Contract Act
What is the need of contract Act?
For the uniformity at contract there should be an act or some rules which they contactor acts up them. And it
was for the regularity of merchants in sub- continent. In 1600 East – Indian company came for trade to
India between England and India. That place was trust to British Crown. In 1857 Jange Azadi Gov of Indian
Act 1858, then imposed of law started to Sub- Continent.
Preamble: it is to define & amend.
Section 1: Short Title: this act may be called the Contract Act, 1872.
Extent, commencement; it extends to the whole of Pakistan and it shall come into force on the first day of
September, 1872.
Enactments repealed. – Nothing herein contained shall affect the provisions of any Statute, Act or
Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any incident of any
contract, not inconsistent with the provision of this Act.
It means if there is any act which is not repealed will work in this act as well. Statute, Act,
Regulation exist and not repealed will continue. And they are not affected by this act. Nor any usage of
Custom of trade as well example: One Dalee is equal to 5 Kg and this is Custom usage. And also inconstant
is also continued.
Background of Contract Act : This Act is divided into two parts :
1. General Principles of contract Section 1-75.
How contract exists and what are legality of a contract and many basics of contract.
2. Indemnity, Guarantee, Pledge, Bailment, Agency .
In this there are specific contracts which are to be studied in Part II. Sale of Good Act 1930 Section 76-123.
In 1872 it was part of contract Act but it is separated from contract Act. And also partnership act
1932, was part of it section 239-260 it is also separated.
Section 2. Interpretation: in every Act section two is always explanatory section, which explains basic
definitions and terms which are used in the act.
Proposal: When one person signifies (convey) to another his willingness to do or to abstain from doing
anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a
proposal;
Promise : When the person to whom the proposal is made signifies his assent (acceptance) thereto, the
proposal is said to be accepted. A proposal, when accepted, become a promise.
Promisor and Promisee: the person making proposal is called the 'promisor' and the person accepting the
proposal is the 'promisee'.
Consideration : when at the desire of the promisor, the promise or any other person ( agent of promise and
link with him or representative of promise) has done or abstained from doing or does or abstains from
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doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a
consideration for the promise;
Agreement: every promise and every set of promises, forming the consideration for each other, is an
agreement.
Reciprocal Promises: promises which form the consideration or part of the consideration for each other are
called reciprocal promises;
Void Agreement: an agreement not enforceable by law.
Contract: An agreement enforceable by law is a contract.
Voidable Contract: An agreement which is enforceable by law at the option of one or more of the parties
thereto, but not at the option of the other or others, is a voidable contract. ( It can be acted upon , effect
parties can take action or can make it live. Only the effect party which act can make it and third party can
not inter in it). Due to some circumstances the contract is void.
Void Contract: A contract which ceases to be enforceable by law becomes void when it ceases to be
enforceable.
Example: Pakistan contracts V Holland sugar but parliament of Holland passes not to buy sugar. So it come
void contract.
Proposal ------------Accepted -----------Promise-----------Agreement---------Contract.
Basic Concepts
1. Offer or proposal
In section 2 (a) of contract Act proposal or offer is defined as , " when one a person signifies to
another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that
other to such act or abstinence, he is said to make a proposal " .
A proposal and its acceptance is the universally acknowledged process for the making of an
agreement. The proposal is starting point.
The first part of definition of proposal lays emphasize upon the requirement that the willingness to
make a proposal should be signified. Signifies means to indicate or declare or to convey. It means that
should be communicated to the other party. Section three of contract act recognize it as , " the
communication of proposal, the acceptance, respecting are deemed to be made by an act or omission of the
party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or
revocation or which has the effect of communication it". It may be done by words of mouth, by writing or
even by conduct which has effect of laying before the offeree the willingness to do or abstain.
Essentials of Valid offer
1. Offer may be expressed or implied. Section 9 explains this term .
2. Offer must create legal relations.
3. Offer must be definite and clear. An offer which does not contain any particulars as to the thing
offered does not constitute a proposal properly so called. Therefore where one person by a letter
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asks the consent of another to a certain transaction without stating the consideration, it is not an
offer.
4. It may be specific or general. An offer is said to be specific when it is addressed to a definite
individual or body of individuals. It is general when it is addressed to an unascertained body of
individuals. A general offer made to do business with any body who shall perform certain acts.
5. It must be communicated, and this is explained in section 3 of act.
6. It can not contain negative condition. Offer must be contain for its acceptance positive condition
and negative condition can not be in the condition of offer for the acceptance of contract,
example if you say no or if you don't accept it means it is acceptance. And this is a negative
condition.
7. It may be subject to condition as time or manner is concerned.
Express or implied offer
It is said that offer may be express or implied and this is explained in section 9 of Act as , " In so far
as the proposal or acceptance of any promise is made in words, the promise is said to be express. Insofar as
such proposal or acceptance is made otherwise than in words, the promise is said to be implied".
This section assumes that both proposals and acceptances may take place without express words. An
implied promise in the sense of the Act is a real promise, though not conveyed in words.
Express contract may be proved by written or spoken words which constitute an agreement between
the parties which an implied promise may be proved by circumstances evidence of an agreement. Examples
A bid at an auction is an implied offer to buy, consuming in self-service restaurant create implied promise to
pay for the benefit enjoyed.
Cases
Steven v Bromley & sons
(1919) 2 KB 722
This case is an implied offer case in English law. There was a ship going to some where, Steven
highered a place in a ship for steel billets, when he loaded, he loaded with general items, and the rate was
different, higher than steel billets. The ship company gave him a bill higher than the contracted money or
charge. He refused to pay and case went to the court, the court decided that loading general items instead of
steel billets was held to have done so under an implied promise to pay the higher rate.
Haridas V Bank of India
(1920) 47, IA, 17.
Some body obtained debt from bank and bank started charging compound interest. He failed to pay
debt. And after calculation he objected, and went to the court. The court decided that you did not object to
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the charge of a compound interest in accordance with the usual course of business, so you where held to
have impliedly contracted to pay the compound interest.
Haji Mohammad Ishaq v Mohammad Iqbal
(1978) 2, SCC, 493-500
Haji Ishaq ordered to a go- between man certain good to supply. When he was given a bill after six
months Haji said it is very high rate, and I don’ t pay for this. The court decided that the conduct of Haji
showed that he agreed an implied contract and it brought between them and Haji Ishaq has to pay the
amount.
Clarke v Earl of Dunraven
(1897) AC, 59
A yacht club, had written rules for the club that any body who damages the yacht he has to pay for
the club. A gentleman broken the yacht, club sued him to pay the amount of damages, he refused, the court
decided that when you become the member of this club you had to read the rules and rules are expressed so
you have to pay because you expressly accepted their offer and you have to pay the charge of damages.
Upton Rusal District Council V Powell
(1942) 1, All ER, 220
Upton Council had maintained a fire brigade and specified certain areas where the people can
voluntarily contribute for services and fire brigade could freely service them. One day fire was in the house
of Powell. He called them and they put off his house is out of free zone, and they billed him for the charge
of service, he refused to pay, the matter was taken to the court. The court said, "The truth of the matter is
that Powell wanted the services of Upton; he asked for the services of Upton and Upton in response to that
request provided the services. Hence the services were rendered on an implied promise to pay for them.
2. Acceptance
Section 2(b) defines acceptance as follows:
When the person to whom the proposal is most signifies his assent thereto, the proposal is said to be
accepted. A proposal, when accepted becomes a promise. The acceptance is the assent given to a proposal
and it has the effect of converting the proposal into promise.
The principle is that there should be some extra manifestation (overt act) of acceptance, which is to
be a mere mental determination to accept unaccompanied by an external indication will not be sufficient.
Such manifestation may be in the form of express words, written or spoken or may be signified through
conduct. And the illustration of this conduct will be shown in a case below.
Essentials of acceptance
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1. It may be express or implied. This show the conduct which the acceptance must be in an
expressed way or may be implied and the case below shows the acceptance in implied conduct.
Brogden V Metropolitan Railway Company
(1877) 2 App Cas, 666, HL
Railway Corporation was receiving coal from Brogden without any contract, after some times, they
formulated an agreement. The agents of both met a drew up an agreement. The representative of Railway
Company didn't show the contract and kept that in Almari, after some times Mr. Brogden charged a bill of
payment for the company and they refused to pay in high rate, but Brogden said we had agreed in contract.
So the case went to house of Lord and Lord Cairns LC decided that the Railway Company had accepted
impliedly the contract and by virtue of conduct of Railway Company has to pay the bill. And you had to
refuse this on that time so it is an implied acceptance.
2. Communication of the acceptance to the offorer himself. Acceptance must be communicated to
the offorer himself and not to the third party. And example of this is in the case of Felthous V.
Bindley (1893) 7, LT 831.
3. Communication by acceptor himself. The communication of acceptance should be from a person
who has the authority to accept. Information received form an unauthorized person is ineffective.
In this case below it is cleared.
Powel V Lee
(1908) 24, TLR, 606
There was a school required for the headmaster and advertised in newspapers, people came for
interviews, one of them was appointed by a resolution of manager, but the decision was not communicated
to him. One of the members in his individual capacity informed him. The manager canceled their resolution
and the plaintiff sued for breach of contract.
The court decided that there must be notice of acceptance by an authorized person, and information
by an unauthorized person is not sufficient for the contract.
4. Offer can not impose burden of refusal. It means not negative condition would be imposed in
offer. As the offeror can not say that if no answer is received within a certain time, the same shall
be deemed that you have to accept. As in the case of Felthous V Bindley (1972) 35, Mod, LR
489-500.
5. Communication of acceptance may not be necessary in certain cases. It means communication of
acceptance is not necessary in every cases. The offeror may prescribe a particular mode of
acceptance, then all that the acceptor has to do is to follow that mode. Example announcement to
pay reward for discovering a lost thing is an offer which does not need acceptance.
6. Acceptance may have to be made in prescribed manner. Acceptance has to be made in the
manner prescribed or indicated by the offeror. An acceptance given in any other manner may not
be effective, particularly where the offeror clearly insists that the acceptance shall be made in the
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prescribed manner. The observances of the mode prescribed by the offer obviously suffices to
complete the agreement. Whether precise observance is necessary is, however, a matter of some
doubt. An offer may prescribe the method of communication acceptance. Whether some
particular mode has been prescribed depends upon the inference to be drawn from the
circumstances.
7. Acceptance must be absolute. Section 7 of contract Act explains this element, " Acceptance must
be absolute.- in order to convert a proposal into a promise, the accept must be 1. Absolute and
unqualified. 2. be expressed in some usual and reasonable manner, unless the proposal
prescribed the manner in which it is to be accepted. If the proposal prescribes a manner in which
it is to be accepted, and the acceptance is not made in such manner, the propose may within a
reasonable time after the acceptance is communicated to him, insist that his proposal shall be
accepted in the prescribed manner, and otherwise; but if he fails to do so he accept the proposal.
And accept must be absolute and unconditional and must correspond to the terms of the offer
without leaving any term open to further negotiations.
3. Communication
The communication is explained in section 4 in detail. Section 4 enacts three kinds of cases :
1. when the communication of proposal is complete.
2. When the communication of acceptance is complete.
3. When the communication of revocation is complete.
1. Communication of Proposal : the communication of a proposal is complete when it comes to the
knowledge of the person to whom it is made. It means that the act of communication of the offer is
not necessary. It is sufficient if the offer comes to the knowledge of the promise. If it accepted to
contract is completed.
2. communication of acceptance : it completes :
-
when it is put in a course of transmission to him , so as to be out of the power of the acceptor.
-
as against the acceptor, when it comes into the knowledge of the proposer.
3. Communication of revocation : is complete:
- as against the person who makes it, when it put into a course of transmission to the person to whom its
made, so as to be out of the power of the person who may.
- as against the person to whom it is made, when it comes to his knowledge.
Revocation is just when the communication is not completed.
The communication is completed when it is reached to the knowledge of acceptance, and the
communication of acceptance is complete when it is put in the course of transmission. And this is all when
two parties are away.
Example
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A proposes, by letter, to sell a house to B at a certain price. The communication of the proposal is
completed where B receives the letter.
B accepts A's proposal by a letter sent by post. The communication of the acceptance is complete.
As A posted letter as against B when the letter is received by A.
A revokes his proposal by telegram. The revocation is complete as against A when the telegram is
dispatched. It is complete as against B when B receives it.
B revokes his acceptance by telegram, B's revocation is complete as against B when the telegram is
dispatched, and as against A when it reaches him.
Adams V. Limdsell
(1818) 106, ER, 250.
On second September 1817, offorer sent a letter that he had some wool available for sell. He added,
" I should recive your reply by post", the letter reached the plaintiff on 5 th Sep, on that evening the
plaintiff wrote an answer agreeing to accept the wool. The letter was receiving to the offeror on 9th Sep,
but he sold the wool on 8th Sep , so the plaintiff sued for breach of contract. The court decided that A
was in contract because he was bound to wait and this bound is a contract, and the propose is bound
when it is put in the post of transmission.
4. Revocation
Section 5 and 6 explain about revocation and how revocation made.
Revocation is possible and effective at anytime before acceptance; up to this moment ex hypothesis
no legal obligation exist as it is established in this case. Payne V Cave (1789) 3 Term Rep 148 .
Revocation means to cancel or to change because the action is not completed yet, before reaching
offer to the other party or to B revocation will take place.
Section 5. Revocation of Proposals and acceptances – A proposal may be revoked at any time
before the communication of its acceptance is complete as against the proposer, but not afterwards.
An acceptance may be revoked at any time before the communication of the acceptance is complete
as against the acceptor, but not afterwards. And communication of acceptance was explained in section 4.
Illustrations
A proposes, by letter sent by post, to sell his house to B
B accepts the proposal by a letter sent by Post.
A may revoke his proposal at any time before or at the moment when B posts his letter of
acceptance, but not after.
B may revoke his acceptance at any time before or at the moment when the letter communicating it
reaches A , but not afterwards.
Revocation how made?
