The Handout Notes for BA-LLB student.

Friday, August 16, 2013

Saturday, August 10, 2013

Important Features of Pakistan Penal Code

Jurisdiction

Section 1. Title and extent of operation of the Code. This Act shall be called the Pakistan Penal Code, and shall take effect throughout Pakistan.
Section 4 The provisions of this Code apply also to any offence committed by
  • any citizen of Pakistan or any person in the service of Pakistan in any place without and beyond Pakistan
  • any person on any ship or aircraft registered in Pakistan wherever it may be.
Explanation: In this section the word "offence" includes every act committed outside Pakistan which, if committed in Pakistan, would be punishable under this Code. Extension of Code to extraterritorial offences.

Punishments in Pakistan Penal Code

Section 53:
The punishments to which offenders are liable under the provisions of this Code are:
  • Firstly, Qisas
  • Secondly, Diyat
  • Thirdly, Arsh
  • Fourthly, Daman
  • Fifthly, Ta'zir
  • Sixthly, Death
  • Seventhly, Imprisonment for life
  • Eighthly, Imprisonment which is of two descriptions, namely
    1. Rigorous, i.e., with hard labour
    2. Simple
  • Ninthly, Forfeiture of property
  • Tenthly, Fine
First five punishments are added by amendments and are Islamic Punishments.

OBJECTS AND PURPOSES OF PUNISHMENT

The object and purpose of punishment is the prevention of crime and every punishment is intended to have double effect, viz, to prevent the person who has committed a crime from repeating the act or omission and to prevent other members of community from committing similar crimes. The main object of awarding punishment for offences is to create such an atmosphere which may become a deterrence for the people who have propensities towards crime and thereby prevention of offences so that the society in which all the members have to live may not feel suffocated, distuebed and prone to unhealting environment. The measure of punishment therefore, must vary from time to time according to the condition of a particular crime and other circumstances. The object of punishments being preventive, Penal policy of state should be to protect the society.

THEORIES OF PUNISHMENT

1. DETERRENT

According to this theory the punishment is awarded to deter people from committing the crime. Emotion of fear play a vital role in man's life. The peole fear to commit the crime because it will render them to suffer. The fear of punishment put a check not only on criminal from committing further crime but also on all other evil minded. In spite of its weakness this has not entirely been eliminated from the policy of modern court of criminal justice. Hegal strongly supported this theory.

2. RETRIBUTIVE

The theory is based on the principle of an eye for an eye and tooth for tooth. The offender should be punished according to the nature of injury caused by him to the victim. In other words punishment should be in proportion to the injury caused by the accused. This theory does not look to the motive but to the intention in committing the crime. According to Salmond, t suffer punishment is to pay a debt due to the law that has been violated.

3. PREVENTIVE

This has also been called theory of dsablement as it aims at, preventing the crime by disabling the criminal. In order to prevent the repitition of crime , the offenders are punished with death, imrisonment for life. For example, a murder is commited by A and he is punished. Here A is punished not for having committed the murder, but in order that no further murder be committed. This theoty has been commented by many writers on the ground that prevention of crime can also be done by reforming the behaviour of the criminal.

4. REFORMATIVE

The object of punishment according to this theory should be to reform the criminals. The cime is a mental disease which is caused by different anti-social elements. Therefore, there should be a mental case of the criminal s instead of awrding them severe punishment. Much truth lies in the statement that to open a school is to close a prison. if a persons of criminal mind are educated and trained there will be a little or not at all possibility of any crime being committed by them. The punishment therefore should be curative or corrective because no body could be cure by killing. In modern times much imortance is given to reformation or rehabilitation of the criminals.specially the young offenders in whose case this theory has very successfully applied. This theory has however failed in the cases of professional and habitual offenders.


Term of imprisonment solitary confinement

TERM OF IMPRISONMENT SOLITARY CONFINEMENT

Not exceeding six months 
a time not exceeding one month

exceeding 6 months but not exceeding one month
time not exceeding two months

Exceeding one year
ime not exceeding three months
It is clear from the above that a sentence inflicting solitary confinement for the whole term of imprisonment is illegal. It must bear only a portion of the term of imprisonment.

 Section 74 of the code further limits the solitary confinement by providing that in executing a sentence of solitary confinement , such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.

Solitary confinement as a ruleis not ordered unless there are special features appearing in the commission of the offence.

Use and criticism

Those who accept the practice consider it necessary for prisoners who are considered dangerous to other people ("the most predatory" prisoners), those who might be capable of leading crime groups even from within, or those who are kept 'incommunicado' for purported reasons of national security. Finally, it may be used for prisoners who are at high risk of being attacked by other inmates, such as pedophiles, celebrities, or witnesses who are in prison themselves. This latter form of solitary confinement is sometimes referred to as protective custody.

Counterfeiting

Solitary confinement in PAkistan Penal Code

Solitary confinement

Solitary confinement is a punishment or special form of imprisonment in which a prisoner is denied contact with any other persons, excluding members of prison staff. It is considered by some as a form of psychological torture. It is usually cited as an additional measure of protection (of society) from the criminal. It is also used as a form of protective custody.

