here and there, but he is too
calm and getting heat from fire, puts him in a total insanity. He is
not aware what is doing and it made no effect on him what he
done. He cannot be held guilty of crime.
People who are temporarily insane and their passions can easily
be provoked; they cannot put insanity as defence. They know
their act. They are too violent. They may commit murder. But if at
the material time, i.e., at the time of committing murder, someone
gets insanity, he is guilty of homicide but due to insanity he
cannot be convicted. Such type of person must be sent to mental
hospital for medical treatment and due care. He may be released
from hospital upon total recovery.
A man, who suffers from depression, cannot put it as defence. He
knows the nature of crime and also knows that murder is a crime.
But partial insanity is a defence upon the proof that at the
material time he was insane.
Sleepwalking is a sort of disease in which a person may stab
someone. He cannot be convicted provided at the time of
stabbing he was suffering from sleepwalking. Magic, witchcraft,
ghost, elf, are not recognized in law and cannot be put as defence.
There are two types of impulses, i.e., resistible impulse and
irresistible impulse.
In resistible impulse, i.e., in the state of strong feeling, a person
may resist to do anything. For example, there is a golden watch
and you think you steal it. Your mind does not allow stealing it
but you steal it. It is called theft so it is not a defence. You will be
liable. But in case of irresistible impulse, a man cannot resist in
doing anything. Particularly in sex crimes someone may not resist
in the commission of rape. He would be guilty of rape but his
punishment may be reduced.
Everyone is presumed sane until contrary is proved. Allah
punishes madman only and courts cannot punish him because he
cannot discriminate between the right and wrong. They do not
know whether what they are going to do. Sleepwalker may also
stands, goes, drink, and come back and sleeps. Insanity must exist
at the time of commission of crime. Man who was suffering from
the insanity at the time of committing of crime is not responsible.
Insanity while drinking is not a defence in all over the world.
Following points are important in insanity:
1. Illusions.
2. Delusions.
 3. Impulsive Insanity.
a. Resistible Impulse.
b. Irresistible Impulse.
4. Fits of Insanity.
5. Insane/Sane – State of Mind.
6. Legal Insanity.
7. Medical Insanity.
8. Insanity due to Intoxication.
Defect of Reason: Clarke – v – State: Shoplifting is a kind of theft
in which accused steals from shop without intention due to
absent mindedness and lack of control over his senses. In the said
case accused was patient of diabetic and due to sugar deficiency
he lost his senses during shopping and steals something without
having intention. It is partial defence. Held guilty of theft but
punishment was reduced.
Burgers Case: This is a case of sleepwalking in which a man
wounded a woman while sleepwalking. There was medical
evidence indicating that at the material time he was suffering
from abnormality due to an internal factor. Held disease of mind.
It is complete defence.
Byrne – v – State: A man was sexually perverted and had desired
to satisfy. He raped a girl and later killed. He was charged of
murder but he pleaded diminishing responsibility. Evidence of
strong desire was there. Held guilty of murder and punished
with life imprisonment.
Provocation: It is a loss of self-control due to faulty reasons
temporarily. There should be reasonable relationship, immediate
reaction, and punishment commensurate to the provocation. It is
a state of mind in which intellect deadens. It happens when self-
respect is injured. It is complete defence. There are many reasons
that provoke a normal person, e.g., cultural background, sensitive
insanity, climatic conditions, weather, literacy, habits, emotions,
weaknesses, health etc. An illiterate man in Baluchistan gets
immediate provocation than of educated of Lahore on reason of
passions. Upon abuses of sister, an educated person
of London does not provoke but it provokes to educated person
of Lahore, on the ground of culture.
Edward – v – State: In this case accused followed the victim
from Australia to Hong Kong for the purpose of blackmailing.
Accused went to hotel to see victim. There was fight between two
of them. Accused claimed that victim attacked him with knife and
inflicted several wounds. Consequently he snatched knife from
him and killed him. It brought to the notice of Court that accused
was provoked. He was not guilty of murder but manslaughter.
Fateh Muhammad – v – State: Accused killed his wife while she
was found in objectionable condition with her paramour. Held
provocation to be accepted as defence.
Rehmat Ullah Khan – v – State: Accused was a policeman,
posted on duty near to home. His wife came to him naked and
told him that a man had entered to home and outraged her
modesty and she had locked him in a home and come to inform
him. He lost his self-control and went to home and fired three
shots and killed. Held provocation is a good defence in this case.
State – v – Khushi Muhammad: Accused killed his wife simply
on the base of doubt of intimacy with someone. Held he is not
eligible to get the benefit of exception.
Intoxication: Who takes intoxication is liable and it is not a
defence in all over the world. If it is administrated involuntarily,
then it is defence. A man drunk heavily and killed his wife. He
claimed no guilty. Held voluntary intoxication is not defence.
Automatism: There is no provision of automatism in Pakistan
Penal Code. It is a state of mind in which act of a person is
beyond his control, is known as automatism.
In the case of Hill – v – Baxter, it was said that accused was
driving and attacked by swarm of bees, he lost his control over
driving and an accident happens. In another case motorcyclist lost
his control when he received a sudden blowout or brake failure.
Difference between Crime and Tort: It is very difficult to draw a
clear-cut distinction between a crime and a tort. A tort today may
be a crime tomorrow and vice versa. Tort is a private wrong or
infringement of a civil right while public wrongs are violations of
rights.
If the offence is serious, it maybe treated as crime, and if it is not,
it may be treated as tort.
Definition of Crime: Crime is an illegal act or omission
prohibited by and punishable at law, and for which a special
procedure is provided at law to punish the offender.
Definition of Tort: Tortuous liability arises from the breach of a
duty primarily fixed by law; this duty is towards persons
generally and its breach is redressible by an action of un-
liquidated damages.
Judicial Decisions: Tort involves a civil remedy or damages
while punishment is imposed in crimes.
Case Proceedings: Tortuous or civil proceedings are started in
civil Court purpose of which is enforcement of certain rights
claimed by the plaintiff against the defendant. Examples of civil
proceedings are an action for restoration of property, recovery of
damages, etc. Proceedings of crimes are started in criminal Court
for the punishment of offence.
It is possible that torts may give rise to civil and criminal
proceedings, i.e., assault, defamation, theft, and malicious injury
to property. In these cases both proceedings are concurrent
proceedings. The wrongdoer may be punished by imprisonment
or ordered to pay compensation to the injured party.
Magnitude of Wrong: Civil liability is measured by the
magnitude of the wrong done while the measuring the criminal
liability we take into consideration the motives, intention,
character of the offender, and the magnitude of the offence.
Nature of Wrong: Tort is a breach of duty primarily fixed by law
which duty is towards persons generally while crime is the
commission of prohibited act with ill will or guilty mind.
Nature of Decisions: Punishments are awarded for the purpose
of deterrence in crimes while remedy in term of cash compensates
the victim. In other words chief object of punishment is
deterrence while remedy in the form of damages is imposed to
take measures for prevention of violation of private rights.
Elements of Wrongs: Mens rea requires to constitute the crime
along-with actus reus while only action is sufficient to constitute
tort and ill will is no more necessary. One, who trespasses
another’s land or body, must have to pay damages.
Crime does not complete until or unless actus reus takes place.
Just mens rea is insufficient to constitute the crime while tort may
occur without injury, i.e., simply trespass to other’s property is a
tort without injury. Here maxim “injuria sine demnum” applies.
Compound-ability of Wrongs: Tort is compound-able by the
private party and state cannot interfere or compel for the
withdrawal of case because crimes are against the state and not
compound-able being public wrongs.
Parties in Cases: Both parties are private or common persons in
tort as plaintiff and defendant while state is a party being victim
in criminal proceedings and other one is accused.
Attempt in Wrongs: An attempt to commit a crime can itself be
an offence while attempt is not considerable to constitute tort.
Commencement of Wrongs: Crime requires preparation while
tort can be committed without it.
Defence as Innocent Actions: Innocent action in crime may be a
defence in some cases but tort does not recognize innocence.
Age Limit in Liability: Child under the age of 7 year is regarded
by law as “doli incapax” incapable of having mens rea while tort
may takes place by an innocent child and he may be sued through
his next friend, i.e., parents or guardian.
Defence of Insanity: Insanity is a good defence in crime but not
in tort. Provocation or instigation or temptation is defence in
crime but not in tort.
Intention of Wrongs: “Crime is an unlawful act or default which
is an offence against the public and renders the person guilty of
the act or default liable to legal punishment. While a crime is
often also an injury to private person, who has a remedy in a civil
action, it is an act or default contrary to the order, peace, and
well-being of society that a crime is punishable by the state.”
Action under mistake is not a crime. For example, a policeman
goes to arrest A, but actually he arrests B, thinking to be A. since
he has not guilty mind so he is not responsible, while mistake is
not considered in tort at all.
Unborn Children’s Liability: Unborn child can sue after he is
born in civil cases but there is no legality of unborn child in crime.
