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Old Monday, October 18, 2010
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Default Pakistan Penal Code--- Notes

Pakistan Penal Code...

The Pakistan Penal Code usually called PPC is a penal code for all offences charged in Pakistan. It was originally prepared by Lord Macaulay with a great consultation in 1860 on the behalf of the Government of British India as the Indian Penal Code. After the partition of India in 1947, Pakistan inherited the same code and subsequently after several amendments in different governments,it is now mixture of Islamic and English Law.

History...


The draft of the (British) Indian Penal Code was prepared by the First Law Commission and it was chaired by Lord Macaulay. Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Suggestions were also derived from the French Penal Code and from Livingstone's Code of Louisiana. The draft underwent a very careful revision at the hands of Sir Barnes Peacock, Chief Justice, and puisne Judges of the Calcutta Supreme Court who were members of the Legislative Council, and was passed into law in 1860, unfortunately Macaulay did not survive to see his masterpiece enacted into a law.

Though it is principally the work of a man who had hardly held a brief, and whose time was devoted to politics and literature, it was universally acknowledged to be a monument of codification and an everlasting memorial to the high juristic attainments of its distinguished author. For example even cyber crimes can be punished under the code.

Important Features of PPC
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:-

(1) any citizen of Pakistan or any person in the service of Pakistan in any place without and beyond Pakistan;
(4) 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..

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:-- (i) Rigorous, i.e., with hard labour;
(ii) Simple;

Ninthly, Forfeiture of property;
Tenthly, Fine
First five punishments are added by amendments and are Islamic Punishments.
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  #2  
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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.


From the above discussion this is clear that neither theory can be adopted as sole standard of punishment for the perfect penal code .
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  #3  
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PUNISHMENT UNDER PAKISTAN PENAL CODE
=================================================

The scheme of the punishment is laid down from sections 53 to 75 of the pakistan penal code out of which five sections namely sections 56, 58, 59, 61, and 62 have already been repealed. Different types of punishments rules for their assessment and enhancement in subsequent offence, from the subject matter of this topic .


PUNISHMENT IN ISLAM
=================================================

The punishment in islam in its nature, is deterrent as well as reformative. Recent researches reveal that imprisonment is and has, infact proved itself to be a source of producing criminals, besides bringing a burden on public ex-chequer.

Fine, as prescribed in various modern legislative enactments, has miserably failed to achieve the desired results . It neither bring any reformatory to the criminalnor put any deterrent effecton him. Specially in these days when the money value has gone down tremendously, the country's old scales of fines failed to produce any effects on the minds of the criminal. It is suggested that provisions relating to imposition of fine and prescribing imprisonment in various enactments may be reconsideredin the light of their effects on reforming the criminal vis-a-vis the islamic principles of punishment.

Islamic law has also additional forms of punishements. A person who is convicted of false accusation of fornication for example, is deprived of the right of testimony, a pnalty which corresponds to some extent to the loss of civil status which accompanies some convictions, today.

Punishments in islam are of three kinds
HADD
QISAS
TAAZIR

According to section 53 as amended by the criminal laws amendment act II of 1997, the offenders areliable to the following punishments:

1. Qisas
2. Diyat
3. Arsh
4. Daman
5. Taazir
6. Death
7. Imprisonment for life
8. imprisonment of two description (1) rigorous (2) simple
9. Forfeiture of property
10. Fine
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  #4  
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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.
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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 himfrom legal custody......... punishment upto 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 upto 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 upto six months or with fine.


-----------------------------------------------
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HARBOURING AN OFFENDER
----------------------------------------------




The word "harbour" according to section 52-A, includes the supplying a person with shelter, food, drink , money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means to evade apprehention.


The various provisions in the penal code relate to harbouring or concealing a person knowing him to be an offender with the intention of screening him from legal punishment, harbouring or concealing an ofender having escaped from custody, or whose apprehension has been ordered, and knowingly harbouring any persons who are about to commit or have committed Robbey or Dacoity.



The above provisions however, do not extend to the case in which the harbour is given by the wife or husband of the person harboured, ( sections 212, 216, 216-A)




The above However, presupposes that some offence has been actually committed and that the harbourer gives refuge to a person knowingly that thereby he helps to evade his apprehention or screens him from legal punishment . It does not apply to the harbouring of persons , not being criminals, who abscond to avoid or delay a judicial investigation
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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.



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 oe year ** time 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.
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Counterfeiting :


A person is said to counterfeit who :
(i) Causes one thing to resemble another thing .
(ii) intending by means of that resemblance to practise deception, or
(iii) knowing it to be likely that deception will thereby be practised .

Explanation :

(1) It is not essential to counterfeiting that the imitation should be exact .
(2) When a person cause one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised .
(S . 28)
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PUNISHMENT FOR OFFENCES COMMITTED OUTSIDE PAKISTAN...
================================================== ========
================================================== ========


There is no express enactment by which the pakistan's legislature can assume to render foreigners subject to the criminal law with reference to acts committed by them beyond the limits of pakistan. In the words of chief justice Cockburn,

" proposition of law can be more incontestable or more universally admitted than that, according to the general law of nations, a foreigner, though criminally responsible to the law of the nation not his own for acts done by him while within the limits of its territory, cannot be made responsible to its law for acts done beyond such limits . The rule must however, be taken subject to this qualification, namely6, that if the legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed beyond the limits of its territory, it would be incumbent, on the courts of such country to give effect to such enectment, leaving it to the state to settle the question of international law withthe governmentsof other nations."

The acts of a foreigner committed by him in the territory beyond the limits of pakistan do not, therefore constitute an offence against the penal code, and consequently, a foreigner cannot be held criminally responsible under that code by the tribunals of this country for acts committed byhim beyond its territorial limits.
It is only for acts done when the person doing them is within the territory over which the authority of pakistan law extends, that the subjects of a foreign state owe obedience to that law and can be made amenable to its jurisdiction. Thus when it is sought to punish a person, who is not a pakistani subject, as an offender in respect of certain act, the question is not, where was the act committed, but, was the person at the time when the offence was committed, within the territory of pakistan.
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Default Extradition

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.
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