Section 6 of contract Act explains this point in detail . a proposal is revoked :
1. by notice : by the communication of notice of revocation by the proposer to the other party ;
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2. By lapse of time prescribed in such proposal for its acceptance, or if not time is so prescribed, by the
lapse of a reasonable time without communication of the acceptance.
3. By the failure of the acceptor to fulfill a condition precedent to acceptance; or
4. By the death or insanity of offeror , if the fact of the death or insanity come to knowledge of
acceptor before acceptance.
5. Consideration
Section 25 of Contract Act opens with the declaration that an agreement without consideration is
void. Consideration has been variously defined. The simplest is by Blackstone ; " Consideration is the
recompense given by the party contract to the other" . In other word it is the price of promise.
Patterson defined, " Consideration means something which of some value in the eye of law. It may be some
benefit to the plaintiff or some determent to the defendant.
In section 2 (d) consideration is defined as , " When, a the desire of the promiser the promise or any
other person done or abstained from doing or does or abstain from doing or promises to do or to abstain
from doing something, so act or abstinence or promise is called a consideration for the promise " .
In Pakistani law without consideration contract can not be made but in English Law it can be
possible. Quid Pro Qua ‫ ادلى كاىبكلهلى‬, in exchange what ever once has done to any other and paid him a value it
is consideration. In section 2 (d) these three things are mentioned :
1. has done ----------------- present
2. abstain from doing-----Past
3. Does------------------------Future.
Consideration covers present, past and future in the definition and consideration must have value.
Agreement without consideration void, unless it is in writing and registered , or is a promise to
compensate for something done, or is a promise to pay a debt barred in limitation law. An agreement made
without consideration void, unless:
1. Nature love and affection (near relation to each other) such as mother, father, sister, ect. Exp: they
have gifted a land; it should be in writing and registered, due to natural love.
2. Done under legal compulsion ; Example two partners in the past, but one of them was not paid
and consideration in the past. Past consideration is valid for now if it is not against limitation Act.
3. Debit, barred by limitation law. Exp: 5 Million was debt he didn't give in 2 years; the person went
to court after 4 years so it is barred by limitation law, and contract sign newly without consideration. In
these 3 situations the contract is valid without consideration.
Explanation
1. There is no consideration in gift, because the property must be changed in gift without
consideration, and gift is valid.
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2. If consent is free, and consideration is inadequate, the contract is valid. Exp. I freely sell my
mobile 800 as its real consideration is 2800 and I leave 200 freely. But inadequacy of
consideration may be taken into account by the court whether it was free or not.
Chapter II
Legality of Contract
Section 10 explains what agreement are contract?
Essentials of legally enforceable contract:
1. Free consent of parties.
2. Parties should be competent to contract.
3. Lawful consideration.
4. Lawful Object (20, 24, and 26) explains the void contract.
5. not expressly declared void.
6. (Registration, writing, waitness these are also essentials of legal contract).
If any contract without this any other law so that is also implied. If it is in writing, in presence of witness,
any law relating to the registration of contract.
Section 11. Competency (capacity) contract:
Who are competent to contract:
1. Every person, human being, jurisdiction legal person, such university, organization, physical, ect.
2. Age of majority: It is only in human being. According to law to which he is subject to contract to
which contracting party is the subject.
3. Sound Mind.
4. Not disqualified. Those who are declared insolvent, or by nab act or ect.
Section 11 ( Every person is competent to contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which
he is subject ) .
Sound Mind: section 12 explains this.
Legality of sound mind; for the purpose of contract.
1. Capability of understanding. It is mandatory for.
2. Forming a rational judgment.
A person who is usually unsound mind but occasionally because of medicine he is sound mind he is not able
on that time, he may make contract when he is on sound mind and it is said Lucid Interval (on sound mind)
A person who is usually sound mind and occasionally unsound mind, can not make contract when he is
unsound mind.
Consent: Section 13.
Meeting of mind, things on same subject. Free consent was the first requirement of a legal contract. And
consent is defined, an agreement :
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a) On same thing.
b) In the same sense.
If it is defeated than no contract is void, and agreement is not done.
Free Consent: Section 14.
Consent is said to be free when it is not caused by Coercion, Influence Undue, Fraud, Misrepresentation,
and Mistake. Then it is free consent if not then the consent is not free.
Coercion: section 15.
Coercion is duress, pressurizing some body; it might be mental pressure (to threat) or physical pressure. It is
consent which is in relation to contract not to criminal, or in shape of confining some body, or kidnapping,
or ect.
Threat: committing any thing forbidden in PPC. If the contract is done in coercion it is not free consent, if it
is not free consent. It is not legal contract.
Explanation : it is immaterial whether the PPC is or is not in force in the place where the coercion is
employed.
A on board an English ship on the high seas, causes B to enter an agreement by an act amounting to criminal
intimidation under the PPC.
Undue Influence: section 16.
For the advantage of oneself, for own benefit. Not according to influence. Using the influence which
he accept the contract according to oneself. It is abuse of natural influence. Forms of undue influence.:
1. to dominate will of other.
2. To obtain undue advantage.
Being in a position to dominate the will of another ;
1. Apparent authority. It means visible like father, son husband, wife, doctor , patient.
2. Fiduciary relation. ( relation with confidence + trust , such banks )
3. Feebleness or weakness of body or mind.
In the above conditions one can use undue influence to another.
Rule of Evidence: Unconscionable : not understood , like one sell some thing 400 and real cost is 4000. so
the burden of proof is on the person who is in the position to dominate the will of another. It is also
mentioned in Qanooni Shahadat 1984 Art 127.
Fraud : Section 17.
Section 25 of PPC defines fraud and it is fraud related to criminal fraud, and here is related with contract.
Fraud is opposite to trust, honesty , reliable, fair , faithful, loyal , ect.
In fraud intention is there as explained in section 17 with intent to deceive another.
Kinds of Fraud
1. suggestion, as to a fact which is not true.
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2. Active concealment . there is some defect he conceal that about the quality or ect. And he knows
intentionally that this concealment is there.
3. promise- without intention of performing it.
4. any other act fitted to deceive.
5. any such act or omission as the law specially declares to be fraudulent.
Explanation: Silence is not fraud unless if there is legal duty. If there is no legal duty to speak, silence is
not fraud, but if there is legal duty it is fraud. And it is known by circumstance of the case. And this portion
is declared as unislamic.
Misrepresentation : Section 18.
Representation is to show truly . mis means to hide something, tilling wrong thing to the other party. It
includes:
1. Unwarranted statement.
2. breach of duty without intent to deceive.
3. mistake about the subject matter.
The difference of misrepresentation & fraud is intentionally and misrepresentation is not by intention.
Voidability of agreement without free consent: section 18.
It means limit of voidability of agreement. When consent is caused by three elements Coercion, fraud, or
misrepresentation it is voidable at the option of party whose consent was so caused.
If consent caused by Fraud or misrepresentation to receive consent the party can ask for the
damages. And ask to put him in a position to recover his damages.
Exception : if consent caused by Fraud or misrepresentation , but the fraud was discovered the fraud , it
means he knew it on the time of contract than he can not ask for damages afterward.
Power to set aside contract induced by undue influence : it is upon the court to set aside if the consent
was caused with undue influence.
Mistake : Section 20.
If the parties are in an agreement under a mistake as to opposite of these tow things which are mentioned in
section 13 for the consent contract :
1. same thing.
2. same sense.
The opposite of these tow are a contract by mistake.
Two things include in mistake and make the agreement void :
1. matter of fact.
2. essential to the agreement.
The opinion about the value is not a mistake , exp : the value of mobile is 2000 the other says 2500 so it is
not mistake because it changes.
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The mistake have to be by the both parties.
Mistake of Law: section 21.
The mistake of law can be covered at any time and the contract is valid. And contract is not voidable
because it was caused by a mistake of law enforce in Pakistan. But a mistake as to a law not enforce in
Pakistan has the same effect as mistake to fact. But mistake in a fact the contract is not valid it become void.
Mistake of one party: section 22.
A contract is not voidable (it is valid) merely because it was caused by one of the parties to it being under a
mistake as to a matter of fact.
Haji Abdul Rahman V. Bombay and Persian steam Navigation
(1892) 16, Bom, 561.
The ship was chartered by Haji Abdul Rahman which was to sail from Jeddah on 10th August, 1892, fifteen
days after the Haj, Haji believed that this time is corresponded with the fifteenth day after the Haj. The
defendant had no such belief ad contracted only with respect to the English date viz, 10th August, 1892. Haji
subsequently discovered that their belief was mistaken inasmuch as fifteen days after haj fell on a different
day and on the basis of that they sued the defendants for rectification of the charter party. The court held
that it was a mistake of Haji and plaintiff were not entitled to any relief. And the mistake was from one
party.
Lawful Consideration: Section 23.
The consideration is lawful unless , If it is declared or forbidden by law:
1. The object is lawful if it is not forbidden by law.
2. The objective is unlawful if it would defeat the provision of any law. Exp ( for bail any one
going…..)
3. Fraudulent, involves or implies injury to person or property of other.
4. Court regard it immoral or against public policy.
Immoral such gambling or win shop.
In above the consideration is unlawful, every agreement which the consideration is unlawful is void.
Void Agreement ( Sections 24-30 )
This is explanation of section 10 last part which express, " are not hereby expressly declared to be void ". it
is void if:
1. Consideration & objects unlawful in part. S.24.
Illustration: A promises to superintend, ob behalf of B, a legal manufacture of indigo and an illegal traffic in
other articles. B promises to pay to A a salary of 10,000 rupees a year. The agreement is void, the object of
A's promise and the consideration for B's promise being in part unlawful.
It is expressly declared by law as void.
Section 25. Explained in Page 11 with details.
2. In restrain of marriage. Section 26, " Agreement in restrain of marriage is void" .
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3. in restrain of trade. Section 27 explains this point:
if any one wants to trade no one by agreement restrain him from doing. It is his fundamental right under
Article 18 of Constitution of Pakistan but there is an exception regarding the restrain of trade, " saving of
agreement not to carry on bossiness of which goodwill is sold (good will such trade mark like PEPSI, Coca
Cola, ect) for the safety of trade mark which has good will and restrain of kind of trade, profession and
business is void.
4. in restrain of legal proceeding. Section 28. if any agreement which any party restrict absolutely
from enforcing his rights under or in respect of any contract , by the usual legal proceedings in
ordinary tribunals or which limit the time is void.
Exp : not to go to court if any thing happened.
Exception 1. It refer that arbitration is not void. Their decision is called as Award. And court will enforce its
as the legal decision.
Exception 2. Saving of contract to refer question that have already arisen.
5. Agreement void for uncertainty. Section 29. The agreement which its mean is not certain or
capable of being made certain is void.
A agrees to sell to B a hundred tons of oil. There is nothing whatever to show what kind of oil was intended.
The agreement is void for uncertainty.
6. by way of wager ; section 30. Agreement by way of wager is void, and suit can not be brought to
the court for recovering anything alleged to be won. Or any uncertain even on which any wager
is made.
Exception: in favour of certain price for horse racing. And also section 294-A of PPC not affected.
CHAPTER III
CONTIGENT CONTRACT
In Contingent contract the contract is valid but there are conditions in the contract. Exp: pay advance, so
there is no illegality in that. It depends upon some conditions. It is related to performance.
Section 31-36 related to this topic.
Section 31: Contingent contract is a contract to do or not to do something, if some event collateral to such
contract, does or does not happen.
All insurance contracts are contingent contracts. Contingent contract depends upon the act of the party. Exp:
A contracts to pay B 10000 if B's house is burnt. This is a contingent contract.
Section 32. Enforcement of contracts contingent on an event happening. If a contract is to do or not to do
any thing uncertain in future it is not enforceable by law unless that event has happened. Illustration: A
makes a contract with B to buy B's house if A survives C. this contract cannot be enforceable by law unless
and until C dies in A's lifetime.
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Section 33. Enforcement of contract on an event not happening. Contract to do or not to do anything if
uncertain future event does not happened and can be enforced when the happening of that event becomes
impossible , and not before.
A agrees to pay B a sum of money, if a certain ship does not returned. The ship is sunk. The contract can be
enforced when the ship sinks.
Section 34. Dependent upon human conduct.
A agrees to pay B a sum of money if B marries C. C marries D. he marriage of B to C must now be
considered impossible, although it is possible that D may die and that C may afterwards marry B.
Section 35. Dependent upon fixed time.
A promises to pay B a sum of money if a certain ship returns within a year. The contract may be enforced if
the ship returns within the year, and becomes void if the ship is burnt within the year.
Section 36. Dependent upon impossible events.
Even the impossibility of event is known or not to the other parties to the agreement at the time when it is
made. A aggress to pay B 1000, if two straight lines enclose a space.
CHAPTER III
DISCHARGE OF CONTRACT
When the contract has been made the object should be fulfill by the action of the parties, when they
act liabilities are over so when liabilities is only no the discharge.
Discharge of contract:
1. Performance of the party.
2. breach ( violets the contract )
3. By agreement.
4. by impossibility ( it is to finish the subject matter ) and could be as natural disaster , so the
obligation of contract will be ended,
From here upward all sections are related to the discharge of contract.
CHAPTER IV
DISCHARGE BY PROFORMANCE
Section. 37: Obligation of parties; what are the obligations of the parties for the performance? Two things
are made when they gain obligation:
1. perform
2. offer to perform ( tender of performance )
" The parties to a contract must either perform, or offer to perform their respective promises unless such
performance is dispensed ( to leave) with or excused under the provision of this act , promises bind the
representatives of the promisor in the case of the death of such promisors before performance, unless a
contrary intention appears from the contract".
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Section. 38: What shall be the effect of refusal to accept offer of performance? By whom contract must be
performed? See for more detail section 38 provision.
Every such offer must fulfill the following conditions: (Perimeters for rejection :
1. Tender of performance must be unconditional.
2. It must be made at proper time and place.
3. The person should have reasonable opportunity.
4. Person should be able and willing.
Section. 40. Person by whom promise is to be performed?