Solitary confinement is colloquially referred to in American English as the 'hole', 'lockdown', the 'SHU' (pronounced 'shoe') or the 'pound', and in British English as the 'block' or the 'cooler'

 This is a kind of imprisonment which secludes the prisoner from any intercourse or sight of, and communication with other prisoners. it may be accompanied with or without labour.

 Section 73 of pakistan penal code provides that whenever any person is convicted of an offence for which under the code the court has power to sentence him to rigorous imprisonment , the court may by its sentence , order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sntenced, not exceeding three months in the whole.

Attempt to escape from custody

ATTEMPT TO ESCAPE FROM CUSTODY

The provisions relating to an attempt to escape from custody are contained in sections 224,225, and 225-B of the pakistan penal code.

They provide punishment

 (a). for a person resisting or obstructing the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, orescaping or attempting to escape from legal custody. 
imprisonment upto two years with fin or with both.

 (b). resisting or obstructing lawful apprehension of another person for an offence or rescuing or attempting to rescue him from legal custody. punishment up to two years or with fine, but if the person to be apprehended is charged for an offence punishable :

 (1). with imprisonment for life or imprisonment for ten years.

 (2). or with death the sentence provided is up to three years and seven years respectively and

(c). resistance or obstruction to lawful apprehension or escape or rescue in cases not covered by the above two provisions. 
Imprisonment up to six months or with fine.

HARBOURING AN OFFENDER

Criminal conspricay

CRIMINAL CONSPIRACY
Conspiracy differs from oter offences in this respect that in other offences the intention to do a criminal act is not a crime of itself untill something is done amounting to the doing or attempting to do some act to carry out the intention, conspiracy on the other hand consisit simply in the agreement or confederacy to some act, no matter whether it is done or not.

 When two or more persons agree to do, or cause to be done:

 (i) an illegal act

 (ii) or a legal act by illegal means

such an agreement is designated a criminal conspiracy, provided that no agreement except an agreement to commit shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof...... section 120-A PPC.

 PUNISHMENT OR CRIMINAL CONSPIRACY

As regards punishment section 120-B P.P.C provides that one who is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or upwards, shal, where there is no provision for the punishment of such a conspiracy, be punished as an abettor of such offence, in other cases he shall be liable to a punishment that may extend to six months , or with fine or with both.

ABETMENT AND CONSPIRACY

As regards the difference between abetment and conspiracy the former is the wider of the two, it is a genus of which the offence of conspiracy is a species. Abetment may be committed in various ways enumerated in section 107 and 108 and conspiracy is one of them. Abetement per se is not a substantive offence, while criminal conspiracy is a substantive offenceby itself and is punishable as such.

Difference Between Sections 34 and 149 of PPC

To a certain extent both sections are overlapping and both can be invoked against the accused when there is no difference between the object or intention with which the offence is committed. But it was pointed out in a case by Privy Council that there is such difference in the scope and applicability of section 34 and 149 inspite of their similarity. Section  149 is wider in its sweep and longer in its reach than section 34. The actual participation in action is the essential  element of section 34 but membership of the unlawful assembly is the leading feature of section 149 PPC. Section 34  merely declares a rule of criminal liability but section 149 creates a specific offence. Common object is different than  common intention as it does not require prior concert and a common meeting of minds but an unlawful object is  developed when people assembled together. At least two persons are required to share the common intention under. 

Common intension and common object

COMMON INTENTION
Section 34 of the pakistan penal code deals with constructive criminality i.e., liability of all for acts done by one or   more. This section was introduced in order to meet the cases in which it may be difficult to apportion the liability of each member according to his participation in the commission of the crime. Since it is difficult to distinguish precisely the part taken by each member of a group, it was thought necessary to declare all the persons equally liable for the acts done. SEction 34 does not create a distinct offence, it only lays down the principle of joint criminal liability. So it is a rule of evidence only and does not create a substantive offence.

The words “furtherance of common intention “have been the subject of much discussion amongst the lawyers and  conflicting interpretations have been put forth.

 One common agreed point has, however, been that furtherance of commonly design is the condition precedent for joint liability under section 34. The words common intention means unity of purpose or a pre-arranged plan.

 INGREDIENTS OF SECTION 34 PPC

 1. Two or more persons.

 2. They must have a common intention to commit an offence.

 3. Participation by all the accused in doing act or acts in furtherance of that common intention.

 COMMON OBJECT

Offences against the state

The offences against the state may be classified as under.

1. Waging or attempting or conspiring to wage or collecting men and ammunition to wage war against the government of pakistan (sections 121, 121-A, 122 and 123 of pakistan penaal code.)

 2. Assaulting president, or governor of any province with intent to compel or restrain the exercise of any lawful power.( section 124 of pakistan penal code).

 3. Sedition (section 124-A of pakistan penal code).

 4. War against the government of any asiatic power at peace with pakistan or committing depredations on the territories of such power ( sections 123 - 126 of pakistan penal code)
ENHANCED PUNISHMENT
Section 75 of pakistan penal code provides that whoever, having been convicted by a court in pakistan of an offence punishable under chapterXII or chapter XVII of the code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under any of those chapters with like imprisonment for the like term, shall be subject for evey such subsequent offence to imprisonment for life , imprisonment for either description for a term which may extend to ten years.