Waiver: Criminal law does not allow waiver in case where
privilege class has been exempted from liability while in tort
waiver can be used.
Codes applicability: Criminal Procedure Code is applied in
criminal cases while Civil Procedure Code is applicable in civil or
tort cases.
Pakistan Penal Code (PPC): Territorial and Extra-Territorial
Jurisdiction: § 2 & 3 deals with territorial jurisdiction. PPC is
applicable in entire Pakistan. Where there is no control
of Pakistan, e.g., FATA or FANA, there is Jirga System. People
decide their cases with traditional method in which sages decide
their case with mutual consultation. This consultation is made
among similar people. They have their own customary laws. If
offence is committed in Pakistan and offender is run away to
FATA or FANA, he is arrested through Political Agent.
Sea limits were 14 kilometer, and now have been extended upto
27 kilometer. Any crime committed within this limit, or on ship
bearing Pakistan Flag, is considered as committed in Pakistan and
tried in Pakistan under PPC.
Any crime committed in space of Pakistan is just like committed
in Pakistan. It will be treated as the same manner. Crime
committed either in PIA or British Airway is likely committed
in Pakistan. Ambassador, Foreign Sovereigns, Diplomats are
immune being diplomatic community.
If Pakistani national commits an offence in England, he can be
arrested and brought in our Court for trials.
Prisoners of war are tried under martial laws and not under PPC.
If English or American businessman has committed offence, he
also can be tried under PPC.
A person, who commits hijacking or kidnapping, commits crime
from where he passes or where he reaches. An offender who
commits hijacking in Lahore, later he reaches at London,
then Kabul, he commits crime at all places. He can be tried at the
place where he will be arrested.
If an accused has committed a crime, arrested, convicted, and
punished, the same series or one of them cannot be repeated.
If there is no man land between the two countries, accused will be
tried, forces of which country will arrest him. Persona non-grata
is the person who commits crime but being diplomatic
community he is immune to convict and is declared person not
acceptable being diplomat.
Moveable Property means property that can move from one
place to another. Anything which is moved must be corporeal,
i.e., solid. It can be touched with senses. Anything that is fixed or
attached with the earth either directly or indirectly is not
moveable property. House is fixed in earth. Ceiling fan, black
board, tree, flower, tube light are not moveable properties, but as
soon as they are removed from the place to which they are fixed
or attached, they become moveable property. Moveable property
can be stolen. Tonga attached with horse is stolen wen horse is
stolen and all other thing which lied in it. In other words
moveable property can be taken away by thief. S. 22 deals with
moveable property.
S. 23 deals with wrongful gain and wrongful loss. It means
taking away of property from its master even for a while with the
intention to wrongful loss to him. It deprives owner to get
benefits arises from the possession. If A takes away a thing from
B, without his consents, with the intention of keeping it until he
obtains money from B as a reward for its restoration. It has
caused wrongful loss to B and wrongful gain to himself and
thereby commits theft. If a watch is purchased from market, it is
not theft so there is not wrongful gain or loss. If a person
purchases a stolen watch from market without knowledge of its
theft, he commits no theft, so did not neither gain wrongfully
nor wrongful losses. If A steals a watch, and B steals it from A,
and destroys it, he has not wrongful gain and not wrongful
loss to A, but he has caused a loss to the actual owner of the
property.
S. 24 belongs to dishonesty. Whoever does anything with
intention of causing wrongful gain to one person or wrongful loss
to another person, is said to do that thing dishonestly.
Here dishonesty is different than of its general sense. It refers to
property only. Intention is important. If A does commit theft with
the property of B and C looks whole the game but conceals the
facts, he committed not dishonesty but it is a moral wrong.
Fraudulently, u/s 25, means a person to do thing fraudulently if
he does that thing with intent to defraud but not otherwise. If a
person produces a forged document before Court with the
intention to make the Court believe that he was entitled to
recover money upon the basis of document produced. If a student
produces forged degree to get admission in college, character
certificate with forged signature that does not appear correct
actually, is called fraudulently. It includes deceitful means to do
that is not to be done. Fraudulently is a broader term while
dishonestly is a part of it. Property may not involve in
it. Dishonesty covers gains and loss in property. There are certain
acts, which are both dishonesty and fraud.
S. 26 deals with Reason to Believe. It means standard of
reasonableness. It means opinion of average person in a street to
think about a particular thing. If A stabs B thinking that it does
not cause death, would be tested by the opinion of other people in
the same cadre. If a doctor operates a patient and he died would
be tested by the opinion of other doctors involved in the same
operation. Knowledge, which is based on reasonable information
or skill, is called reason to believe. If we purchase anything from
open market, cannot be think stolen thing because we have taken
reasonable care. But if there is vast difference in price, then there
should be doubt. Ghosts are not reason to believe in case of
murder. Although Quran has specified ghosts but for the
convenience to decide cases in this world it has no reason to
believe.
S. 28 is related to counterfeit. It means imitation for the purpose
of deceives to other person. If an ordinary person in street feels
something is original, although that imitation is not exact, even
then that is counterfeit.
If someone prepares currency Notes which resembles to original
and deceives anybody, amounts counterfeiting. Bankers are not
deceived, so then it is does not amount counterfeiting, but
shopkeeper is deceived then it is counterfeiting. It relates to
deceive a common person.
Counterfeiting is offence when society is deceived. It can be
found in everything such as manufacturing of cloth. Made
as Japan is also counterfeiting because ordinary person is
deceived. Three years imprisonment is the punishment. Forge
documents for the purpose of transfer of land is counterfeiting.
Japan Fan is not counterfeiting because it is a name of company
and its products are made and acclaimed made in Pakistan.
A document u/s 29 is a material written or described on any
substance and carries some meaning and can be produced as
evidence in Court. All written materials regardless written on
cloth, paper, stone, leather, tree, bones etc. is document if it
carries some meaning within the meaning of this section. It is may
be as ABC or 123 or ?-@$/=, but it should must carry meaning.
Bloodstains on cloth are also a document. Black board, affidavit,
engraved name on tree, glass, plastic, iron, brick is document.
Engraved engine number on motor cycle or pistol is document.
Wound mark on body is also a document, but an expert should
medically examine it and his report will be a document.
Valuable Security S. 30: It is a type of document, which creates
legal right, terminates, extends, transfers, restricts, or releases the
rights is valuable security. Payment through cheque, draft, money
order, are valuable securities. If I sell my home my rights are
finished and rights of buyer are created through sale deed, which
is valuable security. All documents are not valuable security but
all valuable securities are documents. Copy is not valuable
security. Cancelled cheque or draft is not valuable security.
Common intention S. 34: It means prearranged plan to commit a
crime or the intention, which brings same results. It applies where
more than one and less than five person are engaged together to
commit a crime. They know each other’s intention and they share
it together. Responsibility is shared and results are obtained, it
constitutes common intention. Equal desire and intention make
people equally responsible and equal punishment is given.
Peaceful intercession does not constitute common intention.
Conspiracy between teacher and disciple is common intention.
Common object u/s 149 has resemblance with S. 34. It is applied
where five or more persons of unlawful assembly commit offence.
Voluntarily: It applies to criminal intention direct or indirect,
express or implied. Direct or express intention is proved with
confession while implied or indirect intention is proved with
evidence. Many witnesses may appear in Court of law to testify
that particular offence has committed. If A is driving a car rashly
and consequently a passerby is caused death, does not amount
voluntarily, because there is no intention to put passerby to death.
In another example A, sets fire on a home by night, for the
purpose of facilitating robbery and thus causes death, it does not
constitute murder but manslaughter.
Injury as per S. 44 denotes to harm or fear of harm, to body of
person, reputation, property, or mind of a person. Injuries to
mind means where somebody gets mental shock due to illegal act
of another person. Injury to property means trespass or arson
where both criminal and tortuous liabilities arise. A car met an
accident; it is injury to car and damage as well. A police officer
detains a person and then release him upon receiving money; he
has put him in fear of injury.
Good Faith u/s 52 means anything, which is believed or done
with due care or attention. It is also a defence in criminal cases. It
includes recognized method, care, and qualification in most
dangerous professions.
Doctor should apply recognized method of operation over a
patient, who is not qualified, cannot put previous cases as proof.
If person on footpath applies operation methods over a patient
and patient dies, cannot say that he has been applying these
methods previously with positive results.
Types of punishments under Pakistan Penal Code (PPC)
inflicted to criminals:
Following are the punishments available under Pakistan Penal
Code (PPC) inflicted to criminals:
Death: This punishment is inflicted in case of murder, waging
war against government, mutiny, double murder, high jacking,