If the nature of the case was such that the contract should be performed by the promisor himself, then such
promise must be performed by the promisor and no one else. And the permisior may employ a competent
person to perform it as well.
Section. 41. Effect of accepting performance from third person
If the performance is accepted from the third person, then the peromisee can not deny or refuse to perform
that.
Section. 42. Devolution of Joint Liabilities (Duties)
Devolution means transfer. When tow or more person have made join promise then, unless a contrary
intention appears by the contract, all such person during their joint lives, and after the death of any of them
or representative jointly with the survivor or survivors , and after the death of all , the representative of all
jointly , must fulfill the promise.
In this section the obligation to perform the promise of the promisor devolves jointly on all his
representatives and on the death of one of them, his heirs are not discharge but take their place with
reference to the liability. And an implied contract amongst them to contribute equally toward the
performance of the joint promise.
Section 45.Devolution of Joint rights
When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears
from the contract, the right to claim performance rests, as between him and them, with them during their
joint lives, and, after the death of any of them, with the representative of such deceased person jointly with
the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.
Section 46.Time and place for performance: in this topic section 46-50.
Where the agreement between the parties did not specify the date or the period, within which the contract
was to be performed, it was required to be performed within a reasonable time.
These are rules:
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1. Time not fixed how it would be performed? Without application (tilling) by promise, and no time is
fixed, the engagement must be performed within a reasonable time. And reason time is the matter of
fact which could be changed from case to case. Sec.46.
2. Time is specified, then the usual business time, exp: up to 5:00 p.m. so the performance performed at
this usual business time. Sec. 47.
Exp: A promises to deliver goods at B's warehouse on the 1 st January. On that day A brings the goods to B's
warehouse, but after the usual hours for closing it, and they are not received. A has not performed his
promise.
3. Date and time specified. Then specify place and within usual working hours (the limitations is
within the business hours) sec 48.
4. No fixed place; so for performance of promise of such reasonable place and usual working place
should be performed. Sec 49.
5. Time & manner of performance; for such performance which is made in any manner or at any time
which promise prescribes or sanctions. Exp; to provide the items in my shop so he should deliver all
goods in his shop.
Two small things include in this two kind so contract (CIF contract, means Cost, Insurance, Freat). And BL
Bill of lading, after shipping the luggage and BL of is constrictive delivery to buyer.
Performance of reciprocal promises
Reciprocal: The contract which make consideration for each other. (Mutual)
1. Opposite party ready & willing: S. 51. Promisor is not bound to perform in reciprocal promises
unless the opposite party ready and willing to perform in his reciprocal promise. Exp: A and B
contract that A shall deliver goods to B to be paid for by B on delivery. A need not deliver the
goods, unless B is ready and willing to pay for the goods on delivery.
2. Order of Performance; if it is expressly fixed by the contract. S.52. if the order is expressly fixed by
the contract in reciprocal shall be performed by that order, where the order is not expressly fixed by
the contract, then by order which the nature of the transaction requires. Exp: give advance then it
would be loaded. Or for loading sugar the truck should be ready.
3. Liability of party preventing performance. S.53. if any party prevents performance in reciprocal
contract then the liability of it is that contract becomes voidable at the option of the party, and he is
entitled for every compensation and any loss.
4. Effect of one party default. S.54; this default is due to some reason not due to refusal, default is
while performing and refusal from very beginning. So if any party has default during the
performance of contract he should give compensation for any loss which other party may sustain
from non performance of the contract.
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Illustration: A hires B's ship to take in and convey, from Karachi to the Mauritius, a cargo to be provided by
A, B receiving a certain freight for its conveyance. A does not provide any cargo for the ship. A cannot
claim the performance of B's promise, and must make compensation to B for the loss which B sustains by
the non-performance of the contract.
5. Time for performance of reciprocal contract. S.55; what is the effect of a failure to perform at fix
time in reciprocal contract? Three rules mentioned in this section :
1. Contract becomes voidable if time is necessary element of contract.
2. If time is not necessary then compensation for the loss should be paid.
3. if performance is accepted at other then the agreed time notice for the compensation ( without saying
him the compensation and accept it beyond time ) then the compensation can not be taken from him.
DISCHARGE BY IMPOSSIBILITY
Doctrine of Frustration: related provision 56.
The contract is frustrated, to finish the subject matter and impossibility may be from natural disaster or the
obligation of contract comes to an end. And it is related to force Majeure as will and this act, the things
which is not under the control of parties. Such disaster is called Force Majeure. Frustration means " the
unforeseen termination of a contract as a result of an event that either renders its performance impossible or
illegal or prevents its main purpose from being achieved". Two types of Frustration
1. From very beginning, the contract to do an act impossible in itself.
2. Subsequently; or change of circumstance, by reason of some event, or by unlawful such act of
parliament.
And compensation should be paid for the non performance of act known to be impossible or unlawful.
Illustrations:
(a) A agrees with B to discover treasure by magic. The agreement is void, from the beginning.
(b) A and B contract to marry each other. Before the time fixed for the marriage. A goes mad. The
contract is void, because of circumstances.
(c) A contracts to take in cargo for B at a foreign port. A's government afterwards declares war against
the country in which the port is situated. The contract becomes void when war is declared.
Intervention of war.
Few specific grounds of frustration
1. Destruction of subject matter.
2. Change of circumstances.
3. Non occurrence of expected event.
4. Death or incapacity of party.
5. Government or legislative intervention.
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6. Intervention of war.
Effect of Frustration
1. Frustration should not be self induced.
2. Frustration operates automatically.
3. Adjustment of Rights.
Some Case of Frustration (impossibility of performance)
The Julia
Comptoird ' Archat V Luis de Ridder
(1949) AC 293
Argentine & Belgium two parties, it is concerning frustration. Parties they were from Argentine seller sold
rye, it was to be transported from Argentine to Anturep (Belgium) port, in 1940 contracted. It was (CIF
contract) and the bill was sent by name of bill of lading. War started and Germany occupied the Anturep, it
was frustrated. Due to the war the adventure was not possible done, and liabilities of both parties came into
an end.
Czyarnokov V Rolimpex
(1979) AC, 351
Polish sugar was to be exported to a company in England (Rolimpex) when the consignment started, so
much rain started in Poland and sugar became less, the Parliament through their legislative passed a bill that
no sugar will be exported from Poland to other countries. So it became unlawful due to the act of
parliament, and it became impossible and frustrated.
Krell V Henry
(1903) 2 KB 740, CA
In this case the defendant agreed to hire from the plaintiff a flat for June 26 and 27, on which days it had
been announced that the coronation procession would pass along that place. A part of the rent was paid in
advance. But the procession having been cancelled owing to the King's illness, the defendant refused to pay
the balance. And the contract Frustrated and the liabilities of both party finished.
Restoration of Right (Adjustment of Rights) S.65
When an agreement becomes void any person who has received any advantage under such agreement or
contract is bound to restore, or make compensation for it to the person from whom he received it. Exp: A
pays B 1000 rupees in consideration of B's promising to marry C, A's daughter. C is dead at the time of the
promise. The agreement is void, but B must repay A the 1000 rupees.
The section does not apply to the contract which is known as void from beginning.
Section. 57: Reciprocal Promise
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Reciprocal promise to do one thing legal and other thing illegal. This is a promise by two sides for each
other. If one side is legal and other is illegal. The legal contract will be performed.
A-------------B to sell
opium, this X
B------------- A to sell Sugar, this ok
This section is related with section 24, but in S.24 it is only one contract and here are two side
contracts. There just A--------B. Agreement is void if Object and consideration is unlawful .
Section.59: Alternative Promise
It is also such S.57, here one branch of contract is illegal , the legal branch will be enforced. And illegal
branch will be void. Exp: A and B agrees that A shall pay B 1,000 rupess, for which B afterwards deliver to
A either rice or Smuggled opium. This is valid contract to deliver rice and void agreement to deliver Opium.
Appropriation of Payment
Discharge of performance: In loan : Sections 59-61 deal with this topic. They are all related to the loan
contract. To take loan from bank, and they are several loans, upon returning the loan, the manager will
discharge it as it is directed by the person. This is his right, if he indicates that.
Section 59. Application of payment where debt to be discharged
Appropriation by debtor: if the debtor owes several distinct debts to the same creditor and makes
payment, he has right to request the creditor to apply the payment to the discharge of some particular debt.
And he can request by tow ways: either with express intimation , or under circumstances imply that, this
discharge is for particular debt. And payment should be done accordingly.
Illustration: A owes to B, among other debts, 1,000 rupees upon a promissory note, which falls due on the
1st June. He owes B no other debt of that amount. On the 1 st June A pays to B 1,000 rupees. They payment
is to be applied to the discharge of the promissory note. It is under circumstances.
Section 60. Application of payment, where debt to be discharge is not indicated
Appropriation by Creditor: if debtor did not mentioned or there were not other circumstances to which
debt to be applied, the creditor may apply it at his discretion to any lawful debt, he may use it in payment of
time-barred out debt or in payment of a debt which carries simple or lesser interest.
Section 61. Application of payment , where neither party appropriates
Appropriation by law: where neither parties make an appropriation. In such a situation the law gets the
right to appropriate the payment and law prefers to wipe out the debts in the order of time in which they are
incurred. So in this section they payment should be according to order of time. If they are all in same date
then discharge of such debt proportionately.
DISCHARGE BY AGREEMENT
Section 62: Effect of novation, rescission and alternation of contract
"If the parties to a contract agree to substitute a news contract for it, or to rescind or alter it, the original
contract need not be performed".
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1. Novation: New, Substantiation of old contract (when old contract is not acted) with news contract, by
agreement, when all parties agree upon this. The term novation implies that there being a contract in
existence, some new contract has been substituted for it resulting in discharge of the old contract.
Substitution of new contract is the core of novation. Novation by two types:
1. Parties can remain same.
2. Parties can make news contract, by adding parties, or alteration of the provisions of old
contract. A------B -------- C (he is news party). A----B for news but the provisions of deed are
altered.
Certain Essentials of novation:
1. Previous valid contract & lawful.
2. Agreement of all the parties.
3. Extinguishment of old contract.
4. Validity of new contract.
Recession: from rescind to cancel , or to abrogate completely. The effect of these three is that the original
contract breaches and need not be performed.
Illustrations: (a) A owes money to B under a contract. It is agreed between A, B and C that B shall
thenceforth accept C as his debtor, instead of A, the old debt of A to B is at an end, and a news debt from C
to B has been contracted. (Novation)
(b) A owes B 10,000 rupees, A enters into an arrangement with B and gives B a mortgage of his (A's) estate
for 5,000 rupees in place of the debt of 10,000. This is a news contract and extinguishes the old. (Change in
provision of contract)
2. Remission
Sec. 63: promise may dispense( leave) with or remit( reduce) performance of promise
Every promisee can:
1. Dispense with.
2. Remit, wholly or in part.
3. Extend the time. (Extension of time)
4. Accept any other satisfaction.
This is also discharge of contract by agreement.
3. Restoration of benefit in case of voidable contract
Section 64. Consequences of rescission of voidable contract
"When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform
any promise therein contained in which he is promisor. The party rescinding a voidable contract shall, if he
has received any benefit there under from another party to such contract, restore such benefit, so far as may
be, to the person from whom it was received".
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Whenever one party to a contract has the option of annulling it, the contract is voidable; and when he
makes use of that option the agreement becomes void. Section 2, sub-section (i) defined voidable contract.
And this act we have three kinds of Voidable contract:
Section 19. Initial Voidable Contract.
Section 19 A, 39, 53, 55 are subsequently Voidable contract. And restoration possible in these four
section and not in initial voidable contract.
Section 66. Mode of communicating or revoking rescission of voidable contract- the rescission of
voidable contract may be communicated or revoked in same manner as apply to communication and
revocation of proposal.
Interdependent Promises
Section 67. Effects of neglect of promisee to afford promisor reasonable facilities for performance; if
any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his
promise, the promisor is excused by such neglect or refusal as to any non-performance caused thereby.
DISCHARGE BY BREACH
Section 39: Effect of refusal (breach) of party to perform promise wholly
Refusal of a part occurs in two ways:
1. Refusal to perform.
2. Disabled himself from performance.
Disabled: not because of any circumstance but due to own fault.
If he accepts his acquiescence (accept the breach silently) continuance.
Consequences (effect) of breach
S.73: compensation for loss or damage caused by breach of contract
When a contract broken , the party who suffered take compensation by two ways:
1. compensation presently which naturally arose (a part of contract)
2. mentioned in contract, at the time of making the contract , mentioned.
Remote and indirect losses are not compensated.
Compensation for quasi contract: he is also entitled to receive the same compensation from the party in
default, as if such person had contracted to discharge it and had broken his contract.
Explanation: mitigating circumstances should be kept in mind. Mitigation of losses- reduce of losses.
Illustrations: a, b, g, n are in books refer to them.
S.74: Compensation for breach of contract by way of penalty
This is by penalty, party may agree if the contract is breached so the compensation is 1 lak example, so the
law can not go beyond and contract is valid so the compensation will not be given for damage he can just
take the amount mentioned in contract.
Explanation: the increase of interest will also be included in the penalty.
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Exception: if any person inter into any bail-bond, recognizance, or other instrument of same nature , any
duty which the public are interested, he shall be liable, upon breach the whom sum mentioned therein, and
can not be reduced.
S. 75: Party rightfully rescinding contract entitled to compensation
It is legal right of a party to rescind the contract. So a person who rescinds a contract is entitled to
compensation for any damage which he has sustained through the non-fulfillment of the contract.
Illustration has been mentioned in book page 160.
CHAPTER V
QUASI CONTRACT
Sections 68-72 includes this topic . Quasi contract is resembling contract (like contract) many obligation
arise but there is no real contract, exp; taking right from father.
