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  #11  
Old Monday, October 18, 2010
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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)

5. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring, a tate prisoner.(Ss. 128- 130 ppc)
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  #12  
Old Wednesday, October 20, 2010
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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.

The above section does not create a substantive offence, but only imposes a liability to enhanced punishment under the following conditions :


1. The previous conviction must have been under chapter XII or chapter XVII of the pakistan penal code punishable with three years imprisonment.

2. The previous conviction must not have necessarily resulted in the awarding of three years punishment, but it must be an offence punishable with three years improsonment or more.

3. The subsequent offence must have been committed after the previous conviction, i.e, the section is inapplicable to offences committed at one and at the sid time.

4. The subsequent offence must be an offence punishable with three years imprisonment or more.

5. The subsequent offence must fall under chapter XII or chapter XVII and be punishable with three years imprisonment or more before section 73 of the pakistan penal code can be made applicable.
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  #13  
Old Thursday, October 21, 2010
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===== COMMON INTENTION 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:
===============================


Section 149, like section 34, is the other instance of constructive joint liability. Section 149 creates a specific offence. It

runs as under:

" If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that

assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object,

every person who, at the time of the committing of that offence , is a member of the same assembly, is guilty of that

offence".


The essence of offence under section 149 of pakistan penal code is assembly of several persons ( not less than five in

any case ) having one or more of the common objects mentioned in section 141. Section 149 creates joint liability of all

members of an unlawful assembly for criminal for criminal act done by any member in prosecution of the common object

of the said assembly.

So the essential ingredints of sectin 149, P.P.C are:

1. There must be an unlawful assembly as defined in section 141 of ppc.

2. Criminal act must be done by member of such assembly.

3. Act done is for prosecution of the common object of the assembly, or such which was likely to be committed in

prosecution of the common object

4. Members have voluntarily joined the unlawful assembly and know the common object of the assembly.



DIFFERENCE BETWEEN SECTIONS 34 AND 149 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 uch 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

section 34 but for applicability of section 149 unlawful assembly must consist of atleast 5 persons.
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  #14  
Old Thursday, October 21, 2010
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CRIMINAL LIABILITY OF AN INTOXICATED PERSON
================================================== =


Section 85 of Pakistan penal code lays down that nothing is an offence whis is done by a person who, at the time of doing it, is by reason of intoxication, incapable of knowing the nture of act, or that he is doing what is either wrong, or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

The ingredients of this section are that a person will be exonerated from liability for an act done while in a state of intoxication if he at the time of doing it, by reason of intoxication was:

1. incapable of knowing the nature of the act.

2. That he was doing what was either wrong or contrary to law.

3. That the thing which intoxicated him was administered to him without his knowleged or against his will.


Voluntary drunkness is no excuse for the commission of the crime. But if a man is made drunk through stratagem or the fraud of others, or through ignorance, or through any other means against his will, he is excused.


Section 86 of pakistan penal code further says that a person voluntarily drunk will be deemed to have the same knowledge and liable for the consequences as he would have had if he had not intoxicated. The section attributes to a drunken man the knowledge of a sober man when judging of his action , unless the thing which intoxicated him was administered to him without his knowledege or against his will.



================================================== =============================================


============= 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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  #15  
Old Friday, October 22, 2010
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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.
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  #16  
Old Friday, October 22, 2010
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Q. . What is an act excusable on the ground of its being done by accident or misfortune ? Cite illustrations.


Ans. 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.
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  #17  
Old Friday, October 22, 2010
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ATTEMPTS TO COMMIT OFFENCES :
============================================

Section 511, lays down that "whoever attempts to commit an offence punishable by this Code with imprisonment for life

or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the

commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt,

be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of

the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence,

with such fine as provided for the offence, or with both.

The points which require proof under the above section are:

(1) that the accused attempted to commit some offence punishable with imprisonment for life or imprisonment; or that he

attempted to cause such an offence to be committed ;

(2) that in attempting to do the above act he did some act towards the commission of the offence.