robbery, false evidence in same cases, rape, false claim of
apostasy, abetment in all following cases. Death penalties also
abolished in England, most of European countries, and some
states of USA. However, even in these countries, death penalty is
still awarded for the offences of treason, double murder, and
murder of member of royal family. Killing of Prime Minister and
President is also a liable to death.
Imprisonment: It means to put wrongdoer in jail or put behind
bars to live in till its completion. It has two kinds as follows:
Rigorous imprisonment: It includes hard labour or working.
Accused has to do carpeting, grinding, handicraft, or
digging earth etc.
Simple imprisonment: Accused is put in jail to stay there
without doing anything.
Length of imprisonment: Maximum imprisonment in a single
case is life imprisonment, i.e., 14 years and minimum is till the
rising of Court, e.g., whenever judge will leave, accused will be
free. To decided simple and rigorous imprisonment is not a
discretionary matter, but it is matter of law, whatever it is.
Imprisonment in default of payment of fine: If offence is
punishable with both imprisonment and fine, then imprisonment
in default of fine shall not exceed ¼th of the term of
imprisonment which is the maximum fixed by law for the offence.
Following is the scale of imprisonment in case of default:
Fine Imprisonment
Upto Rs. 50/- 02 months
Rs. 51/- to Rs. 100/- 04 months
Rs. 101/- onward 06 months
Whenever fine is paid, imprisonment is finished. If it is paid
partially, imprisonment is abated proportionally.
Solitary confinement is a mental torture to accused. The purpose
for keeping the prisoner in solitary confinement is to isolate him
from any kind of discourse or contact with the outside world. It is
inflicted in order to provide an opportunity to the prisoner of
feeling of loneliness for creating wholesome influence to perform
him. Following scale is followed:
Solitary confinement of:
One month = if term of imprisonment is
not more than six months.
Two months = if term of imprisonment is
not more than one year.
Three months = if term of imprisonment is
more than one year.
Solitary confinement cannot be awarded in lieu of fine as part of
imprisonment. It shall not exceed 14 days at a time with intervals
between the period of it and it shall not exceed seven days in any
one-month of the whole imprisonment awarded, with intervals
between the periods of it.
Fine is awarded in deserter concealed on board merchant vessel,
abetment in bribery, liable, agent for the benefit of riot, false
statement for elections, illegal payment in elections, noxious
atmosphere, nuisance, and lottery office.
Whipping in alternative or in some cases additional punishment
for certain offences. It is awarded for theft, wrongful confinement,
rape, unnatural offences, robbery, and dacoity.
Detention in reformatories: This is imposed on teenagers or
young children. They are left with their parents upon first
offence. Sometime they are sent to reformatory centers or schools
where they get education to become good citizens.
Forfeiture of property is orders in waging war to government
and illegal disposal of property.
Hadd means a thing which distinguishes the two ones. Extreme
of a thing is also called a Hadd and it is a fixed punishment in
which judge has no desecration to inflict on offenders. These
punishments are described in Quran. These are seven in numbers,
i.e., theft, murder, dacoity, apostasy, adultery, mutiny, and
alcohol consumption. These punishments include simple and
rigorous imprisonment, whipping, stoning to death, beheading,
amputation of hand and foot, and fines etc. Punishments are
inflicted keeping in view of severity of offence.
Taazir is unfixed and discretionary punishment in Islam. It is
other than Hadd. It is inflicted as the magnitude of the office is.
Retaliation or Qisas is a punishment, which is also fixed by
Allah. Qisas is compound-able punishment while Hudood are
non-compound-able. Qisas is the infliction of the pain in the same
manner and on the same part of the body, without any
discrimination. It means punishment by causing similar hurt at
same part of the body of the convict as he has caused to the victim
or by causing his death if he has committed qatl-e-amd. The basic
principle of qisas is equality or similarity. It aims at to cause
similar hurt at the same part of the body of the convict as far as
possible, keeping in view the opinion of the authorized medical
officer as the offender has caused to the victim.
Diyat or Blood Money means the punishment in the form of
compensation to be paid by the accused to the heirs of the victim.
Exemptions (defences) in Pakistan Penal Code (PPC):
1. Mistake of fact: Nothing is an offence, which is done by a
person who is bound by law to do that thing, or who by reason
of a mistake of fact and not by reason of a mistake of law, in
good faith believes that he is bound by law to do that thing.
It should includes reasonable believe which does not exist.
Person not only be a honest but also due care and attention
must be there and applied.
A lawful act done in pursuance of order of command is not
offence. A policeman set fire on mob by order of his superior in
accordance to law is not an offence.
An unlawful act in lawful manner in suspect is no offence. An
officer of Court arrests B, considering A, by reason of a mistake
of fact, in good faith, committed no offence.
In a case of State – v – Rose, a child killed his father believing
his father is going to cut off throat of his mother. Held defence
being mistake of fact.
Timmappa – v – State case says that accused and deceased
went in jungle for hunting. They took positions. Deceased
changed his position without brining into the knowledge of his
companion. Accused shot dead him accidentally and
mistakenly.
State – v – Le-Kandan: Accused gave grievous hurt to victim
believing a ghost and proved fatal injury. Held no offence even
ghosts are not recognized under any law in the world.
In Sukaroo – v – State case, an operation conducted without
lawful authority and cut off the internal piles with ordinary
knife. Man died. Held no reasonable care and attention applied
so guilty of murder.
2. S. 80 is related with accident, which is done by misfortune
and without any criminal intention or knowledge in doing of
lawful act, in lawful manner, by lawful means, and with proper
care and attention.
During horse riding, horse became out of control and killed a
man, held not liable. But shooting of a bird in home, causing
injury or death to person is no defence. Where there is
precautionary measures, negligence of victim is not defence.
If a stone is thrown on car, driver may lose its control over
driving a car and consequently it may hit to passerby. It is
complete defence.
Tunda’s case: Where there a lawful game is played with
consents and consequently without any intention any accident
causes injury or death, no offence commits. In this case two
wrestlers were doing wrestling. Accused thrown the deceased
and his head come in contact accidentally with the hard edge
of the adjoining Chabutra, which results fracture and then
death. Held implied consents of suffering, no fowl play, and
criminal intention. It was pure accident.
Ramption’s case: If an act is done with reason to believe which
is in normal circumstances is unlawful is not defence. A man
found a pistol in street, and in his opinion it was unloaded. He
showed it to his wife, she remained stand there. He pushed
trigger and bullet passes her and caused death. Held
manslaughter.
Jagosher’s case – v – State: In this case it was held that an
unlawful act done negligently is not excuse. During the beating
of a person, his wife carrying a baby came to interfere, gave
two blows to baby. He died. Held, no defence because he did
not do lawful act in lawful manner.
 Timbu Kolian – v – State: Unlawful act in negligence is no
defence. During house quarrel a man was exchanging verbally
and went outside and sat down. His wife followed him outside
and continues rebuke him. He picked up a light stick and
without knowledge that she is also carrying a baby, thrown
towards direction of voice. The blow struck baby and died.
Held manslaughter because he done unlawful act negligently.
3. Infancy: According to S. 82 of Pakistan Penal Code (PPC),
nothing is offence which is done by child under seven years of
age. S. 83 says, nothing is an offence which is done by a child
above seven years of age and under twelve, who has to
attained sufficient maturity of understanding to judge of the
nature and consequences of his conduct on that occasions.
Child under seven years of age is doli incapax, incapable to
commit an offence, since he cannot distinguish between right
and wrong.
Children, who are of sharp mind, have sufficient maturity,
intelligence, spoiled, can be convicted, if they are between
seven to twelve years of age. If Court comes at the conclusion
after cross-examination that child has attained sufficient
maturity, then he can be convicted, otherwise they are not
taken behind the bars.
In case of Ullah Mahapatra – v – State, accused was a child
under twelve years of age but above seven years. He picked up
a knife and advanced towards deceased with a threatening
gesture, saying that he will cut him into pieces and actually he
done offence. Held he was known the action and its
consequences, so he is guilty of murder.
In a case of Aimona, who was accused and ten years of age
slept with her mother-in-law, and her husband aged nineteen
 years slept with his brother in another hut. In early morning
her mother-in-law told her to do household duties. She went in
room of her husband and cut his throat, and run away and
tried her to hide in fields and couldn’t be found till after noon.
Held she was doli capax, say capable to commit an offence of
murder.
4. Intoxication is not defence in all over the world. In a case
of Manzur Hussain Shah – v – State, a mendicant was the
member of a group being tried to religious dance. One of them
instigated to accuse to do dance after taking intoxication and
he did so. Held he was aware and his consents were there. His
drunkenness was voluntarily and he was not even so
intoxicated as not to understand the nature of his act.
5. Consents § 87 – 92: Some injuries are covered in consents. If
someone injures anybody, then consent is not defence. To
injure someone on other’s will is not defence. To injure himself
is not defence but in case of suicide, if commission is
completed, then he cannot be convicted, because he died and