S. 68: Claim for necessaries supplied to person incapable of contracting or on his account.
Incapable of contracting : is explained in section 11, legal bound to maintain, son, guardian, trust, ect. If a
person is in capable , or legally bound to support other is entitled to be reimbursed from the property of such
incapable person.
Supply of necessaries ; in two conditions:
1. incapable of contracting, it is the person whom the suit is brought .
2. Legally bound to support.
This section deals exhaustively with liability for tings supplied or delivered to a minor. The general rule is
that a contract by a minor is absolutely void and unenforceable. It can not be even made valid by
confirmation or ratification of his attaining majority.
Necessaries : include everything necessary to maintain an infant ( minor) in the state, station or degree of
life in which he is , the word necessaries is not confined to goods. It can include other things such as good
teaching and instruction where by the minor may profit afterwards.
Illustration: (a) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitle to be
reimbursed ( to pay back) from B's property.
(b) A supplies the wife and children of B, a lunatic with necessaries suitable to their condition in life. A is
entitle to be reimbursed from B's property.
S.69: Payment by interest person
Reimbursement of person paying money due by another in payment of which he is interest:
1. interested in payment.
2. Legalment only.
A person who is interestingly paid of money of other who is legally bound to pay he is entitled to be
reimbursed by the other party.
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S. 70: Liability to pay for non-gratuitous act
A person who does :
1. Lawful act.
2. Non-gratuitous.
3. Benefit enjoyed by another.
He is supposed to resemble, and make compensation to the former in respect of or to restore which is
delivered.
And this should not be done voluntarily, if is such then no resembling.
Exp: A saves B's property from fire. A is not entitle to compensation from B, if the circumstances show that
he intended to act gratuitously.
S.71: Responsibility of finder of good
Bailee: give motorbike to any one for repairing he is bailee.
Bailee: is temporary position of any thing, so the law forces some responsibility to finder of good who takes
the good into his custody. There is no contract but he should be responsible for that. He is responsible as
Bailee.
S. 72: Liability of person to whom is paid or thing delivered by mistake or coercion
Their liabilities are that they have to return that thing or repay it.
Illustration: A and B jointly owe 1000 rupees to C. A alone pay the amount to C and B, knot knowing this
fact, pays 100 rupees over again to C. C is bound to repay the amount to B.
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Partnership Act
Introduction of Partnership
For getting money now a day either a person has to make a firm or a company. The people who join
hands in business and make a firm, they are partners. And when they register their firm it is partnership. A
legal mechanism for registration of a firm is use of partnership.
Definition of partnership
"Is a voluntary association of two or more persons, who contribute money, property, time, care or
skill to carry on, as co-owners, a lawful business for profit and to share the profits and losses of the
business".
"An association of two or more persons who carry on as co-owners, a business for profit."
Section 4. of Partnership defines it as, "is the relation between persons who have agreed to share the
profits of a business carried on by all or any of them acting for all." Here in this definition four basic
features of partnership is mentioned: agreement, business, share of profit, management.
Elements
1. Distribution of profit: it is according to the agreement. If no agreement then equally profits are
distributed.
2. Management : every partners take part in the management of the firm. According to their
experience. The senior will be supervisor.
3. Legal entity : the partnership has no legal entity separately from its members. The rights1 and
liabilities 2of a firm are the rights and liabilities of the partners.
4.Parnership deed / written contract : a written agreement is called partnership deed, in partnership
deed name, nature, place, amount, address of partners, duration, ratio of profit, loans, rate of interest, rights,
duties, libilites of partners, and any other provision to prevent any future misunderstanding and dispute
should be written and explained in the deed.
5. Business / Enterprises: Partners must agree that they have to carry on a business, if no business
exist no partnership exist.
6.Principle of Agency : each partner acts as an agent of other partners of the firm.
7. Mutual good faith: partnership is based on mutual confidence and trust of the partners. It is
Fiduciary relations of partners. Partners must be honest to one another; no secret profit should be there.
8. Unlimited Liabilities: in case of firm's debt the liabilities of all partners are unlimited. All are
responsible collectively or personally for the debt.
9. Share in capital: capital is contributed according to agreement; no necessary to be the capital
equally, it may vary from partner to partner.
1
2
‫ك‬. Legal Obligation.
‫ك‬. an interest recognized and protected by law.
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10. Transfer of shares: can not transfer his share without the consent of all other partners. It is not
freely transferable.
11. Registration of Partnership: legal formalities. Registration of a company is compulsory and firm
is optional.
Classification of Partnership
1. General Partnership: is created for the general conduct of a particular kind of a business, such as
hardware business. Where the nature of business is not particularized.
2. Particular partnership: when a partnership is formed to do a particular business or for a particular period
is called particular partnership. S.8. A person may become a partner with another person in particular
adventures or undertakings. The rule of particularization is that where one particularize or specific
something. If they specify the nature of business it is particular. Example agreement to buy and sell Jewels.
3. Partnership-at-will: is one for which no fixed duration has been agreed. Any partner may end the
partnership at any time provided that he gives notice to his intention to do so other partners. According to
section 7, it is where no provision is made by contract between the partners for the duration of their
partnership or for the determination of their partnership. It is partnership-at-will.
4. Limited Partnership: it is a partnership with the limitation references to amount, nature of business or
with amount of profit. And in this one or more partners responsible for all liabilities. And some partners
they are not under any liabilities. Exp: Agreement to export up to benefit of 1 Million, or export sugar till
the shortage finishes.
5. Partnership for fixed time: when the duration or time of partnership is fixed it is called partnership for the
fixed term.
6. Trading Partnership: it is organized for the purpose of buying and selling such as a firm engaged in trail
grocery business.
7. Non-trading partnership: is one organized for a purpose other then engaging in commerce, such as the
practice of law or medicine.
Classification of Partners
1. Active Partners: each partner is concerned to take part in business. Investment + work, it Is also called
working partner.
2. Sleeping / Dormant / non-executive: the one who doesn't take part in the management of the firm. He
brings capital to the firm. He is also liable.
3. Partnership in profit only: who just shares the profit not the loss of the firm . and this particular condition
about the loss must be written in deed.
4. Secrete Partner: a partner whose membership is kept secrete from outsiders. He is liable for debt as
others.
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5. Nominal Partners: one who lends his name and reputation to the firm and does not invest in business. He
does not get shares in profits. He is a partners in they eye of law. His name is just in the book of record for
publicity of the firm development.
6. Partner by Estoppels/ Holding out/ Quasi: doctrine of estoppels it is rule of evidence that prevents a
person from denying the truth of a statement has made or form denying the existence of facts that he has
alleged to exist. Exp: A offer a car to B by 1 Million and it not his car B prepare 1 Million so A can't deny
that offer, it is called Estoppels.
7. Incoming Partner: he is liable only in respect of transaction effected subsequent to his becoming a
partner.
8. Outgoing partner
9. Junior Partner: a young man who has recently become a partner of the firm. He has investment in the
firm. Due to lack of experience and investment he has no major role in decision making.
10. Senior Partner: He is due to experience, age, capability, and other skills pays a major role in the
management.
11. Limited Partner: a partner whose liability is limited. Exp: A person is a partner but he can not invest
more then One Million rupees in the firm, so he is limited partner.
12. Unlimited Partner: whose responsibility is for full extend and no limitation of liability in it.
13. Minor Partner: section 30 of the act explains this.
A person who didn't complete age of 18 years. And he is not competent to contract , so with the consent of
other partners he may e admitted in profit of partnership by an agreement with his guardian.
Registration of partnership
Registration of firm is not compulsory. If the parties so desire they may get their firm register. The
registration of firm is only a proof of the existence of the firm. It does not provide any legal entity to the
firm. But the registration of the partnership has many advantages and disadvantage of non-registration,
which will be explained latter.
Legal Formalities: Procedure of registration
1. Prescribed application form & provide partnership deed.
2. Submission of application.
3. Submission of fee.
4. Grant of registration by registrar. (Certificate)
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Advantages of Registration
Legal
General
1. Protect of rights.
2. Settlement of dispute.
3. Right to sue, by the name of firm.
4. Protection of property.
5. Protection of Creditor.
6. Protection of dealing person.
7. Protection of incoming partner.
1. Gov facilities.
2. Clarity of terms and conditions.
3. Public confidence.
4. More Capital.
5. Business reputation.
6. Use of trade mark.
7. Credit facility.
8. Low tax rate.
9. Legal protection.
10. Protection of retired partner.
Disadvantages of non-registration
Legal
General
1. No Protect of rights.
2. No Settlement of dispute.
3. No Right to sue.
4. No Protection of property.
5. No Protection of Creditor.
6. No Protection of dealing person.
7. No Protection of incoming partner.
1. No Gov facilities.
2. Ambiguity of terms and conditions.
3. No Public confidence.
4. Less Capital.
5. No Business reputation.
6. No trade mark.
7. No Credit facility.
8. High tax rate.
9. No Legal protection.
10. Non Protection of retired partner.
Duties, Liabilities & Rights of Partners
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Duty : is a responsibility imposed by law. It include some capacity to do some thing. Duty may include act
or omission.
Obligation: moral responsibility is obligation and legal responsibility is liability.
Power: is capacity to do some function; capacity to use something. The difference is due to application . if
you don't perform it normally no performance, but if you have been given power by law to do it is power if
law gives you to function and you are responsible . Power is a legal discretion to carry out or refrain from
carrying out any act.
Need of determination : What is need of these, for making better system of partnership, it is need to know
these terms and terminologies.
Sources of Right and Duties: law is source of them, convention law ( contract) , customs, usage,
legislation, and precedent.
Rights
1. To take part in business. S.12 (a)
2. To express opinion before the matter. S. 12 (c)
3. To access the firm. S.12 (d)
4. To inspect the book. S.12 (d)
5. To copy any book of the firm. S. 12 (d)
6. To share equally the profits. S.13 (b)
7. To interest on the capital. S.13 (c)
8. To get profit of surplus investment. S.13 (d)
9. To be indemnified by the firm in respect of payment. S.13 (e)
10. To act in emergency.
11. To give consent. S.31 (1)
12. To retire. S.32 (1)
13. Right not to be expelled. S. 33 (1)
14. Right of outgoing partner to carry on business. S. 36 (1)
15. To enforce, has right to see the property of the firm.
16. Right to remuneration. S.13 (a)
17. Right to have fulfillment of liabilities of the firm upon the dissolution. S.46
18. Right to have proportionate share in the surplus amount. S.46
19. Right to appoint representative for the fulfillment of liability. S.46
20. Right of continuation of collective liability after dissolution. S.47.
Duties
1. To carry on the business of the firm to the common advantage. S.9
2. To be just and faithful. S.9
3. To rendure true account. S.9
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4. To provide information of all the things. S.9
5. To indemnify for the loss caused by fraud. S.10
6. To take part in conduct of business. S.12 (a)
7. To attend diligently. S.12 (b)
8. To share equally the losses sustained by firm. S.13 (b)
9. To indemnify the loss caused by willful neglect. S.13(f)
10. To use firm's property for the purpose of business. S.15
11. To account for personal profit. S 16.
12. To pay the personal profit to the firm. S.16 (a)
13. To account for the profit made as same nature of the firm. S.16 (b)
14. To be liable individually and jointly with the other partners. S. 25
15. Duty not to transfer his rights. S.29.
Liabilities
1. Bound to attend diligently in the conduct of business.
2. Every partner individually and jointly liabilities to third parties for all the acts of the firm. S.25.
3. Liability of the form for the wrongful acts of the partners. S.26.
4. Liability of firm for misapplication of partner. S.27
5. Liability of retiring partners. He is liability for all the debts of the firm before his retirement.
Relation of Partners to third parties. S.18.
Analysis of this section is that partner is to be agent of the firm.
Subject to the provision of this act: is what ever contain in this act, it will be optionalized.
May provision of act, can not go against this: means it is upper than the consent of the party. The party can
not inter any thing which is against this act.
Not with standing: this act and provision can not work.
Contract of agency we have two things in it:
1. Principle.
2. Agent
For the purpose of the business every partner is the agent of the other. Not for any other objects, he is
agent of the firm, for the liabilities of the firm. This section creating a relations of partner with inter agent.
And for this agent there are certainly of powers which are expresses in the contract of agency. If agent is
doing an act which is not authorized under this act it is called Ultra Vires (beyond the allocated power)
Section 19 : deals with implied authority or power as partner as agent of the firm . Implied power.
Here are certain conditions which do not authorize the agent; and strict the power of agent:
a) A partner can not submit any issue to the arbitration3.
b) He can not open bank account by his name.
3
‫ك‬.alternative dispute mechanize. Extra judicial settlement.
29
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c) He can not compromise and relinquish.
d) He can not take the case back from the court.
e) Admitation of liability that firm can not do that.
f) Acquzation of the firm
g) Can never transfer firm property. He should have some authorization.
h) Enter into partnership on behalf of the firm.
Doctrine of Holding out
The concept of Holding out, Section 28, explains this.
1. Representation
1. Oral / written statement.
2. Conduct.
3. Knowngly permits other to do it.
2. To be a partner ( this is a message to convey ) but actually he is not a partner.
3. Credit is given on the basis of this.
X
A---------------------P The fact is A is not a partner.
C ( represent )
D ( Depute)
P is responsible for the statement of A so P is liable to that , if A fraud C is holding out. Saying something
which is not exists. C will recover from P and C has legal right to ask from P, if P has answered C
negatively ( Conformation was negative) so C is responsible for it himself.
Second situation: D expires but his name is still in the firm book of record , so one on this assumption
inters into contract with the firm . the legal heirs of D is not responsible for the fraud.
A
B C D ------but D died
Firm
Section 29: Transfer of interest: easy transferability in company. The transfer of interest in the partnership
is with the consent of other partners. If a partner transfers his income to other he will be transferee, he does
not enjoy other rights of partner. He is not eligible for other rights.
It deals with the situation when the firm dissolves voluntarily or legally.