ILLUSTRATIONS :
======================

(a) A makes an attempt to steal some jewels by breaking open a box and finds after so opening the box, that there is no

jewel in it. He has done an act towards the commission of theft, and therefore is guilty under the above section.


(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in

consequence z's having nothing in his pocket. A is guilty of an offence under the above section.
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  #18  
Old Friday, October 22, 2010
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+++++++ 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.


The right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant if the offence occasioning the exercise of the right be of any of the following descriptions, viz.,

(i) an assault" causing reasonable apprehension of death-even injury to innocent persons in private defence against an assault is excusable,

(ii) assault causing reasonable apprehension of grievous hurt;.

(iii) assault with the intention of committing rape, gratifying unnatural lust, kidnapping or abducting or wrongfully confining a person causing reasonable apprehension that he will not be able to have recourse to the public authorities for his release.

For the purpose of exercising the right of private defence physical or mental incapacity of the person against whom the right is exercised is no bar.There is, however, no right of private defence:

(1) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant or by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law;

(2) in cases in which there is time to have recourse to the protection of the public authorities ;

(3) nor does the right of private defence extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. (S. 99).The measure of defence must bear proportion to the quantum of force used by the attacker and which it is necessary to repeL Thus where the accused who was attacked by another with a Kirpan succeeded in disarming his opponent by taking away hls weapon and showered blows after blows including the serious ones on the chest, it was held that he must be held to have exceeded the right of self defence and was guilty under section 304, part 1 of pakistan penal code.

An act done in exercise of the right of private defence is not an offence and does not, therefore, give rise to any right of private defence in return. The right is not available in respect of anticipated action. Defensive action is justified only when positive overt act of damage or harm is set in motion. The law does not confer a right of self-defence on a man who goes and seeks an attack on himself by his own threatened attack on another' -an'attack which was likely to end in the death of the other.The right of self-defence conferred- by the law or Preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right.
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  #19  
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What about the expiatory theory of punishment?
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  #20  
Old Monday, September 23, 2013
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Default Expiatory Theory

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Originally Posted by AsgharKhan View Post
What about the expiatory theory of punishment?
Expiatory Theory

This theory is peculiar in nature which can be linked to Islamic Jurisprudence mainly. This is also named as theory of penance. Jurists who support this theory believes that if the offender expiates or repents, he must be forgiven but some punishment is necessary for the purification of the offender for example in Islam, the act of “Taubah” purifies the soul from all kind of sins and wrong-doings furthermore the freeing of slaves is recommended both for the expiation of sins and as an act of simple benevolence. Jurists of Christianity, Hinduism and other religions have also supported as well as adopted this theory.

Fry observes that punishment should be in order to ‘adjust the suffering to the sin’. Oppenheimer is of the opinion that punishment is the purification not of the individual alone but of the humanity as a whole.

The theory is historical one. Expiation is to some extent akin to the idea of retribution but there are some differences between Retributive Theory and Expiatory Theory.

Retributive Theory
1. This theory works under the penal laws.
2. Violence and personal revenge are in higher quantity in retributive theory.
3. The punishment is imposed under this theory depending upon the nature of the offence. Generally, similarly injury or harm is caused to the accused, by which the victim suffered at the time of the criminal act.
4. Generally, serious and light natured offences are covered under this theory.
5. Retributive theory is an age-old principle and had been followed for centuries. Even now, in certain Islamic countries such types of punishments are followed.

Expiatory Theory
1. This theory is akin to the law of torts.
2. “Recognition of rights and grievance” of the victim or victim’s family members is the primary and essential things in expiation theory.
3. The accused is not physically punished. He is economically punished, and such compensation is awarded to the victim or victim’s family members.
4. Generally, expiation theory is adopted in light natured offences. (Section 345 compoundable offences of Cr. P.C.).
5. Expiation theory is a new thinking of 19th and 20th centuries.
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