goes away within the reach of law and this matter goes
towards Allah Almighty. If the act of suicide remains
incomplete and just attempt is done then one-year
imprisonment and also fine can be imposed. Consents become
defence if injury inflicted is minor, otherwise it is not defence.
U/s 90, free consents can be given only for benefit or for lesser
evil. A person who gets serious injuries and he may be treated
either by operation with injury, which is lesser evil or remains
let die, he will be treated with operation which is lesser evil
inflicted for his benefit.
Wrestling, boxing, hockey, football, volley ball are lawful
games and can be played with consents and if minor injury
occur then consent is defence provided there was not
 negligence. If a labour puts some bricks on his head and take
away on the upper part of building, to receive money, gets
injury, cannot claim damages because consents are there.
Consents are defence when they are given for the benefit of the
society or individual. In emergency cases of hospital, consents
are not taken. It is presumed that consents have been taken,
called silent consents.
All the lawful games should be played lawfully and by lawful
manners. Fencing is unlawful game. Consents in unlawful
matter are not defence. Also mercy killing is not allowed in all
over the world even with the consents of the deceased person.
Only Allah can take the life and no one else or by law. Death is
only in the hand of Allah. Defence cannot be put up where
consents are given in prohibited matter. In case of Bradshaw –
v – State, it was held that fighting with deadly weapons
couldn’t be played thus cannot take the benefit of consent.
Consents in lawful game became irrelevant when the unlawful
manner is applied. If wrestler declares truce, and other
continues fighting to cause injury, cannot get the benefit of
consents.
In case of Sukaroo Kabiraj – v – State, accused was
uneducated in the matter of surgery. He operated a patient
with ordinary knife, which caused death. Held liable and
consents are irrelevant.
6. Necessity and compulsion: It is defence if it is done in good
faith to avoid risk or harm and if it is done without intent to
avoid harm to person or property then it is not offence. A
captain of vessel without intention and negligence found in a
position to run down a boat with twenty-five passengers on
boat is not guilty of murder. To save own life, it is not allowed
to kill other for feeding purpose. It was held in Dudley &
 Stephen case in 1950. Murder only can be committed where
self-defence allows with certain limits. Two offences are
exclusively prohibited under the situation of necessity and
compulsion that are murder and treason or offence against
state punishable with death. In case of murder or treason, no
man has a right to take life of other to save himself. Martial law
is claimed to enforce under necessity caused by law and order
situation. If an act of other causes danger then necessity comes
into action. If a house goes in fire and anybody goes in house to
prevent the loss in good faith but loss occurs, it is defence.
Operation of cancer patient in case of uncertainty can be done
if chance of life is rare. Always lesser or mitigate evil is
preferred. If operation is done and patient dies, it is defence.
Act of child under seven years of age, person of unsound mind,
involuntary intoxication, without intent and negligence, with
consent, for the benefit of child or unsound person are not
offence.
7. Defence of person and property § 96 – 106: It is duty of state
to protect life and property of every individual. But it is fact
that state cannot provide such protection in way to provide
guard to every one. In order to protect every individual and to
achieve this object, law permits every one to protect his life
when danger is or to be caused. Physical harm is immaterial. If
just apprehension is there, reasonable force can be used for the
preservation of life and it is right of everyone. This right is
bestowed by Allah Almighty. Allah gives life and only He can
take it back. No one is allowed to take life of other except
provided in law. Everyone has right to enjoy his life and
property. Everyone knows that right of human being should
not be infringed. I have book and house. This is my property.
No one can be allowed to snatch or occupy such things.
Purpose of protection is preservation of human life and
property. It also mitigates the occurrence of the offences. It
brings down the violation. Instincts of self-protection not only
exist in human being but also in all creatures such as animals
and birds and even in floras.
The right of self-defence has been recognized since time
immemorial. Everyone wants to live and not to die. Prolong
life is right of everyone. In earlier time this right was available
to the extent of only blood relationship, e.g., father to son;
mother to daughter; brother to sister or brother; grand relatives
to grand relatives etc. Later it was extended to other like
teacher to student and in law relatives. Now in modern time,
particularly after 1945 – 50, this right has been extended to
everyone. If a girl is being beaten without any reason, everyone
can interfere to save her life. Strangers can be protected.
In the matter of self-defence, it should must be kept in mind
that right of self-defence arises when unlawful use of force is
applied. If there is no unlawful use of force, right of self-
defence is not available. If the offender is caught then he cannot
be killed, but if the danger is there, wait of police authority
becomes immaterial.
There are some restrictions to the use of force while the danger
of use of unlawful force.
i) Attack should be unlawful: Right of self defence is
available there, where unlawful force is used to takes others’
life or property. Future threat is insufficient cause to use
force against the person. If someone goes to home to take
weapon to kill other, other should run away to mitigate the
danger. But if the danger is proximate then during the time,
lawful authorities should be invited or weapons should be
arranged to mitigate the threat of danger. Just killing of
 other person in defence is not a matter. If precautionary
measures can be taken to avoid risk, it must be taken into
consideration.
ii) Apprehension of danger: You should not wait until a
person attacks you and kill you. Danger can be apprehended
or perceived from the act going to be done. If a person
brings pistol or load it with pellets, wait to
stretch/overestimate pistol becomes immaterial, attack over
him can be done. The right of self-defence commences when
danger to life commences, and it ends when life ends. Do not
wait police and protect yourself. When running away is best
solution to avoid the risk, it is best way and do not take law
into your own hands. Law does suit in the hands of public
authorities. You may stick if you are standing on your own
land or home and fully allowed protecting your life and
property, too. Try to occupy illegally, property of others, can
be interfered with weapons without wait of police. The test
is whether an ordinary man, placed in these circumstances,
would have foreseen the coming danger.
iii) Use of reasonable force: The threat or presence of danger
does not permits to defender to use unlimited force against
accused. It should must be commensurate whether the force
used in self-defence was reasonable in relation to
apprehension of danger is a question of fact.
Sardari case is an example of non-reasonable use of force.
Killing without warning while entering in disputed land that
was action beyond what the law permitted him to do so. He
exceeded in self-defence. Held murder.
In case of Muhammad Yaqoob – v – State, accused inflicted
28 injure to deceased to save himself form sexual offence.
Observed that after infliction of first injury to make him
 disable the right of self-defence comes end. It is a clear case
of exceeding use of force in private defence.
But it is very difficult to apply exact amount of force
required for the purpose. In the heat of passion or
provocation, it is difficult for defender to measure force step
by step. It cannot be weighted in golden scale. Force should
be used in good faith.
Bashir – v – State case is the example of appropriate
apprehension of danger to protect self without proving that
injuries were actually caused to the danger. Immediate
apprehension of danger is enough though no actual harm is
caused.
Jamal Din – v – State case is an example of defence of other
who was in danger. Accused apprehends immediate danger
to his brother, who was surrounded by group of offenders
and they were attacking. Accused fired and killed one
person. Held self-defence.
If thief has given away your property, yours right to chase
him ends. Attack on thief is not allowed until apprehension
of danger is not happened. Thief only can be arrested. In
case of robber, use of force is allowed when property is
stolen, right to recover begins and when property is
recovered, right to defend ends. Do not attack upon
possession. If danger over property or self is over then right
of defence is over. If thief refuses to dispossess stolen
property then force may be used.
Rioting § 146 – 148: Whenever an unlawful assembly uses force
or violence or by any member thereof in prosecution of the
common object of such assembly, every member of such assembly
is guilty of the offence of rioting.
There are two things, which convert an unlawful assembly into a
riot, that is:
a) The use of force or violence by an unlawful assembly or
any member thereof, and
b) Such force or violence being used in prosecution of the
common object of such assembly.
There are three ingredients of rioting:
(a) An unlawful assembly,
(b) Use of force or violence by such assembly or any member
thereof,
(c) Such force or violence should be used in prosecution of
common object.
Peaceful part played by any member of the assembly is no more
important, mere intention is sufficient. Whoever is guilty of
rioting shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with
both. Use of deadly weapons is also a greater offence.
Affray S. 159: When two or more persons, by fighting in a public
place, disturb the public peace they are said to “commit an
affray”.
The ingredients of the offence are:
1. Fight between two or more persons.
2. Fight must be in public place.
3. Disturbing the public peace.
Mere abusing or beating without retaliation is no offence of
affray. It takes place where breach of peace or assault is
committed.
Difference between riot and affray:

Riot Affray

1. Public peace is 1. It is disturbance of

immaterial. It can be public peace.
committed on private
place.
2. Committed by five or 2. Two or more persons
more person. commit affray.
3. Every member is 3. Only fighters are guilty
punishable even not of affray.
violation is committed.
4. Punishment is two years 4. Punishment is one-
imprisonment, or fine, or month imprisonment, or
both. fine of Rs. 100/-, or both.

Abetment SS 107 – 117: It is a separate and distinct offence

provided the thing abetted is an offence. Abetment itself is not a
crime but it fixes responsibility in aiding to commit an offence.
Abettor is equally responsible as the principal offender is.
There are three types of abetment, i.e., where offence is
committed by instigation, engagement of two or more persons in
any conspiracy, or intentionally aid a person in committing a
offence.
1. Abetment by instigation: Instigation may happen by any
method, such as, conduct, advise, suggestion, threat, letter,
 telephone, through a third party, and permission. If the offence
is not committed, it is just an attempt to abet. In a case of Tej
Sing – v – State, widow of deceased person was leading a
funeral procession. Accused encouraged widow to commit
suicide by surrounding the police in order they may not
interfere. The widow burnt herself. Held guilty of abetment of
suicide by instigation.
2. Abetment by conspiracy: It is a combination and agreement
by person to do some illegal act or to do legal act by illegal
means. Forge document for the purpose of false evidence is
abetment by conspiracy. Obtaining LLB degree is legal object
but its receipt without sitting in examination is illegal.
3. Abetment by aid: Aid or help in commission of crime is
abetment by aid. Mere presence and awareness at the time of
commission of offence is not abetment unless influence is used
or facility is provided to commit crime. Marriage registrar at
the time of second marriage may be held guilty of abetment by
aid but member of ceremony are not abettors mere on the
ground of members of the celebration.
In old English law criminals were divided in three classes, i.e.,
principal offender, accessory before the fact, and accessory after
the fact. In Pakistan law there are only two categories, i.e., the
principal offender who practically commits an offence and
abettor, who instigates or helps or conspires.
Formula for Abetment: I. E. I.:
1. Instigation a person to commit an offence.
2. Engages other persons in conspiracy to commit an offence.
3. Intentional aiding a person in such a way that it may cause
facilitation for commission an offence.
This may amount abetment.
Criminal conspiracy § 120-A – 120-B: It is an agreement of two or
more persons to do or cause to be done an illegal act or act which
is not illegal but committed by means of illegal, such a agreement
is designated a criminal conspiracy. Mere understanding or
agreement is enough to constitute the charge of criminal
conspiracy. Needless to prove commission of practical offence.
Just arrangement of weapons to facilitate the offender is
sufficient.
If A gives a parcel to B to deliver it to the house of C which
actually contains a bomb which A intends to cause criminal
damage to C’s house. Both A & B are not guilty of criminal
conspiracy unless B knows the actual intention of A that he wants
to damage property of C. Overt act must be done to constitute
criminal conspiracy.
Qatal or murder defined as causing death or killing a human
being by human being. There are two broad categories of murder,
i.e., lawful murder and unlawful murder.
Lawful murder is divided into three kinds as follows:
1. Accidental: It is death where act to cause death is
unintentional, unplanned, by mistake, in doing lawful act, by
lawful manner, and by lawful means with due care and
attention. For example, A has valid driving licence, driving a
car on road with due care and attention at appropriate speed.
Suddenly a passerby comes before him and died, is
unintentional and accidental death.
2. Justifiable: This sort of killing is provided in general
exceptions of Pakistan Penal Code (PPC). It is a death, which is
committed by mistake of fact or judicial decision. A judge may
 convict an offender after fair trials and convict is hanged is
judicial death. Self-defence is also covered under exceptions.
3. Excusable: It is a death, which is caused by involuntary
intoxication or by person of unsound mind or minor.
There are four types of unlawful murders as defined in Qisas and
Diyat Ordinance:
1. Qatal-i-Amd or intentional murder S. 300: There are five
essential ingrediants of Qatal-i-Amd, that are:
a) Causing death of human being;
b) Death should be caused by an act;
c) There must be bodily injury with intention;
d) The act in the ordinary course of nature is likely to cause
death; and
e) Knowledge of dangerous act and can cause death.
Further death should be direct result of the injury inflicted to
deceased.
Punishment: There are five possible penalties:
a) Death as Qisas;
b) Death or life imprisonment as Taazir;
c) Imprisonment for twenty-five years where Qisas is not
applicable. It is inapplicable in the cases of minors, pregnant
women, older people, person on bed of death etc.; or
d) Imprisonment as under Ikrah-I-tam; or
 e) Ikrah-I-naqis shall be punished in one of the three ways
mentioned above, whichever suits.
Qisas means to copy the other or to follow the path followed by
other, or act like the act of another. It is infliction of similar injury
to the convict.
Qisas is not applicable:
1. Where offender dies before the enforcement of Qisas;
2. Where right of Qisas is waived off by any Wali;
3. Where the right of Qisas devolves on the offender; and
4. Where the right of Qisas devolves on the person who has no
right of Qisas against the offender.
Qisas is not levied on the following four persons:
1. Where offender is minor;
2. Where offender is insane;
3. Where the victim is child of offender, or grandchild, or how-
low-so-ever.
4. Where any Wali of the victim is direct descendant how-low-
so-ever.
Taazir means punishment prescribed and awarded by the Court
other than Qisas, Diyat, Arsh, or Daman. It includes punishment
of imprisonment, forfeiture of property, and fine. It is left at the
discretion of Court according to facts and circumstances of the
case. Compound-ability does not mean that as soon as Diyat is
paid, compound-ability is granted, the convict is released or gone
away from jail, but he is kept behind the bars and compound-
ability is just conversion of death penalty by way of Qisas to
imprisonment.
Diyat is a specific compensation payable to legal heirs of the
victim and not victim or his heirs, by the offender. It means it is
applicable in case of murder only. It is not paid in the cases of
hurt or injuries. In default of payment of Diyat, convict is to be
kept in jail to suffer from simple imprisonment until the Diyat is
paid in full. If convict dies before payment of Diyat, it is
recovered from his estate.
2. Qatal Shibe-i-Amd S. 315: It is also called culpable homicide
not amounting to murder. If act caused death is done with
intention of causing death or bodily injury as is likely to cause
death, the punishment will be greater.
If act caused death is done with knowledge that it is likely to
cause death but without intention to cause death, the
punishment will be lesser.
The essential ingredients are:
a) Causing death of a human being;
b) There was an intention to cause harm on body or mind;
c) By means of weapon or an act; and
d) Act is not likely in ordinary course to cause death.
Punishment of culpable homicide not amounting to murder is
Diyat, or imprisonment upto 14 years, or both.
3. Qatal-i-Khata S. 318: Ingredients of this offence are:
a) Causing death of a human being;
b) Causing death of a human being unintentionally;
 c) Death by mistake of fact; and
d) Death by mistake of act.
Punishment of this murder is obligatory. Sentence of Diyat and
imprisonment for five to ten years may be awarded if the act is
rash and negligent.
4. Qatal-i-Bis-Sabab S. 321: Ingredients are as follows:
a) Causing death of a human being;
b) Unintentionally;
c) By an unlawful act; and
d) Unlawful act causes death.
It is punishable with Diyat.
Offences of hurt: Hurt is harm caused to human body other than
death. The ingredients of hurt are:
1. Causing to any body;
2. Pain, harm, disease, infirmity, or injury;
3. Impairing, disabling, or dismembering any organ of the
body; or
4. Without causing death.
Formula for Simple Hurt: B. I. D.:
Bodily pain, Infirmity, and Disease
If touch causing pain, abnormality, in contrast of normal way,
anything which causes or effect the normal functions of any organ
of body. Any person’s act, which causes bodily pain, abnormality,
and abnormal function of body organ, and inability to perform
normal function of organs.
Formula for Grievous Hurt: Eid-e-Fitar:
1. Eye’s privation permanently, especially the sight.
2. Ear’s privation permanently, especially the hearing.
3. Infirmity of any organ permanently.
4. Disfigurement of any face or hand or feet.
5. Emasculation.
6. Fracture of any bone.
7. Injury on account of which the effected person.
8. Cannot peruse daily routine upto 20 days.
9. Tooth or teeth dislocation/extraction.
10. An injury on account of which any members joint is cut or
dislocated.
11. Reduction in power of any member or joint of the body.
Different kinds of hurt: There are five types of hurt provided in
Ordinance.
1. Itlaf-I-Udw S. 333: Itlaf means to destroy, to ruin, and decay.
The word udw means limb or organ. It means dismember,
amputation, or cut off any limb or organ of the body.
2. Itlaf-I-Salahiyyat-I-Udw S. 335: It means destroy or
permanently impairing the functioning power of capacity of
any organ of the body of a person or causing permanent of
some organ.
These offences are punishable with Qisas and where Qisas is not
applicable there Arsh and imprisonment is awarded. Arsh is
compensation payable in case of hurt in contrast of murder, to
victim or his legal heirs. Its amount varies case to case.
3. Shajjah S. 337: It means injuries on head or face. There are
six kinds of Shajjah.
a) Shajjah-I-Khafifah: It means simple hurt by any
weapon on head or face without exposing any bone of
the victim.
b) Shajjah-I-Mudihah: It is simple hurt by any
weapon, on head or face, where though bone is
exposed but no fracture is caused.
c) Shajjah-I-Hashimah: It is grievous hurt by any
weapon, on head or face, resulting in fracture of bone
of victim without dislocating it.
d) Shajjah-I-Munaqillah: It is grievous hurt by any
weapon, on head or face, resulting in fracture and
dislocation of bone of victim.
e) Shajjah-I-Ammah: It is grievous hurt by any
weapon, causing fracture of the skull of the victim,
where the wound touches the member of the brain.
f) Shajjah-I-Damighah: This is also grievous hurt
by any weapon, causing fracture of the skull of the
victim, so that the wound ruptures the membrane of
the brain.
4. Jurh S. 337 – B: Jurh is derived from the
word “Jarooh” which means injury. The word jurh is used for
injuries on human body other than injuries on head or face.
These injuries on human body can be divided into two kinds:
a) Jaifah means injury, which extends to the body cavity of
the trunk.
b) Ghayr Jaifah S. 337 – E: It means injury, which does not
amount to jaifah. Ghayr Jaifah Jurh may further be divided
into six kinds:
i) Damiyah: Damiyah ghayr jaifah jurh means injury
with any weapon, in any part of body except head or face
in which skin is reptured and bleeding occurs.
ii) Badiah: It means injury with any weapon, on any part
of body, except head or face, by cutting on incising the
flesh without exposing the bone.
iii) Mutalahimah: It means injury with any weapon, on
any part of the body except head or face, by lacerating the
flesh.
iv) Mudihah: This type of jurh means injury with any
weapon, on any part of the body, except head or face, in
which bone is exposed.
v) Hashimah: It means injury with any weapon, on any
part of the body, except head or face resulting in fracture
of a bone without dislocating it.
vi) Munaqqilah: This jurh means injury with an weapon,
on any part of body, except head or face, resulting in
fracture and dislocation of bone.
Punishment is Arsh and offender may also be awarded
imprisonment as Taazir.
5. Other kinds of offences including hurt:
a) Hurt because of rash and negligent driving.
b) Hurt because of rash and negligent act other than driving.
c) Hurt caused by mistake.
d) Hurt by mean of poison.
e) Any other kind of hurt which endangers life or which
causes the sufferer to remain in sever bodily pain for 20 days
or more or render him unable to follow his ordinary pursuit
for that much time.
Drinking: Whoever, intentionally and without ikrah or iztirar,
takes an intoxicant by any means whatsoever, whether such
taking causes intoxication or not, shall be guilty of drinking.
Quran says, “They ask thee, concerning wine and gambling, say,
“In Them is great sin, And some profit, for men, But the sin is
greater, Than the profit”, They ask thee how much, They are to
spend, Say, “What is beyond your needs.” Thus doth Allah, Make
clear to you, His Signs, in order that, Ye may consider.
Wine or khumar is literally understood to mean fermented juice
of grape; applied by analogy to all fermented liquor, and by
further analogy to an intoxicating liquor or drug. There may
possibly be some benefit in it, but the harm is greater than the