1. He is not entitled to manage.
2. He is not authorized to discharge.
3. He can not transfer.
4. He can not issue check.
5. He can not inter to contract.
6. Can not check the record.
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Status of Minor for profit in partnership. S. 30
(1)
1. Minor may not be a partner, only he is for the sake of benefit , and can not inter and be part of
partnership.
2. who is minor, it is according to law.
3. Minor may not be in any relationship with partners.
(2) Methods of the consent of parties;
Written instrument is not important; it can be expressed for the admitting in partnership for benefit. . "As
may be agreed upon" has three things in it: written, oral or implied. He is only authorized to check and
inspect.
(3) His property may be liable (Extend of liability) " Liability is not personal in minor" His share can be
attached. His portion of benefit is liable not his personality. If other partners arrested the minor can not be
arrest for any liabilities.
(4) If firm wants to give the compensation of any fraud, and 10 % of profit goes in compensation, so the
minor can not go to court for that profit. He has no right to sue the rest of the partner for his share of profit
which has been given to the compensation of any fraud.
Voluntary dissolution : the power of dissolution may be acted by all partner by notice. The court will decide
for the share.
(5) If minor become major; Tow things are there:
After obtaining age of 18 years , in six months , he should give a general notice for the electing the partner
or not. After six months he will be a partner, and if he does not give the notice.
(6) If any one denies the statues of minor. It deals with the burden of proof, who will prove it, it is on the
person who he denies it, and he should prove it.
Dissolution of Partnership
S. 39: gives title to the process, dissolution, liquidation, winding up, these three are synonyms but
technically they are different, liquidation is different but two others are interchangeable with each other in
the contest of partnership.
Liquidation: is a process through which the dissolution is achieved.
Shapes of Dissolution
1. Through agreement.
2. Notice.
3. Compulsory.
4. Contingent.
5. Court.
Why dissolution ? many reason of dissolution of firm , one of them is if it has been given the fixed age so it
would be dissolved such as in fixed time partnership.
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Compulsory: law has prescribed some conditions which should not be violated , and if such so it should be
compulsory dissolved.
Court: May further take two shapes; voluntary, and compulsory. If the partners they go to court for
liquidation it is voluntarily dissolved. If court is of the view in the application of a partners or the third party
that there is fraud in liquidation so it is dissolved.
S. 40: Dissolution of firm by agreement
May be: it is not the matter of compulsation. Two possibilities :
1. May be a contract: one provison in the partnership deed about the dissolution.
2. Or all the partners at any time they may finish the firm. At the surplus of the moment without any
thing in mind and in writing in the deed, and this is the consent of the partners.
S. 41: Compulsory dissolution
a) insolvency of the partners.
b) Subsequent in legality, by the time passed that things become unlawful or illegal. Subsection : one
of undertaken or adventure should not affect all the adventures. The firm will continue.
S. 42: Dissolution by the Contingency
The performance and non performance is related to any event or condition when the winding up is related to
any event it is called dissolution by contingent. These are contingencies;
1) By expiry of particular time.
2) Particular partnership for a certain objectives, when it is achieved , it is time of its dissolution.
3) By the death of a partner.
4) Insolvency of a partner ( the last two are the matter of choice if it is written in deed)
S. 43: Dissolution by notice of partnership-at-will
If partnership-at-will any partner may serve the notice to the partner for the dissolution:
1) By his notice at the date.
2) If date not mentioned then by receiving the time of notice.
S. 44: Dissolution of partnership by Court
Nature of Remedy: he has to suite a partner to the court.
Power of court: is discretionary , it is known form may because it is the will of the court. And the ground of
power of court is in the ground of just and equitable ground , this ground is that any other ground which is
not mentioned and court will see that this is just and equitable . And this ground is not mentioned in the law.
Locus Standi of petitioner: who is coming to the court for winding up if he is unsound mind, the case should
brought by the third party if he is unsound, and as well if the court entitle him incapacity , other then him
will come to wind up the firm.
Grounds of dissolution
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a) Unsound mind.
b) Incapacity. Mental or physical.
c) Misconduct- it may take any shape , it is vary bad or fame of firm.
d) Habitual breach of contract/ obligations.
e) Unauthorized transfare of interest.
f) Loses.
g) Just and equitable ground. It give more power to the court.
Consequences of dissolution of firm
Different modes of dissolution of firms : what are different with compulsory dissolution and under
supervision of the court? One is voluntary the other is compulsory and as the matter of penalty. What will
happen legally and morally what are rights and liabilities after dissolution:
S. 45: Liability for acts of partner done after dissolution
This is the liability of act after dissolution to what extend firm is responsible for the transaction. This section
starts with Notwithstanding : Dispite of fact.
What ever it may be the mode of dissolution. If it is dissolved and notice not given to the public all the
partners are responsible for the transaction as before dissolution. If public notice is given then it is not the
act of firm , it is the act of the partner by himself.
A person who is immune: who dies, insolvent declared, not having knowing to the dealing person as a
partner will be immune from this section.
Any partner can give general notice. Categories C include two persons insider (partner) and outsider or
stake holders. Any stake holders who is knowing they are immune from this.
S. 46: Right of partners to have
It clarify the general rights : rights are here after dissolution:
1. Right to have fulfillment of liabilities of the firm upon the dissolution.
2. Right to have proportionate share in the surplus amount.
3. Right to appoint representative for the fulfillment of liabilities of the firm upon the dissolution.
S. 47: Continuing authority of partners for purpose of winding up
Collective liability will remain continue after dissolution as well. Here are also some right:
Right to bind legally other partner after dissolution or Right of continuation of collective liability after
dissolution.
This section gives a general rule that climax of dissolution . the winding up process does not give authority
to breach executor contracts. So the concept of collective liability continuance till the public notice , and
public notice is given when all the contracts are performed.
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S. 48: Mode of settlement of Account
This is the formal that how the account of the firm settle after winding up?
(a) First priority is to the losses from where ?
1. Liquidated amount.
2. Capital.
3. Individual from the contribution of partner from pocket.
(b) The assists of firm should be used in deficiency in order by these priorities:
1. Debt.
2. Partner ratably.
3. Partner on account of capital.
4. Other remained between the partners.
So first they should fulfill the outsiders , then insiders contractors , then partners, on account of profit and
capital then of any thing remained then amount the partner in the proportions. And it would be considered as
profit.
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P.P.C
Introduction of Penal
A Collection of punishments, PPC is a list of offences which are not permitted to be committed.
Why a person should be punished? Because human being is different in nature, their habits are varying, to
create a balance in the society; we have to follow the law. There should be a sort of check and balance, for
insurance of order and peaceful condition law should be followed. In Islam Hudood are limited and
mentioned for this purpose. Ignorance of law is not excuse. PPC came into force in 1860. it has been
divided into three parts:
1. General principles: Sections 1-76.
2. Doctrine (General Exceptions) 76-106.
3. Rules, definitions, punishments: 109-500.
Definition of Crime and offence
General Principles of Criminal Liabilities
1. intention
Intention or Mens rea technical term it means guilty mind, the basic of mens rea is intention. In Islamic law
intention has been given due importance right from the start. The Quran defined it as Amd in the offence of
murder. And also tradition of prophet “ all acts are determinate by intentions” so without the intention no
criminal liability will be there.
2. Act/ omission
Physical act or Actus Reus, act is defined as a bodily movement. A thought is not an act. Therefore bad
thoughts alone cannot constitute a crime. The following elements should be included in actus Reus; conduct,
the act must lead to the prohibited result, circumstances in which the act takes place such in PPC, S.144 the
existence of accused is an act in unlawful assembly. The act most be voluntarily, and omission is also an
act, a defendant’ s failure to act will result in criminal liability.
3. concurrence
Co-incidence, the physical act and mental state existing at the same time. The intention must coincide in
point of time with the act which causes the actus reus. The defendant must have had the intent necessary for
the crime at the time he committed the act constituting the crime. In addition, the intent must have actuated
the act. Exp: A decides to kill B, while driving to purchase a gun for this purpose; A negligently runs over B
and kills him, Is A guilty of murder? No because no concurrence between intention and act.
4. Harm
5. causation
If the definition of an actus Reus requires the occurrence of certain consequences it is necessary to prove
that it was the conduct of the accused that caused those consequences to occur. In Qatl-i-amd or Qatl-i-khata
it is necessary to prove that the act caused the death. If death came through some other cause then the crime
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is not committed. Causation is called sababiyah in Arabic. Cause + effect. A person is injured and brought
to hospital but staff neglect so they are blamed for this.
6. punishment
7. Legality
CHAPTER I
INTRODUCTION
Extend and application of PPC: S.1-2-3-4-5: the first five sections in this code is introductory provisions,
regard to application of PPC whether offences committed in Pakistan or outside Pakistan. First we should
know about jurisdiction? Authority is associated with the state; state is an entity which is recognized under
international law, and as will jurisdiction which is excises by state defined by international law. Under
international law every state or government can deal with the crime with itself. As a Pakistani we are subject
to the laws of Pakistan whether we are in Pakistan or outside Pakistan or aboard, likewise foreign who are
coming to Pakistan they are not Pakistani but they are under jurisdiction of Pakistan criminal law. Under
PPC and other criminal laws we have extra territorial jurisdiction even crimes which are committed outside,
they can be brought under provisions of PPC. Foreign who are living in Pakistan they are under two laws,
law of Pakistan and as well as their own laws. If a foreign committee an offence which is not an offence
under Pakistani laws but it is offence under his national laws he could be prosecuted there. If a person
committee an offence in India which is offence under PPC as well he could be persecuted in Pakistan this is
extra territorial jurisdiction, if persecution was not possible due to legal procedure then he could be
extradited (handing criminals to the other states) Two option should be there:
1. Prosecuting in the own state.
2. Extraditing to that place where offence has been committed.
Example is case of locker B, an American plane. At last a court was in Netherland and judges from
Scotland.
Through out: what ever in the Federation of Pakistan, constitution explain it 4 provinces, tribal areas and
ect.
Within Pakistan: within those territories which are subject to the jurisdiction of PPC.
Beyond: tribal areas, they are under the federation of Pakistan but they have their own legal system which is
known as FCR, they are subject to special law.
Beyond and without: any citizen of Pakistan or any person in the service of Pakistan in any place without
and beyond Pakistan, or any aircraft, or ship which is registered in Pakistan.
S.2: in this section two things are there:
1. Every person
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2.within Pakistan.
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Every person: is every individual who is subject under PPC. And it has some exception which some people
are immune from this but immunity is up to the limit. They are:
The president, the governor or a province, Foreign Sovereigns, Ambassadors, Alien enemies.
Two principles are laid down here.
1. Nulla Crimen Sine Lege
"No Crime without Legislation" similar "and not other wise for every act or omission contrary to the
provision thereof".
This gives us principle if his act is according to PPC, offences are created by law, we can not obey any thing
which is not existed. Government thinks to make law after every five years. We have to obey the law which
is enforced in state now. If it is not listed as offence then no punishment would be there. "Crime and
punishment is created by law ".
2. Nulla Poena Sine Lege
"No Punishment without Legislation". This is similar to the "Every person shall be liable to punishment
under this code and not otherwise". Offences are the creation of law, so for those offences are also some
punishment. If we ask any one for punishment he will say it should be exemplary punishment, but what is
exemplary punishment it is fixed by law, PPC, no one can change it. Example: punishment of drunken
s.510. It is at the state of intoxication in public place, the punishment of him is twenty four hours, or fine of
thirty rupees or with both. But this is not exemplary punishment but this is a law, this is creation of law, if
we wish to change it we have to enhance it by legislation, as it is fixed by law so it should be followed, what
ever might be his conduct, and this is the maximum punishment which the court can award. And also 30
rupees.
And S. 160 punishment of affray: (to fight in a public place) one month, or fine of hundred rupees or both.
Now it is 3 hundred rupees. No one can change these punishment, any government comes can not change
even the Chief Justice of Pakistan can not change it, if they wish to change it they should go through some
legal procedure, which are legislation which they can change these laws and punishment, who are law
makers.
These two principles are internationally find in every place where write laws are found. Summary of these
two principles: that any one who found to be guilty of those offences they should not go without punishment
they have to be punished. (Punishment and offences are the creation of law)
Within Pakistan is those places which are subject to the legal system of Pakistan, Tribal areas they are under
federation of Pakistan but they are given exemption of applying PPC. And this is different from throughout
Pakistan.
Act can be done directly or indirectly to kill some body it is directly and this is an offence, and if to ask
some body else to kill, this is also contrary to provision of PPC or not? Under PPC who does not act
directly they are also guilty under PPC. Section 109 explains this by the way of abetment under 109 they are
both guilty. In Islamic law it is also Ekrah and Mukrah , the principle of Ekrah is also included in criminal
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liability, in Ekrahi taam , Mukreh is liable to criminal liability. To compile any individual to do any thing if
does not leave any choice according to Emam Abu Hanifa he is liable for Qesas and Mukrah he should be
given Tazeer for fourteen years, if it is not Ekrahi taam then the person who did directly act the is guilty. (
means to acquise him for an offence) and also abetment in PPC, a person guilty within Pakistan by taking
direct action (Mubashratan) and no abetment (Eanat Jurm) if 3 rd person is involved then it is indirect and in
both circumstances they PPC will imply for that. If we look to section 109, there are punishments for both in
Qatle Amad.
S.3: beyond Pakistan: It means which are in the federation of Pakistan but the place in which they are
subject to the special law. Tribal area, because PPC is not applicable in that place, if any one committee any
crime and tribal area and comes to the place where PPC is applicable so he should be given to the political
agent and they have to prosecute him under FCR. But in CrPC there is a rule that any person committed an
offence in any place and got arrested in other place he could be prosecuted in a place where he has been
arrested, S.188 of CrPC explains this. But we have to see because he has committed an offence which is not
subject to the PPC, we wish to prosecute him in a place where we arrest him we have to see first is it
permissible to do so? If yes, then what he did in tribal areas? Did he coast any vote against Malik or agent of
tribal area? If yes, is it an offence under PPC? It might be an offence under FCR but not under PPC, for
which thing he should be prosecuted, S.2 says for those offences which are known under PPC as an offence.