Extradition

Extardition means the surrender of fugitive offender by one state to another in which the offender is liable to be punished or has been convicted. The law of extradition is founded upon the broad principle that it is to the interest of Civilized communities that crimes, acknowledged to be such, should not go unpunished, and it is part of the comity of the nations that one state should afford to another every assistance towardsbringing persons guilty of such crimes to justice.
Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition.

The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state has legal authority over the people within its borders.

Such absence of international obligation and the desire of the right to demand such criminals of other countries have caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries.

 The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained.

 Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons (regardless of whether or not this is justified). A case in point is that of Ira Einhorn, in which some US

 commentators pressured President Jacques Chirac of France, who does not intervene in legal cases, to permit extradition when the case was held up due to differences between French and American human rights law.

Right of Private Defence and Right of private defence of body.

RIGHT OF PRIVATE DEFENCE

 Subject to, certain limitations the law gives a right to every person to defend his body or property, or the body or property of another person against unlawful aggression. He may protect his right by his own force or prevent it from being violated. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. This use of force to protect one's property and person is called the right of private defence.

RIGHT OF PRIVATE DEFENCE OF BODY :

 Section 97 lays down that every person has a right, subject to the restrictions contained ih Section 99, to defend his own body and the body of any other person, against any offence affecting the human body. Section 102 of the Code provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence the offence though, the offence may not have been committed; and it commences as long as such apprehension of danger to the body continues. It is clear from the wording of the section that the right commences and continues as long as danger to body lasts. The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and consequent thereon an apprehension of danger, but it should not be a mere idle threat. There must be reasonable ground for the apprehension.

What is an act excusable on the ground of its being done by accident or misfortune ? Cite illustrations.

ACCIDENT IN DOING A LAWFUL ACT :

Section 80 provides that nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. A is at work with a hatchet; the head files off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence. The essential ingredients to constitute a justifiable plea ofaccident or misfortune are :

 (1) that the act was done by accident or misfortune ;

 (2) that it was done without any criminal intention ;

 (3) that it was the doing of a lawful act ;

 (4) in a lawful manner;

 (5) by lawful means; and

 (6) with proper care and caution.

 If has been held that where two persons went out to shoot animals and agreed to take up certain position in the jungle and lie in wait, but after a while the accused heard a rustle and believing it to be an animal fired in that direction but the shot killed his companion, the Case was held to be one of pure accident, although the gun used was an unlicensed one. But where the accused was engaged in a fight in which a woman intervened, whereupon the accused aimed a blow at her, but it accidentally killed the infant she was carrying, it was held that the. case was not protected by the provisions of Section 80 as the assault on the woman was a wrongful act.

ATTEMPTS TO COMMIT OFFENCES

Plea of compulsion or necessity

The excuse of necessity or compulsion as a defence for an act cannot be pleaded except as provided in Section 94 of  the Pakistan Penal Code. That section lays down that except murder and offences against the State punishable with  death, nothing is an offence which is done by a person who is compelled to do it by threats which, at the time of doing it,  reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided the  person doing the act did not, of his own accord, or from a reasonable apprehension of harm to himself short of instant  death, place himself in the situation by which he became subject to such constraint. This section will not, however, save a person who, of his own accord or by reason of a threat of being beaten, joins a gang of dacoits. But if he is seized by a gang of dacoits and forced by threat of instant death to do a thing which is an offence by law. for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it under pain of instant death, will be entitled to the benefit of this section.

 It is thus clear from the above that a person is excused from the consequences of any act, except murder and offences  against the State punishable with death, done under fear of instant death ;but fear of hurt or even of grievous hurt is not  a sufficient justification. It has been held that the accused was not entitled to the protection of Section 94 of the Code in  the case where the threat of instant death was present at the beginning or even some time afterwards but did not  continue till the end of the commission of an offence. There must be the apprehension of force upon the person and fear  of death, and this force and fear must continue to be present at the time of the act.

Offences Relating to Religion

OFFENCES RELATING TO RELIGION

 They are provided in section 295 to 298 of pakistan penal code , which are as follow:

 1. Injuring or defiling a place of worship, or any object held sacred by any class of persons, with intent to insult the religion of any class of persons.
section 295
punishment upto two years with or without fine)

 2. Deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs.
section 295-A 
punishment upto three years)

 3. Voluntarily disturbing a religious assembly lawfully engaged in the performance of religious worship, or religious ceremonies.
section 296
punishment upto one year)

 4.Trespassing in any place of worship , or burial place, offering any indignity to a human corpse, with intent to wound the feelings or religion of any person. 
section 297
punishment upto one year)

 5. Uttering words or making signs with the intention of wounding the religious feelings of any person . 
section 298
punishment upto one year.

 6. Using derogatory remarks in respect of the Holy Passenger . 
Section 298-A
punishment upto three years or fine or both.

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