benefit, especially if we look at it from a social as well as an
individual point of view.
Kinds of drinking: Drinking may be either drinking liable to
hadd or drinking liable to taazir.
Drinking liable to hadd: Whoever being an adult Muslim takes
intoxicating liquor by mouth is guilty of drinking liable to hadd
and shall be punished with whipping numbering eighty stripes.
Punishment cannot be executed until or unless it is confirmed by
the Court of law.
Proof of drinking liable to hadd: The proof of drinking liable to
hadd shall be in one of the following:
1. The accused makes before a Court of competent
jurisdiction a confession of commission of drinking liable
to Hadd; and
2. At least two Muslim adult male witnesses, about whom
the Court is satisfied, having regard to the requirement of
tazkiyah al-shuhood, that they are truthful persons and
abstain from major sins (Kabir), give evidence of the
accused having committed the offence of drinking liable
to Hadd.
Tazkiyah al-shuhood means the mode of enquiry adopted by a
Court to satisfy itself as to the credibility of a witness.
Hadd is not enforced in the following cases:
1. When drinking is proved only by the confession of the
convict but he retracts his confession before the execution
of hadd, and
2. When drinking is proved by testimony, but before the
execution of hadd, any witness retracts from his testimony
so as to reduce the number of witnesses to less than two.
3. Drinking liable to Taazir.
Drinking liable to Taazir:
1. Being a Muslim, is guilty of drinking which is not liable to
hadd under Article 8 or for which proof in either of the forms
mentioned in Article 9 is not available and the Court is satisfied
that the offence stands proved by the evidence on the record.
2. Being a non-Muslim citizen of Pakistan, is guilty of drinking,
except as a part of ceremony prescribed by his religion, or
3. Being a non-Muslim who is not a citizen of Pakistan, is
guilty of drinking at a public place.
Drinking liable to taazir shall be punished with imprisonment for
a term which may extend to three years or with whipping not
exceeding thirty stripes, or with both.
Qazf: Whoever by words either spoken or intended to be read, or
by signs or by visible representations, makes or any person in
tending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation, or hurt the feelings, of
such person, is said, except in the cases hereinafter excepted, to
commit Qazf.
Kinds of Qazf: Qazf may either be qazf liable to hadd or qazf
liable to taazir.
Qazf liable to hadd: Whoever, being an adult, intentionally and
without ambiguity commits qazf of zina liable to hadd against a
particular person who is a muhsin and capable of performing
sexual intercourse is, subject to the provisions of this Ordinance,
said to commit qazf liable to hadd.
Muhsin means a sane and adult Muslim who either has had no
sexual intercourse or has had such intercourse only with his or
her lawful wedding spouse.
Proof of qazf liable to hadd: Proof of qazf liable to hadd shall be
one of the following forms namely:
1. The accused makes before the Court of competent
jurisdiction a confession of the commission of the offence.
2. The accused commits qazf in the presence of Court, and
3. At least two Muslim adult male witnesses, other than the
victim of the qazf, about whom the Court is satisfied, having
regard to the requirement of tazkiyah al-shuhood, that they are
truthful persons and abstain from major sins (Kabir), give
direct evidence of the commission of qazf.
Punishment of qazf liable to hadd:
1. Whoever commits qazf liable to hadd shall be punished with
whipping numbering eighty strips.
2. After a person has been convicted for the offence of qazf
liable to hadd, his evidence shall not be admissible in any
Court.
3. Punishment shall be executed upon the confirmation of the
Court.
Qazf liable to taazir: Whoever commits qazf which is not liable to
hadd, or for which proof in any of the forms mentioned in S. 6 is
not available or for which hadd may not be imposed or enforced
u/s 9 is said to commit qazf liable to taazir.
Punishment for qazf liable to taazir: Whoever commits qazf
liable to taazir, shall be punished with imprisonment of either
description for a term which may extend to two years and with
whipping not exceeding forty strips and shall also be liable to
fine.
Suicide S. 325: Whoever attempts to commit suicide, shall be
punished with simple imprisonment for a term which may extend
to one year, or with fine, or with both. In Islam it is also
forbidden. Quran says, “Do not destroy your life.” Abetment in
suicide is also an offence. Genuine suicide is an offence in which
a wrongdoer commits offence himself while in non-genuine
suicide is an offence committed with abetment or conspiracy.
Wrongful restraint S. 339: It is a obstruction causing to person to
reach at place where he wants to go, and law permits him. It is
keeping a man to out of place he wishes to be and has a right to
be.
Formula for Wrongful Confinement: OVER:
1. Obstruction completely on a person to move to a direction.
2. Voluntarily confining a person by wrongful restraint.
3. Each direction is included if a person is obstructed from
movement.
4. Right of movement is available to a person who is
wrongfully confined in such a way that he was entitled to
move but the all of other person have violated this right.
Formula for Abduction: TOHFA:
1. Taking a person is necessary.
2. Object of such taking is no more necessary.
3. His or her consents may or may no be there.
4. Force or compulsion by deceitful means or adopted by
taking the person.
5. Age is not considered.
Theft § 378 – 382: Whoever, intending to take dishonestly any
moveable property out of possession of any person without that
person’s consents moves the property in order to such taking is
said to commit theft.
Formula for Theft: WORD:
1. Without consent of the owner either expressive or implied.
2. Out of possession (there is no question of ownership). It is
sufficient that property which was taken out of possession of
the possessor.
3. Removal of property is must.
4. Dishonest intention – wrongful gain or wrongful loss.
Intention is the sum up of the offence. If there is no dishonesty
intention, offence is not committed. Dishonestly includes
anything with the intention of causing wrongful gain to one
person or wrongful loss to another person is
dishonestly. Wrongful gain means gain with unlawful means
and wrongful loss means loss by unlawful means.
There are five ingredients that constitute theft within the meaning
of S. 378.
1. Dishonesty to take property.
2. Such property should be moveable.
3. Actual removal of the property.
4. Removal of property from possessor.
5. Dispossession without consents.
Distinction of theft under Pakistan Penal Code (PPC) and
Hudood Ordinance.
1. Age: Under Pakistan Penal Code (PPC) anybody who
commits theft over seven years is liable to punishment while in
Hudood only adult is liable to Hadd.
2. Value of property: Under Pakistan Penal Code (PPC) any
value of property is subject of theft while under Hudood stolen
value of 4.457 grams gold is liable to Hadd.
3. Dishonestly: Dishonestly is the integral part of theft under
Pakistan Penal Code (PPC) and under Hudood it is no more
important.
4. Hirz and possession: Hirz is used in Hudood and
possession is used in Pakistan Penal Code (PPC). Hirz is wider
than of possession. It is arrangement made for the custody of
property.
5. Nature of property: Stolen property under Ordinance has
been reduced excluding the criminal misappropriated property
and the effect of criminal breach of trust from its orbit.
6. Nature of proof: A very tough mode of proof is provided in
Hudood while in Pakistan Penal Code (PPC) direct evident of
anybody is admissible.
7. Necessity: Necessity to commit theft is recognized under
Ordinance while in Pakistan Penal Code (PPC) it is mitigating
factor in punishment.
8. Gravity of punishment: Under Pakistan Penal Code (PPC)
three years imprisonment with or without fine is imposed.
Under Ordinance punishment from amputation of hand to life
imprisonment can be imposed.
Sarka (theft) liable to Hadd: It means secretly taking away of
another’s property. Property must be in custody and value of
stolen property must be upto or more than the value of ‘nisab’.
Following are the pre-requisites of Sarka.
1. Accused must be adult.
2. It should be committed secretly.
3. Stolen property should not be stolen earlier and value
should be of ‘nisab’ or more.
4. Property is taken away from ‘hirz’, i.e., arrangement made
for the custody of property.
5. Thief as touch to ‘nisab’ knows value of stolen property.
6. Victim should unaware of theft at the time of commission.
7. Victim should be there to hold accused.
Dacoity S. 391: It is like robbery with a difference of members.
Dacoity should contain five or more accused. Just a single person
can commit robbery. Gang of robbers commits dacoity and they
must be five or more.
Haraabah S. 15: Hudood Ordinance says, “when any one or more
persons, whether equipped or not, make show of force for the
purpose of taking away the property of another and attack him or
cause wrongful restraint or put him in fear of death or hurt, such
person or persons are said to commit haraabah.”
Essential ingredients of haraabah are as follows:
1. Show of force for the purpose of taking away property.
2. Attack or cause to wrongful restraint.
3. Putting in the fear of death or hurt.
Criminal Misappropriation of Property S. 403: Whoever
dishonestly misappropriates or converts to his own use any
movable property, commits criminal misappropriation of
property within the meaning of this section.
If A, takes property belonging to Z out of Z’s possession in good
faith believing at the time when he takes it, that the property
belonging to him self. A is not guilty of theft; but if A, after
discovering his mistake, dishonestly appropriates the property to
his own use, A is guilty of an offence under this section.
A, finds a rupee on the high road, not knowing to whom the
rupee belong. A picks up it. A has not committed the offence.
However, he has committed misappropriation.
A, sees Z drop his purse with money in it. A, picks up purse with
the intention of restoring it to Z, but afterwards appropriates it to
his own use. A is guilty u/s 403.
Dishonestly receiving stolen property S. 411: Whoever
dishonestly receives or retains any stolen property, knowing or
having reason to believe the same to be stolen property is guilty
u/s. 411.
Essential ingredients of dishonestly receiving stolen property:
1. Dishonest receipt.
2. Dishonest retention.
3. Stolen property.
4. Act knowingly.
5. Having reason to believe it to be stolen.
In Kamal – v – State case, state recovered the property after
passing six months of theft. Since it was not recent possession,
therefore accused was acquitted being not guilty.
S. 411 becomes inactive if receiving of stolen property is kept
concealed upto two years. It was held in case of Mukhtar Ali – v
– State.
House trespass S. 442: Whoever commits criminal trespass by
entering into or remaining in any building, tent, or vessel used as
a human dwelling or any building used as a place for worship or
as a place for custody of property, is said to commit “house
trespass”.
If a stranger enters into joint family dwelling house with the
permission of a member of the joint family does not amount to
house trespass.
It is not necessary that the full body must enter before the offence
is completed. Penetrating a hand or putting leg will be sufficient
to constitute house trespass.
House breaking S. 445: A person is said to commit “house
breaking” who commits house trespass if he effects his entrance
into the house or any part of it any of the six ways herein after
described with the intention of committing the offence, that is to
say:
1. First: If he enters and quits through a passage made by
himself or by any abettor of the house trespass in order to the
committing of the house trespass.
2. Secondly: If he enters or quits through any passage not
intended by any person, other than himself or an abettor of the
offence, for human entrance or through any passage to which
 he has obtained access by sealing or climbing over any wall or
building.
3. Thirdly: If he enters or quits through any passage which he
or any abettor of the house trespass has opened, in order to the
committing of the house trespass by any means by which that
passage was not intended by the occupier of the house to be
opened.
4. Fourthly: If he enters or quits by opening any lock in order
to the committing of the house trespass, or in order to quitting
of the house after a house trespass.
5. Fifthly: If he effects his entrance or departure by using
criminal force or committing an assault, or by threatening any
person with assault.
6. Sixthly: If he enters or quits by any passage which he knows
to have been fastened against such entrance or departure, and
to have been unfastened by himself or by any abettor of the
house trespass.
Following are the illustrations of house breaking:
1. A, commits house trespass by making a hole through the
wall of Z’s house, and putting his hand through the aperture.
This is house breaking.
2. A, commits house trespassing by creeping into a ship at a
porthole between decks. This is house breaking.
3. A, commits house trespass by entering Z’s house through a
window. This is house breaking.
4. A, commits house trespass by entering Z’s house through
the door, having opened a door which was fastened. This is
house breaking.