This section says if that act is an offence under PPC then he could be prosecuted in the place where he has
been arrested.
If we say beyond Pakistan as beyond territory of Pakistan then section four will loss its value, we should say
beyond means to the place where special laws are applied and not PPC, tribal areas. Because of inconvince
let he should be persecuted in the place where he committed the offence.
S.4: Extra territorial application: means beyond the territorial limits of Pakistan, in any place,
Afghanistan, India, Iran or England, Bangladesh, because they are not included in territory of Pakistan. If
any crime which is done by Pakistani beyond the territorial limits of Pakistan or any person who is in the
service of Pakistan in outside or any ship which carrying the flag of Pakistan ( registered in Pakistan) or any
aircraft which is registered in Pakistan whether it is Pakistani or not is under this code. Because ship is
Floating Island, if any crime committed there so it is under the PPC.
1. Any citizen of Pakistan, or any person in the service of Pakistan at the time of offence in any
place out of Pakistan.
2. Any ship or aircraft registered in Pakistan wherever it may be.
For protection of ship there should be flag of that country, and wherever will be that ship any one
who is in that ship and committee any offence which is an offence under PPC he would be prosecuted in
Pakistan under PPC.
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CHAPTER II
GENERAL EXPLANATIONS
Section 6-52 (A) it lays down certain guideline which is so important in understanding the other provisions.
This chapter is interpretation clauses. How PPC is to be understood regarding one offence or another.
S.6: lays down a principle for court that there are some exception which should be understood subject to
exception contained in chapter entitled General Exception. These principles are also available in Islam,
Hazrat Umar has not punished the person who was theft at the time of famine, what are the excuses which
explain the exception, and the exception is created by law. Offences should be explained by law we can not
understood, for example qatal amad or khata or ect, the law should explain this and there are some guideline
for that and it is found in Chapter 4. In rules third part of PPC there are first definitions, then illustrations
then punishments.
Shall be understood: the court should understand, the duty is on the court.
Illustrations: a) for a child under 7 years.
b) A police without warrant apprehends Z who has committed murder. Here A is not guilty.
This is called cognizable offences: those offenses which police can arrest the offender without the warrant
of the court. PPC does not explain which cognizable offences are or not. FIR is related to cognizable
offences; police has just 24 hours to keep the offender in his custody and after that magistrate should give
order for his arrest or putting him in the custody. The public servants are immune, because they are not
doing as a criminal intention. If any body else do this he is doing a wrongful confinement, and this is an
offence under PPC, but if police they are not committing offence, they are under law, they have to obey that
law. Every individual can also arrest some one who is criminal and give him to the authority but he should
think it before arrest that what would be the result but it should be the offence which is cognizable offence.
Also individual can arrest those who are proclaim offender (a wanted Criminal) and hand over him to the
authority, if he does such he are not doing any offence. Without these two cases if we arrest any body we
are doing wrongful confinement and it is an offence under PPC.
S.9: This section is the purpose of interpretation of explanation clause. Let every expression understood
uniformly whether it is used once or many times. It should not be interpreted in different manners it should
be understood at one meaning in all Pakistan. Thousands of judges know this same unless law gives
alternative meaning for that.
S.8: Gender: from here the real part of general explanations starts. Normally offences are committed by
human being whether male or female. And law also used the pronoun he or male pronoun but it does not
mean just male. The offense of rape normally in secular law is done by male against female, but according
to Islamic law rape is committed by female as well, as it is pointed in Surahe Yusuf, evidence for that is to
look to the state of violence if the clothes is torn from front side then male is criminal if it is from back side
then it is her who has done that. Look to the signs of violence in the face of acuized, if there was no sign of
violence then it from the both party. So in Islam it can be committed by both male and female. Abortion
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(Esqate haml) it can be also done by female normally, and she is guilty for esqate haml, but now a days it
can be done by male as well. Pronoun may be male or female person, he means she as well, this who so ever
may be an artificial person as well, like university or NGO's.
S.9: Number: For offences number is not important it could be any number of people one, two, hundred,
thousand, or by a group. But there are so offences which they are related to particular number of people if
that number is short then this person can not be accused for that offence. (who so ever does) it refers to
single so it refer to plural as well , it may be do because of many person. The number must be singular or
plural.
Unlawful Assembly :In order to insure that no disturbance is caused to that situation which is already very
critical in the state, government imposes a band on gathering of individual in the public places by imposing
section 144 of CrPC for three days to two months. Whenever this section imposed the gathering should not
in the public place. The Section 144 can be imposed to any threat which cause to the public security. It can
be used for Varity of purposes. It is that stay in door and don't come out in the group of five or more, those
who wishes to come they should come less then five person. And it should be in the public place. And this is
not applicable for religious ceremony, such namz Jenaza, Walema, ect. An offence does not depend upon
the number of criminals, one offence can be committed by one person, or same offence by more persons,
and there are some offences which can be committed in specific number not less than that. S.141 unlawful
Assembly of five or more person is designated an "unlawful assembly", it depends upon the particular
number of persons. If it is less then five it is not unlawful, five is the minimum number. But it is not be
applicable for all purposes, it is applicable for political purposes. And police is has to dispose this assembly,
and it is described in CrPC, by safe, then by shoot, then arm force can come on the road they have two
alternative, if they bring about it is ok if they use force then they can use force as well, shoot in sight order.
S.391 Dacoity the number is here also fixed five or more person conjointly (all of them should be present in
one time, may be they do any work) commit or attempt to commit a robbery. Dacoity can not be from one
person. It is aggregated form of robbery. Theft is by one person in the absence of victim, robbery is
committed in the presence of victim, and it can be committed by one or more but less then five, if it become
five then it is Dacoity
(depravation of property through show of force) These two things are that the
law has expressed the numbers less then that offence can not be committed. In opposite to this S.378
explains the definition of theft. And with robbery this is some thing else as well which is extortion; to
induce some body to hand over some property. It is just because of terrorizing as it is in Urdu (Aghwa
Baraye Tawan) for saving life of some one, even the document of property we give some valuable things.
Dacoity punishment is also more then robbery. There should be two things:
1. Common intention: intention which is common at least to two individual. There should be criminal
intention; we can not make agreement with our self? In term of law there should be two parties or two
people to committee some thing. This is the creation of 34 of PPC.
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2. Common object: the object of that group should be there. This is related to S.149. first we have to prove
that it is unlawful assembly then we can use the principle of common object (as the principle of Umar
(RAH) entire Ahle Yaman) the common object is achieved and all of them should be punished and entire
body is responsible for this, and he is guilty of that offence.
S.10: Man, Woman: the word man denotes a male human being of any age, the word woman denotes a
female human being of any age. (a girl of six years is a woman).
S.11: Person: the word person includes any company or association, or body of persons, whether
incorporated or not. Person includes artificial and juridical persons. Therefore a corporate body ought to be
indicated for criminal acts or omissions of its directors, or authorized agents or servants, whether they
involve men's rea or not. Person in this section, a corporate body or a company shall not be indictable for
offences which can be committed only by a human being or for offences which must be punished with
imprisonment. The offences of cheating under S.420 shall be punished with imprisonment and a company
cannot be persecuted for the offence mandatorily involving a punishment of imprisonment. The word Bank
may be included in the definition of person.
S.12: Public: The word public includes any class of the public or any community. Residents of a particular
locality may come within the term of public, public means gathering of those individual whose existence is
known but the number is unknown, PPC refers to that group which can be distinguish from each other. Exp:
how many non Muslims in Islamabad, and also among Muslims different religious groups. Public in PPC
regards every community not of majority or minority of them, religious freedom, no criticism for any one
for the origin, accept every one without any ground of demerits , Sheya , Sune, Mulsim and non- Muslim
any class, not in any political party just every class of people is included in public. Public is any class living
in any place of Pakistan without any differentiate of color, race, religion, sect, domicile, ect.
S.14: Servant of the State: every public servant is not government servant, the government servant is who
so ever paid by federal or provisional government is servant of state. And all officers or servants continued,
appointed or employed in Pakistan by or under the authority of the central government or any provincial
government.
S.19: Judge: In ordinary life for resolving the problems, judge should be there. Any individual by law who
is authorized he is judge. The word judge under this section is not just the judge of high court or supreme
court, any individual who is authorized by law for the solving the problem of other should act as a judge.
We should look to the subject of that not the title of judge. And also body of persons is empowered by law
to give the judgment, such as benches of two or more judges.
Illustration: A magistrate exercising jurisdiction in respect of a charge on which he has power to sentence
to fine or imprisonment with or without appeal is a judge.
The president of a Municipality or other Local Board when accepting or rejecting nomination papers for
election is judge. A Chairman of the conciliation court or Arbitration Council under Muslim Family laws
ordinance is a judge.
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S. 20: Court of Justice: when judge is acting he is in the court of justice. And judge can not sentence or
conduct in any other place. He should have an office. If he is holding a room he is in judicial proceeding,
judge solving the problem in his house is not in judicial proceeding. Judges should be in a place and that
place should be open to public.
S. 21: Public Servant: it should be studied from book page: 12-17.
S. 22: Movable Property: In Urdu it is (Maleya Jaydad) in law we have different kind of party. But it is
divided into two: immovable, movable property.
Immoveable property can not be stolen or robbed but it can cheat and extortion is possible. Moveable
property is capital of being shifted; it can be stolen as well. If property to be shifted it is tangible existence.
And Movable property divided into two kinds:
1. Corporeal property.
2. Incorporeal property.
Corporeal Property: is property which may be perceived by the senses, in contradistinction to incorporeal
rights, which are not perceivable as obligations of all kinds. That could be visible to our senses. The legal
connection which is an imagination is incorporeal property. So property is substantial in nature, this is
corporeal existence, but the relations which any body has with any property that does not have any
substantial existence we call that connection incorporeal existence, it is just the matter of imagination,
without that legal relationship can not be existed. If we remove this idea incorporeal existence then every
body will deal with one another's property. PPC is concern with moveable corporal immovable property.
Ownership can not be stolen because it does not have any concrete existence of own, why we call it as
offence? Because it is the violation of right which he has on his property. As an agent a person will have
ownership but it is limited. Ownership will give many entitlement. Those rights are not concern in PPC
because they are not stolen. In law not only to property but all the rights to that property is related into that
property. Immovable property includes:
1. Land, tangible and corporeal existence.
2. Rights and benefits it is also included in immovable property.
Movable property can be shift from on place to another and it is substantial in nature. Land and anything
attached to the earth is immovable property such as trees, walls, selling fans, tube lights, ect. But if we
demolish those things such as if we demolish wall then it become moveable property. Tree which are rooted
in the land they are immoveable but if we detach them from earth it become moveable property, it can be
stolen or take away from one place to another. It means there will be permanent immoveable property and
as well as substantial immoveable property.
Every Description: Nature and value of moveable property is not important just if it has real and physical,
substitutive existence is important.
The earth and earth is two different terms. The earth is the part of climate or part of solar system. Earth: is
upper part of the land which contains minerals and which can be detached from the earth. Stone, clay,
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minerals are included in it, it can be detached and can be stolen. The earth is stationary thing it is
immoveable it can be stolen. But any things which are in earth they can be detached and can be stolen and
they can be shifted from one place to another, and it can be included in the definition of property.
S.23-24: Wrongful gain, Wrongful loss, Dishonesty
Criminal intention or mens rea is an important in criminal liability, if criminal intention is absent what ever
acts has been done it is permissible acts and not an offence. And this criminal intention or mens rea is to be
found in section 24. Under PPC criminal dishonest intention is done with wrongful gain to one and
wrongful loss to another person. Any thing which is beneficial to the wrong doer because of his wrongful
conduct that is called wrongful gain, a cheat through cheating get the property of some one else, he is
getting a wrongful gain, a robber, theft, Dacoit they acquire some property but through unlawful means, so
they gain it wrongfully, any thing which is gained through unlawful process is called wrongful gain. Why?
Because they received it through dishonest intention or criminal intention. What would be effect on the
owner of that property, gain of the offender is loss of the owner. If we even look to the definition of theft we
will find it that it is with dishonest intention. The real contained of dishonest intention is that it involves the
use of unlawful mean and loss to one and gain to another. Here just property is concerned not special
moveable or immoveable property.
Title: those facts which constitute our rights. Ownership is the absolute right. Possession is also a title.
Agency involves transfer of right and creation of title not ownership. Use of things legally as an agent but
we should have legally recognized claim for that.
Legally entitled: means that he is recognized to claim the ownership of the property, by the way of agency,
possession or entitlement.
Two things are essential to constitute wrongful gain:
1. Requisition: to acquire property without the consent of owner, cheating, robbery, theft, Dacoity,
concern is not involved illegally transferred. Such as complement with gun point. So he is gaining
wrongful gain and the owner loss wrongful loss of his property. It is illegal from very beginning.
2. Retention- use of property beyond the period which he was authorized by the owner is wrongful
gain. Initially it is lawful but it becomes unlawful after that. Such to give some property to agent and
he does not return it back, he refuses. Such as library. Duration of wrongful depravation is not
necessary. Example: lease after the expiry of date of lease where should the property go? It should
be returned to the owner of the property. If the lease expired and new contract is not made the
retention of possession is unlawful gain for the torrent, and wrongful loss to the owner of the
property.
S.25: Fraudulently
How we deceive? Different means are there. In the case of dishonest the other party was not the part of the
offence but in fraud we victimize him first by his consent and he join that also, if we look to the law of
contract there also we will find that free consent is that it should be free from misrepresentation, fraud, ect.
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The person has been given choice whether to make it contract, or to finish it. The most common offence
which is based in this is the offence of cheating S.415, is giving the definition of cheating. P. Change
Passport to change picture on the place of original picture it is sort of misrepresentation. We are conveying
the fact which is reality. Roll number slip can also be cheated and this is also misrepresentation. We can
cheat by making a false statement. Without use of violence or harming peoples we victims people because
of giving false statement, we are guilty of false conduct. In all cases of cheating we don't use any kind of
arm, force, ect. We are using our tong for giving false, the individual should have to discover all means or
reality for buying any things. There is no violence in Fraud (to represent false as a truth) and unlawful
means should be used, but in fraud we no hurt or physical violence, just it is an impression which can be
made through different ways. If it discovered before cheating it is also cheating because it is attempt for that
offence. It is related with the property. S.415 explains that any property can be gained by the way of
fraudulent conduct or cheating. There should be two things should be there:
1. Means must be unlawful.
2. It should be used to gain wrongful gain for some one and wrongful loss to other.
Holding out in partnership and Puffer is done with the fraudulent conduct. Cheating is not limited to one
person it includes all those person who involved in supporting this. Through a conduct, through a statement
through misrepresentation to fraud it is fraudulently. Cheating is the fact and fraud is the mean to reach that
cheat.
S.26: Reason to believe
Is a common to those situations, where every individual take same opinion without the deferens. It is an
expression which we used in relation to some facts, if those facts exist let us take notice of that and for those
facts let us make opinions, but fact exists and it comes to our knowledge but we don't take any notice of that
fact then we are guilty of negligent for that we have to suffer something. In relation to stolen property we
use this expression that the person had every reason to believe that stolen property had been handed over to
him, the property hand over to him was stolen property, and after it had been taken from his possession, he
would not have to say that he did not have knowledge of that. So reason to believe the facts were not known
to use so we are not guilty of any offence. But if he discovers that it is stolen property or any other civil or
criminal, and had mean to discover but he ignored that then he has to face any risks, and liabilities will be to
him. A person who is has some mental problem he is immune from this, he does not have any thing to
believe, if a person who is sound mind and he is experience with the worldly affairs but still he neglects in
finding the facts, he is blame for some offence, he can not say any thing. The stolen property shows some
times but itself that it is stolen such as low price because the owner sensibly will not sell it with such less
price so it shows that it is stolen property.
S.410 explains stolen property, and S.411 is about dishonestly receiving stolen property: in this section
punishment for the person who receive dishonestly or retain any stolen property, knowing or reason to
believe the same is stolen property he shall be punished with imprisonment of three years or fine or with
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both. Dishonestly (tow things are here: one he takes some property which is not belonging to him, tow: he
buys it with less price market) so this is also includes in criminal intention dishonestly. This is not
punishment for theft the punishment for theft is mentioned in 379-380. How we believe that it is stolen
property? we have to look to the condition of a person who sell it, he does not appear to be the owner of the
jewelry. We have to ask him when he bought if it appear to be new and he says it is he bought it before three
years. The third ways that he sells it ten times less then the market value. In section 411 two essentials are
there:
1. Dishonest receipt or retention of stolen property.
2. Knowledge at the time of receipt that they property was stolen.
S.27: Property in possession of wife, clerk or servant
Doctrine of Vicarious liability: this we will discover in law of tort. (A vicarious liability offence is one in
which a person without personal fault may nevertheless be held vicariously liable for the criminal conduct
of another, usually an employee. It is tort doctrine of respondeat superior.) If any one has an agent and he is
performing the duties which he imposed on him during this he harm someone he is liable by himself but will
the person is also liable? According to this doctrine we make the person also liable who did not cause by
himself any thing to other.
In the case of agent 3 parties involve in this, so he should pay for the harm which his agent causes during
performing those duties which the principle has given him. In some business explosive things happen so the
principle is responsible because this is his business. So here the liability extends. Exp: drivers of university
they make accident, so university is liable. Punishment can not be extended, but liability can be extended in
civil cases. So we have to see two things; first: we should see the relationship of master and agent. Second:
that the damages happened during lawful performance or not? If it was not lawful then it is agent
responsibility not the principle.
So this section is related also with this principle of criminal liability if stolen property was found in
possession of wife, clerk, or servant. Who will be responsible for that? This is an exception to section 411,
because the property was brought by husband, master, or employee. This is a safeguard principle for the
liability of wife, clerk or servant. So we have to see who brought this property. The man who hand over
stolen property to them. This principle is applied in two manners: 1. as vicarious liabilities: husband give
property to his wife, so husband is responsible. 2. Property must be taken from the possession and this
possession may be different, gourd, house, ect, as in Islamic principle (Herz) S.378, it is not necessary that
theft take the property from my own if he taken from the possession of wife, servant or clerk he is also theft.
In section 378, any person is mentioned and that any person might be the owner himself, servant, wife, or
clerk, ect. If this concept is finished then the theft will not happen so much it will happen rarely. If any one
has given permission of his property for any other person to take it in his custody so he is also responsible
and theft will happen from him as well.
S.28: Counterfeit
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Counterfeit and forgery: Counterfeit is in this section and forgery is defined in s. 467 of CrPC and 463 of
PPC. Counterfeit is in relation to coins and things. Forgery is related to documents.
Counterfeit is defined by section 28, to make any thing resemble to another. Without any authority if any
one produces one thing resemble original one it is counterfeiting. Two things are necessary in counterfeit:
1. Intention to deceive: we are saying to the people that this is genuine one and not the fake one. If we
succeed to deceive any one it is counterfeit.
It is caused to coins and official currency who so ever do and to duplicate the fake things to show its
original it is counterfeit.
2. Resemblance: sameness, if it is by creating resemblance between the original ad fake one, to achieve
by creating resemblance. Here is misrepresentation for other to believe that this is same to the
original one. Such as made in Japan and label is also Japan and every thing same to that, but it is
made in some where else, it is counterfeit. Distinguishing the genuine and fake is difficult because of
resemblance. Without resemblance counterfeit is not possible.
In forgery no resemblance is there, it is change of the original document. In both of them are deceiving, but
sameness is not necessary. Copy right is not forgery it is violation of copy rights. Every thing can be
counterfeited by the view of commercial benefits or profit making fake (copy of original). Intention to
deceive other to get the benefit it counterfeit. In the case of counterfeit two things should be there, and for
forgery two things are not necessary, we change some facts of the documents because of our benefit, may be
the name of document or date of birth or ect, it is forgery. But in the case of counterfeit two things are
involved one is original one and other is fake one.
The counterfeit occurs in offences relating to coins provided in Chapter XII S.230-31, and offences
relating to trade and property market in Chapter XVIII S.463. The things counterfeited may be a coin or a
piece of metal. Its value is immaterial. The counterfeit coin may be more valuable so far as money value is
concerned than the coin for which it is intended to pass.
Explanation 1: Degree of resemblance is not necessary, if it is so closed to deceive another to buy that it is
resemblance.
Explanation 2: this is a rule of law of evidence, how to establish that this things has been counterfeited? And
deceive was there intentionally. The burden of proof is to the person who is busy in duplicating of the
original, or making fake things. If he arrested red handed and these subsides were with him, he has every
thing to manufacture the fake things. It is his duty to prove to the authority and he has to explain, if he can
not then he would be guilty of counterfeiting. If he gives evidence of permission or authority of government
just for the serve of conservation, then he is not guilty of counterfeiting.
S.29- 30: Document, valuable security
These two sections are related to each other. The matter which is described in those things is a
document, in the eyes of law document is a flexible things, normally we think papers as a document. Any
thing which is expressed in any substance through any means it is a document. Ownership is a matter if
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ownership is written in the book, notebooks, ect it is document according to law. But documents should
have two features:
1. Matter: it must be letter in the matter. Through the use of letter we could identify the ownership of
something it matter.
2. This matter must be expressed on some substance: Any matter which is expressed by any letter by pen,
pencil, print, leaves, pages, stones, photographs, ect.
So document is any matter which is expressed on any form or any substance, that substance could be paper,
wood, stone, ect. It should be concrete in nature, visible to all of us. Why we use? Because of evidence that
this is our property. Is it valuable document to all of us? Document could be a valuable security. Every
document is not a valuable security. So if it is the evidence of some sort of right and liability it is valuable
security. Every valuable security is a document but every document is not a valuable security. Property,
money, ect are valuable security. Document should have visible existence, and we can make the document
valuable security but how? By adding in it some sort of rights and liabilities. In law document may be
different in nature, not just writing as it is common to all people.
Valuable Security= document + legal rights + liability. Every document is valuable to the person whose
rights and liabilities are related to that. If the rest of the world does not accept it as a document but it is a
document in the eyes of law to that person whose right and liabilities are related to that document.
Explanation 1: it is immaterial (not important) by what means or upon what substance the letters, figures, or
marks are formed.
Illustration: A writing expressing the terms of a contract, which may be used as evidence of the contract, is
a document. Details Page: 24.
IOU document is also a valuable security, because there are rights, and liabilities concerned. In Valuable
security there should be document first then valuable security. It is the evidence of right and liability. It
would be offence if the valuable security robbed, stolen, or extortion. ATM is valuable security, A rent of
note, A deed of divorce, A kubuliat, stamped document + signature, power of attorney are valuable security.
Illustration: A, writes his name on the back of a bill of exchange. As the effect of his endorsement is to
transfer the right to the bill to any person who may become the lawful holder of it, the endorsement is a
"valuable security". Check is also a valuable security.
S.31: A will
The word "a will" denote any testamentary document. A declaration which a person carry after his death.
Will is a document. It is some value, according to Islamic law we can also have will of our property to one
third, but in secular law a person can make will of his complete property. This document is such that can be
forged. Any person who changes the will and gives different from what the author of will has written it is
forgerated.
Testator: a person who made a will in his life and carried away after his death.
Testament: is a document of will.
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Intestate: a person who died without having will in his life. For Muslims it is not a problem because if he
did not made will there are categories who are taking his property after his date according to their shares in
inheritance. Will weather from Muslim or Non-Muslim will take effect after his date. If testator is a will he
can change or reduce or cancel the will, it is decision of him. If he is passed a way then it is the right of state
to give the property of that person to whom he has mentioned in his testament of will. Muslim can not give
or leave the will to the animals but others can write their wills for the animals, temples as well. It should be
carried out after his death what ever the object will be; ridicule or not we can not change that.
Testament: refers to the will.
Codicil: (appendix) addition, it is an additional to will. The supplementary document which is added to the
will subsequently. Without making a new will so testator adds codicil in the will. So it is also document it
can be forgered and more punishment will be for forgery.
S.32-33: act, omission
Act can also be an omission: we do an act which is not permissible, by the violation of law, such public
servant he is in duty to do some thing he is not doing that he does not discharge his duty this is also an
offence because it violation of law, so in criminal liability some times it is doing the act which is not
permissible by law or not doing something which is under duty. For act we don’ t have any specific
definition. Act generally means voluntarily done by a person. Act is determination of will, producing an
effect in the sensible word. This word includes writing and speaking, or in short, any external manifestation.
According to section 32 act and omission is used in same manner as according to criminal liability. In really
act is a thing which is done in violation of a law, omission is a thing which is required to be done but by not
doing it a person is doing omission.
S.33: when acts and omission is done, there could be multiple acts and multiple omission, if a person fire
one shoot and kill one human being he is done one act, if he shoot two or three shots and killed one human
being he has done one act, if he shoot two shoot and kill two human being he has done two acts and should
be punished for two offence. And for the purpose of punishment we have section 71; we have to look at the
act and consequent. For the purpose of punishment we have to look for the effect. Under this section act
could be singular or multiple acts which constitute criminal liability. If there are two offences the
punishment will be also two; we hear that he has been executed for 6 murdered; this is because that no one
will say that he has been executed because of my death or other's. The punishment should be carried
simulteness of cumulative offences. These sections give us that according to one offence one act could be
done, regarded two offences multiple acts could be done, where one offence accompanied with more acts
one punishment would be awarded but if two offences accompanied with more acts then multiple
punishments would be awarded. Example according to Islamic law if a person take some property from here
and there in one herz he is doing multiple acts but there is one punishment of theft is for him.
S.34-38: Common Intention
This should be taken subsequently with the regard to abetment, and regard to common object
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S.39: Voluntarily
Voluntarily is equivalent to knowledge, certainty, intention, and reason to believe; voluntarily is
intention + cause + effect. A person he knows the result which will be produce from the act is voluntarily. It
is the causation of effects and not to the doing of acts from which those effects result. Voluntarily is based
on knowledge, if the age such that he has knowledge of what will be the effect of using something. The fire
arm is dangerous, every one knows it that if we aim it to others will be homicide, if we aim it to ourselves is
suicide and our knowledge says that it is dangerous thing. It is not necessary that it happen with the criminal
intention but its nature is such that will cause that. What till us that this thing has evil effect if we use it?
Experience, or reading in material will till us, ordinary court of some thing explain this. Causation is one of
the element of criminal liability it says what will be the effect of doing such act. Cause is the act, effect is
the result. And this is known by our experiences, if we are not minor. Why because causation requirement is
fulfilled so he should be liable for that. So voluntarily here means that the person knows the result of his act.
And he is liable for this and should face the punishment. Voluntarily intention getting translated into
concrete action and that concrete action through the use of mean and what will be the consequences of that
means with the knowledge of that person is voluntarily. Cause it bye means: is action and reaction in
accordance with ordinary law of nature or other consequences. Position of weapon does not accuse any one
guilty of an offence or killing. So if it likes this then the requirement of causation and voluntary finishes.
And also weather this means is particular in nature or not.
Illustration: A sets fir, by night to an inhabited house in a large town, for the purpose of facilitating robbery
and thus causes the death of a person. Here A may not have intended to cause death and may even be sorry
for that , he has caused by his act, if he knew that he was likely to cause death, he has caused death
voluntarily.
S.40-43 offence
Any thing which is punishable under PPC or any other law.
S.44: Injury
Means wrong, violation of rights, any thing which causes to any person in body, mind, reputation or
property. Any harm caused to some body. Because of this Maqasid Shariah is there, to reduce injuries. Any
thing which is against Hefze Den that is injury, or any thing which is against human (Hefze Jan) is an
injury, ect. Injury is the violation of right and obligation. Injury is not hurt (Jurh).
S.45-51: details in page 47.