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

Course Contents:

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

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

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

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

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

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

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

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

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

Subjective Test: Thinking of the accused person.

Objective Test: Thinking of society about accused person.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Strict Liability at Common Law:

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

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

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

Parties to a Crime or Law of Complicity: It means commission of crime of two or more than
two offenders together for which they have planned to commit to achieve particular results. It is
also a conspiracy of a party for the purpose of robbery. They commit crime together and then
run away from the place where they commit the offence of robbery or other crime. This is called
complicity, partnership in a crime or wrongdoing, and all are responsible of commission of an
offence.
There may be different situation arises for the purpose of responsibility of committing a
crime. Pakistan Penal Code § 34 & 149 both regard the assembly guilty of offence by way of
encouragement, advice, provoke, committing of crime. One who is behind is also responsible.
One who keeps watch on main gate or door, one who is sitting in a car, one who supplied
weapons to commit a crime, one who himself do not commit a crime but use an innocent agent
to commit a crime, all are responsible jointly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following points are important in insanity:

1. Illusions.

2. Delusions.

3. Impulsive Insanity.

a. Resistible Impulse.

b. Irresistible Impulse.

4. Fits of Insanity.
 5. Insane/Sane – State of Mind.

6. Legal Insanity.

7. Medical Insanity.

8. Insanity due to Intoxication.

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

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

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

Provocation: It is a loss of self-control due to faulty reasons temporarily. There should be

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

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

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

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

State – v – Khushi Muhammad: Accused killed his wife simply on the base of doubt of
intimacy with someone. Held he is not eligible to get the benefit of exception.
Intoxication: Who takes intoxication is liable and it is not a defence in all over the world. If it is
administrated involuntarily, then it is defence. A man drunk heavily and killed his wife. He
claimed no guilty. Held voluntary intoxication is not defence.

Automatism: There is no provision of automatism in Pakistan Penal Code. It is a state of mind

in which act of a person is beyond his control, is known as automatism.

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

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

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

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

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

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

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

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

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

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

Nature of Decisions: Punishments are awarded for the purpose of deterrence in crimes while
remedy in term of cash compensates the victim. In other words chief object of punishment is
deterrence while remedy in the form of damages is imposed to take measures for prevention of
violation of private rights.
Elements of Wrongs: Mens rea requires to constitute the crime along-with actus reus while
only action is sufficient to constitute tort and ill will is no more necessary. One, who trespasses
another’s land or body, must have to pay damages.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

S. 26 deals with Reason to Believe. It means standard of reasonableness. It means opinion of

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

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

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

Counterfeiting is offence when society is deceived. It can be found in everything such as

manufacturing of cloth. Made as Japan is also counterfeiting because ordinary person is
deceived. Three years imprisonment is the punishment. Forge documents for the purpose of
transfer of land is counterfeiting. Japan Fan is not counterfeiting because it is a name of
company and its products are made and acclaimed made in Pakistan.

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

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

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

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

Voluntarily: It applies to criminal intention direct or indirect, express or implied. Direct or

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

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

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

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

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

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

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

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

Rigorous imprisonment: It includes hard labour or working. Accused has to do

carpeting, grinding, handicraft, or digging earth etc.

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

Length of imprisonment: Maximum imprisonment in a single case is life imprisonment, i.e., 14

years and minimum is till the rising of Court, e.g., whenever judge will leave, accused will be
free. To decided simple and rigorous imprisonment is not a discretionary matter, but it is matter
of law, whatever it is.

Imprisonment in default of payment of fine: If offence is punishable with both imprisonment

and fine, then imprisonment in default of fine shall not exceed ¼th of the term of imprisonment
which is the maximum fixed by law for the offence.

Following is the scale of imprisonment in case of default:

Fine Imprisonment

Upto Rs. 50/- 02 months

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

Rs. 101/- onward 06 months

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

proportionally.

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

Solitary confinement of:

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

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

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

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

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

Whipping in alternative or in some cases additional punishment for certain offences. It is

awarded for theft, wrongful confinement, rape, unnatural offences, robbery, and dacoity.

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

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

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

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

Retaliation or Qisas is a punishment, which is also fixed by Allah. Qisas is compound-able

punishment while Hudood are non-compound-able. Qisas is the infliction of the pain in the
same manner and on the same part of the body, without any discrimination. It means
punishment by causing similar hurt at same part of the body of the convict as he has caused to
the victim or by causing his death if he has committed qatl-e-amd. The basic principle of qisas is
equality or similarity. It aims at to cause similar hurt at the same part of the body of the convict
as far as possible, keeping in view the opinion of the authorized medical officer as the offender
has caused to the victim.
Diyat or Blood Money means the punishment in the form of compensation to be paid by the
accused to the heirs of the victim.

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

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

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

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

An unlawful act in lawful manner in suspect is no offence. An officer of Court arrests B,

considering A, by reason of a mistake of fact, in good faith, committed no offence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

i) Attack should be unlawful: Right of self defence is available there, where unlawful
force is used to takes others’ life or property. Future threat is insufficient cause to use
force against the person. If someone goes to home to take weapon to kill other, other
should run away to mitigate the danger. But if the danger is proximate then during the
time, lawful authorities should be invited or weapons should be arranged to mitigate the
threat of danger. Just killing of other person in defence is not a matter. If precautionary
measures can be taken to avoid risk, it must be taken into consideration.
ii) Apprehension of danger: You should not wait until a person attacks you and kill you.
Danger can be apprehended or perceived from the act going to be done. If a person
brings pistol or load it with pellets, wait to stretch/overestimate pistol becomes
immaterial, attack over him can be done. The right of self-defence commences when
danger to life commences, and it ends when life ends. Do not wait police and protect
yourself. When running away is best solution to avoid the risk, it is best way and do not
take law into your own hands. Law does suit in the hands of public authorities. You
may stick if you are standing on your own land or home and fully allowed protecting
your life and property, too. Try to occupy illegally, property of others, can be interfered
with weapons without wait of police. The test is whether an ordinary man, placed in
these circumstances, would have foreseen the coming danger.

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

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

In case of Muhammad Yaqoob – v – State, accused inflicted 28 injure to deceased to

save himself form sexual offence. Observed that after infliction of first injury to make
him disable the right of self-defence comes end. It is a clear case of exceeding use of force
in private defence.

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

Bashir – v – State case is the example of appropriate apprehension of danger to protect

self without proving that injuries were actually caused to the danger. Immediate
apprehension of danger is enough though no actual harm is caused.

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

If thief has given away your property, yours right to chase him ends. Attack on thief is
not allowed until apprehension of danger is not happened. Thief only can be arrested. In
case of robber, use of force is allowed when property is stolen, right to recover begins
and when property is recovered, right to defend ends. Do not attack upon possession. If
danger over property or self is over then right of defence is over. If thief refuses to
dispossess stolen property then force may be used.
Rioting § 146 – 148: Whenever an unlawful assembly uses force or violence or by any member
thereof in prosecution of the common object of such assembly, every member of such assembly
is guilty of the offence of rioting.

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

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

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

There are three ingredients of rioting:

(a) An unlawful assembly,

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

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

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

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

The ingredients of the offence are:

1. Fight between two or more persons.

2. Fight must be in public place.
3. Disturbing the public peace.

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

Difference between riot and affray:

Riot Affray

1. Public peace is immaterial. It can be 1. It is disturbance of public peace.

committed on private place.

2. Committed by five or more person. 2. Two or more persons commit affray.

3. Every member is punishable even not 3. Only fighters are guilty of affray.
violation is committed.
 4. Punishment is two years 4. Punishment is one-month
imprisonment, or fine, or both. imprisonment, or fine of Rs. 100/-, or
both.

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

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

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

2. Abetment by conspiracy: It is a combination and agreement by person to do some illegal

act or to do legal act by illegal means. Forge document for the purpose of false evidence is
abetment by conspiracy. Obtaining LLB degree is legal object but its receipt without sitting
in examination is illegal.

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

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

Formula for Abetment: I. E. I.:

1. Instigation a person to commit an offence.

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

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

This may amount abetment.

Criminal conspiracy § 120-A – 120-B: It is an agreement of two or more persons to do or cause

to be done an illegal act or act which is not illegal but committed by means of illegal, such a
agreement is designated a criminal conspiracy. Mere understanding or agreement is enough to
constitute the charge of criminal conspiracy. Needless to prove commission of practical offence.
Just arrangement of weapons to facilitate the offender is sufficient.

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

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

Lawful murder is divided into three kinds as follows:

1. Accidental: It is death where act to cause death is unintentional, unplanned, by mistake, in

doing lawful act, by lawful manner, and by lawful means with due care and attention. For
example, A has valid driving licence, driving a car on road with due care and attention at
appropriate speed. Suddenly a passerby comes before him and died, is unintentional and
accidental death.

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

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

unsound mind or minor.

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

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

a) Causing death of human being;

b) Death should be caused by an act;

c) There must be bodily injury with intention;

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

e) Knowledge of dangerous act and can cause death.

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

Punishment: There are five possible penalties:

a) Death as Qisas;

b) Death or life imprisonment as Taazir;

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

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

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

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

Qisas is not applicable:

1. Where offender dies before the enforcement of Qisas;

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

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

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

Qisas is not levied on the following four persons:

1. Where offender is minor;

2. Where offender is insane;

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

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

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

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

2. Qatal Shibe-i-Amd S. 315: It is also called culpable homicide not amounting to murder. If
act caused death is done with intention of causing death or bodily injury as is likely to cause
death, the punishment will be greater.
 If act caused death is done with knowledge that it is likely to cause death but without
intention to cause death, the punishment will be lesser.

The essential ingredients are:

a) Causing death of a human being;

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

c) By means of weapon or an act; and

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

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

years, or both.

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

a) Causing death of a human being;

b) Causing death of a human being unintentionally;

c) Death by mistake of fact; and

d) Death by mistake of act.

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

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

a) Causing death of a human being;

b) Unintentionally;

c) By an unlawful act; and

d) Unlawful act causes death.

It is punishable with Diyat.

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

1. Causing to any body;

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

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

4. Without causing death.

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

Bodily pain, Infirmity, and Disease

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

Formula for Grievous Hurt: Eid-e-Fitar:

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

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

3. Infirmity of any organ permanently.

4. Disfigurement of any face or hand or feet.

5. Emasculation.

6. Fracture of any bone.

7. Injury on account of which the effected person.

8. Cannot peruse daily routine upto 20 days.

9. Tooth or teeth dislocation/extraction.

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

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

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

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

2. Itlaf-I-Salahiyyat-I-Udw S. 335: It means destroy or permanently impairing the functioning

power of capacity of any organ of the body of a person or causing permanent of some organ.

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

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

a) Shajjah-I-Khafifah: It means simple hurt by any weapon on head or face

without exposing any bone of the victim.
 b) Shajjah-I-Mudihah: It is simple hurt by any weapon, on head or face, where
though bone is exposed but no fracture is caused.

c) Shajjah-I-Hashimah: It is grievous hurt by any weapon, on head or face,

resulting in fracture of bone of victim without dislocating it.

d) Shajjah-I-Munaqillah: It is grievous hurt by any weapon, on head or face,

resulting in fracture and dislocation of bone of victim.

e) Shajjah-I-Ammah: It is grievous hurt by any weapon, causing fracture of the

skull of the victim, where the wound touches the member of the brain.

f) Shajjah-I-Damighah: This is also grievous hurt by any weapon, causing

fracture of the skull of the victim, so that the wound ruptures the membrane of
the brain.

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

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

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

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

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

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

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

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

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

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

5. Other kinds of offences including hurt:

a) Hurt because of rash and negligent driving.

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

 c) Hurt caused by mistake.

d) Hurt by mean of poison.

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

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

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

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

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

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

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

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

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

commission of drinking liable to Hadd; and

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

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

Hadd is not enforced in the following cases:

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

3. Drinking liable to Taazir.

Drinking liable to Taazir:

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

2. Being a non-Muslim citizen of Pakistan, is guilty of drinking, except as a part of ceremony

prescribed by his religion, or

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

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

Qazf: Whoever by words either spoken or intended to be read, or by signs or by visible

representations, makes or any person in tending to harm, or knowing or having reason to
believe that such imputation will harm, the reputation, or hurt the feelings, of such person, is
said, except in the cases hereinafter excepted, to commit Qazf.

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

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

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

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

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

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

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

Punishment of qazf liable to hadd:

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

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

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

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

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

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

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

Formula for Wrongful Confinement: OVER:

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

2. Voluntarily confining a person by wrongful restraint.

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

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

Formula for Abduction: TOHFA:

1. Taking a person is necessary.

2. Object of such taking is no more necessary.

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

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

5. Age is not considered.

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

Formula for Theft: WORD:

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

2. Out of possession (there is no question of ownership). It is sufficient that property which

was taken out of possession of the possessor.

3. Removal of property is must.

4. Dishonest intention – wrongful gain or wrongful loss.

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

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

1. Dishonesty to take property.

2. Such property should be moveable.

3. Actual removal of the property.

4. Removal of property from possessor.

5. Dispossession without consents.

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

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

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

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

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

5. Nature of property: Stolen property under Ordinance has been reduced excluding the
criminal misappropriated property and the effect of criminal breach of trust from its orbit.
6. Nature of proof: A very tough mode of proof is provided in Hudood while in Pakistan
Penal Code (PPC) direct evident of anybody is admissible.

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

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

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

1. Accused must be adult.

2. It should be committed secretly.

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

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

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

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

7. Victim should be there to hold accused.

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

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

Essential ingredients of haraabah are as follows:

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

2. Attack or cause to wrongful restraint.

3. Putting in the fear of death or hurt.

Criminal Misappropriation of Property S. 403: Whoever dishonestly misappropriates or

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

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

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

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

Essential ingredients of dishonestly receiving stolen property:

1. Dishonest receipt.

2. Dishonest retention.

3. Stolen property.

4. Act knowingly.

5. Having reason to believe it to be stolen.

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

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

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

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

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

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

1. First: If he enters and quits through a passage made by himself or by any abettor of the
house trespass in order to the committing of the house trespass.
2. Secondly: If he enters or quits through any passage not intended by any person, other than
himself or an abettor of the offence, for human entrance or through any passage to which he
has obtained access by sealing or climbing over any wall or building.

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

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

5. Fifthly: If he effects his entrance or departure by using criminal force or committing an

assault, or by threatening any person with assault.

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

Following are the illustrations of house breaking:

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

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

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

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

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