S.52: Good faith
Any thing which is done with due care and attention.
S.52-A: Harbour
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Harbour offence can not be committed before committing an offence. We give harbour to a person who is
escaping from the process of law. If a person comes to us and take refuge from us and he is running from
the police, if we give him protection by giving him food,, shelter, drink, money, clothes, arms, ammunition,
or means or conveyance so he could avoid from arresting we are committing harboury offence. Just there is
one exception it is Spouses they are immune from this section. Because nature of spouse that they are
mostly at the same place and same time, this is not the issue of harbouring, but parents can be accused of
harbouring of his children or children can be accused of harbouring of parents. For spouse exemption from
section 157, and 130. And many sections are dealing with harbour Sections 136, 212,216-A, dealing with
the harbour.
CHAPTER III
PUNISHMENTS
S.53: Punishments
If we recall section 6 of PPC there will find that for every offence we will have definition, illustration, and
punishments weather it is murder, robbery, dacoity, ect. Offences and punishments are the creation of law,
so what are the legal punishments in Pakistan? We have to take this chapter. Every one of them should be
imposed to any one who is violating the law. Until 1990 we had just five punishment in PPC, today we have
list of ten punishments, we have both Islamic and secular punishment in this section. These ten does not
mean that its is arbitrary chosen, it is related to the relevant previsions of every offence. What are legal
punishment in Pakistan? We have list of ten punishments in section 53. What about its extend, such ; fine.
S.71: limitation of punishment of offence made up of several offence. And another thing which may be
contrary to Islam that can we punish one person twice for one offence, we have section 75. Habitual
offender (previous conviction) we have to look for the evidence for the conviction of any crime. In this
section it is enhancement of punishment for habitual offender, because he did not reform himself we have to
give him more punishment, this is also available in the law. And the principles about commutation or
clemency we will take in this chapter. In this chapter only principles.
Before transportation of life- was a part of PPC but we don’ t have it now in these punishments. Punishment
will be legal not more punishment will be imposed to any offender, these ten punishment will not be
imposed to one person, it will be imposed according to the offences we have to review the relevant
provision of that offence for the punishment.
In section 53 list of punishment which can not be extended even by supreme court of Pakistan. It can be
emended by Parliament. Before 1990 it was five and all five have been listed from 6- 10. Death for murder,
Qatul, imprisonment of life, imprisonment which would be any other nature, forfeiture of property, fine, but
after five others have been added to this section which are Qisas, Diyat, Arsh, Daman, Ta'zir, because of
Islamic law. Hudood punishments are not included in PPC, and Hudood has been created by special law
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which is Hudood Ordinance 1979. It is included in legal system of Pakistan but not the creation of PPC.
According to PPC 11th punishment will be illegal.
1. Qisas : life to life: this is in Qatal Amd, Etlafe Ozwo (loss of organ) , and Etlafe Salaheyat Ozwo
(function of natural capacity) exp: some body get paralyzed through electric shock , deprivation of eye
sight, on both case Qisas is possible.
2. Ta'zir: where Qisas is not possible, it changes to Ta'zir punishments. Ta'zir is right of state and
government, ta'zir is not fixed, state can reduce and enhance the ta'zir, because it is not related to right of
Allah or individual.
3. Diyat: Qisas can be converted to Diyat, if it is (Shebe Amad) father killing his son, minor committee
some offences, killing, he is not liable to Qisas so it converts to Diyat. Diyat is pecuniary in nature; it is
payment of compensation of a fix value, such 100 camel as according to prophet (PBUH). Qisas and Diyat
can not be combined.
4. Arsh: fixed compensation to be paid by the offender for the injury. It not in relation to Qatul it is in
relation to Jurh, what is its extend? In some case it is equal to Diyat and some cases it is half, or one fourth,
or one tenth of Diyat, relating to the number of the Jurh, which is expressed by law. S. 299-B defines this.
5. Daman: is compensation fixed by the court. And it is compensation as a matter of right, the court can give
Daman. It is not fixed as well the court will give according to case. It is also explained in S.299-D.
6. Death: on account of every offence which law has fixed not involving right of any individual. Death
punishments in PPC is awarded in these offences, Sections. 121, 132, 194, 302, 396.
7. Life imprisonment: it means up to the end of life, but in PPC means up to 25 years.
8. Imprisonment shorter then life imprisonment , maximum 14 years.
9. Forfeiture of property.
10. Fine.
Life imprisonment according to PPC is equivalent to 25 years. Literally life imprisonment means up to the
date, in Islamic law we will find near to this, in the offence of theft, according to Hanafi school after second
time, then he should be send to imprisonment for life.
Without life imprisonment the other the maximum limit will be for fourteen years. And there is nothing
among 25-24. Life imprisonment is rigorous in nature. A convict is supposed to work as a part of
punishment, in working in public constructions, grinding the corn, drawing water, digging earth, cutting
firewood, etc against his wishes. And 14 years imprisonment can be also rigorous or simple (just to pass the
time without any work) he would have every facility. Under PPC imprisonment whether rigorous or simple
in nature divided into:
1. Substantive imprisonment.
2. In default.
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Substantive imprisonment: it is primary punishment, the punishment which is original in nature which PPC
prescribed it. Substantive punishment can be negotiable, it is fixed, it can not be avoided through payment
of money. This punishment which PPC fixed it for offences.
In default: it is in the case of fine, Diyat, Arsh, Daman. If original punishment can not be paid, so it changes
to in default punishment. This punishment can be avoided through payment of fine or money. There is
choice it is negotiable. Pay 50 % of fine and avoid half of imprisonment in default.
S. 54, 55, 55-A: Commutation and Clemency jurisdiction
Commutation: to convert a bigger punishment to less punishment, or to convert major punishment to
minor punishment. Exp: death is the highest punishment in accordance with the law, it is by supreme court
of Pakistan, so there are so hopes, appeal for mercy to the president under Article 45 of Pakistan
constitution , and under 54, 55, 55A of PPC federal government, provisional governor has also this
jurisdiction. so to covert the death punishment to the life imprisonment it is commutation, or to commute
life imprisonment into the simple imprisonment is also commutation. Under Article 45 of Constitution it is
only president who has to power of clemency jurisdiction, not the power of provisional governors, not the
prime minster or federal or provisional government. He shows clemency or mercy to the offender.
Commutation is possible by president, federal government, or provisional governors as well.
Pronouncement of judgment is a judicial decision, but there after that judicial decision can be
disturbed by an executive order to be from the president of Pakistan under article 45 of Constitution. This
authority to disturb judicial decision by way of punishment is simply known as the clemency jurisdiction of
the president. Clemency jurisdiction literally means appeal for mercy, how this mercy done and how this
jurisdiction can be exercised? There are more then one form.
This jurisdiction can be exercised by:
1. Federal government.
2. Provisional government.
3. President under article 45.
Clemency jurisdiction is a goal it has to be achieved numerous things could be done in any case. What is
possible to be done in this jurisdiction?
In section 55-A it is saving for president's prerogative: it means the president may or may not be done in any
case, we can simply apply, but we can not say that before president has applied, he will give us also
consation , in one murder may commute, and other case does not and he does not violate any law, and
second thing is that it is not as a matter or routine, in one murder case happen so it should happen in all
murder cases, president may or may not mercy on him. It is personal decisions. Before 1990 PPC did not
impose any restriction on this but after when it is Islamized, S.402 of CrPC also explaining same power
without any restriction, now we have provided that in case of Qatle Amad the federal government or
provisional government can not change death sentence to life imprisonment without the consent of the legal
heirs . How this clemency jurisdiction will occurs? Different forms are there, commutation to reduce, and
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other rights of president is also forms of this jurisdiction. In section. 55-A, it is just rights of president and
not the right of federal or provisional government. For commutation the president is not bound to consent
the legal heirs. We have five different terms which could be done in clemency jurisdiction, one of them is
mentioned in section 54-55, and four others are mentioned in S.55-A.
1. Commutation: to reduce, to converse, conversation of major punishment to minor punishment.
Commutation should not be mixed with other fours. But it is not mercy at all. Death can be commuted to
life imprisonment, and life imprisonment can be commuted to simple imprisonment, and simple
imprisonment commuted to fine. But it is not possible that in the name of clemency the president change
death sentence to fine, because between them there are many other punishments. In commutation the idea of
punishment is always there. If the authority wants to accept his appeal then it can be commutated.
2. Pardon: it means complete removal of a punishment, no question of conversion, according to Islam, Hanfi
school of thought if any one pardon from Qisas will any other punishment will remain on him? No it has to
be unconditional in nature. If president pardon then no punishment will remain at all.
3. Reprieves: to be delayed, it is for the pregnant woman, S. 314(3) how Qisas executed and convicted is
female and she is pregnant, the execution should be postponed. And this is what the literal meaning of Qisas
which means equality. Is it possible two persons in the name of Qisas if he killed one person? No, so what is
if women is pregnant, so section 314(3) explains this, if the convict is female and she found pregnant so
postpone the execution of Qisas up to period of two years. Why because two life can go by the name of
Qisas. This is Islamic principle as well. So reprieve is seeking delay which is to be executed to women who
is pregnant. it is not related to the other crimes. It is for Qisas because as we said we can not execute
punishment to two persons.
4. Remission: to reduce some time of his punishment, it is not changing the nature of punishment, it is
partional punishment. He should suffer punishment but the time is to be reduced. In commutation the nature
of punishment is changed, the duration in remission is changed but the nature of punishment will remain
same. Exp: on the occasion of Eid days, some months of punishment reduced by announcement of
president. Some parts of punishment is reduce and part remain.
5. Respite: to secure additional time, instead of exposing those things now, additional time should be given;
it is not pardon, nor others. It is extending the additional time. It is similar to respite but that is for pregnant
women and this is regard to civil liabilities, such as fine, civil decree, extension of time of decree. Otherwise
he would be arrested then auction of his property and ect, but if he respite then he is immune and he is safe
from these things.
S.57: Fractions of terms of punishment
The term of punishment life imprisonment is equal to twenty five years. And this does not mean that
the convict is not entitled to remission. In this section an object was lay a basis for the remission system for
the purpose of working out the remission. 1/4 of his punishment can be remitted under prison act. A person
while his punishment passes some exams that cause him for remission, if he co-operate with jail authority in
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maintaining displine this entitle him for remission in the context of punishment, he learned Quran by heart
this entitle him remission, he did something is else that he maintained healthiest situation in jail this also
awarded him remission.
Remission according to jail rules are two types:
1. General remission.
2. Special remission.
General remission: every convict has right to be rewarded by remission, 1/4 is maximum remission for any
convict. If a person imprisoned for ten years after passing seven and half years he could be realized. General
remission can be for serious offences as well such murder or robbery, by doing some good behavior,
manner, maintain peace in jail he could be remitted in general remission.
Special remission: if authority announces special remission then it can not be given to dangerous convict
such Dacoity, raps, murder, robbery, any offence against state. From here it can be said that 25 years is not
important to spend in jail it can be remitted. But in Islamic law, imprisonment to life is up to the death,
whenever he dies.
S.60: Sentence in case of imprisonment wholly or partly rigorous or simple
Imprisonment
‫ ك‬Length
Nature
Simple
‫ ك‬Rigorous
Length: Any court which sentence any period should mention its length or the period which the convict will
spend in jail, if not it is illegal. Under PPC length vary from cases to cases, minimum period for
imprisonment is 24 hours which is for intoxicated person found in public place in section 510, and
maximum imprisonment is for fourteen years, and among this two flexibility is available looking to the
gravity of offence, and offender. And this should be mentioned in the judgment.
Nature: according section 53, it could be simple in some cases and rigorous in some cases. In rigorous
convict is not left to set just beyond the bar, he has to do some work for the benefit of state, or public,
construction, digging, drawing water, any benefit for community because it is a part of his imprisonment. In
PPC in some case its nature is fixed and some case nature is not fixed, those which are fixed court can not
change that, judgment should be according to the that, the imprisonment of "either description" it means if
54
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its nature is not fixed then the court will fix either which nature is suitable for the convict. It may be all
simple, or part of it rigorous and whole other simple. Life imprisonment is rigorous in nature. It can not be
simple imprisonment.
S.63-70: Dealing with Fine
S.63: Amount of Fine
Fine is also expressed in law. If fine is just only the punishment than if it is not paid it can be changed. The
fine can be changed to imprisonment, if he is not in the position to pay because he can not do so, not
because of his wish. To give a fair chance to give the fine, we should put in view his financial condition of
income, should look to the possibility and income, and property. Any amount of fine is acceptable according
to offender, we should not victimize him, the fine should not be exceeded from his income, and fine can
vary from case to case, by court. Fine is the power of the court in some cases fixed and some others are not,
if it is not fixed it can be unlimited according to his financial condition and should not be excessive, and it
will be known from his bank account, salary, property, income, ect and it can not be asked from convict
because he is not ready to pay even ten rupees. If fine can not be paid then it can be changed to
imprisonment.
S.64: Sentence of imprisonment for non-payment of fine
‫ ك‬Imprisonment
substantive
Concurrently
In Default
Consecutively
Substantive: murder for example punishable with death or life imprisonment, these are two amount of fine,
Robbery which the person gets injured convict is punished with imprisonment as well as fine. Where
imprisonment of any nature for any length is fixed by law in any offence is called substantive imprisonment.
It is non negotiable for any thing else, it can not be converted to money. It could be simple or rigorous in
nature; it can be on account of one offence or two offences. We will find some times two punishments for
one person at one time, or one after another. Concurrently means (at the same time) cumulatively 100 years
punishment, so it start in one time. Consecutively (one after the other) let the one term expire then other will
start. According to section 64 if any case a person is sentence substantively imprisonment and fine or just
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fine and he has to suffer then the shape will be in default: substantive impressments can not be part of
imprisonment in default, let first that substantive imprisonment expires, there are after the period of
imprisonment in default will start, if he fails to pay the fine. This principle just apply on those cases which a
person is punished with substantive imprisonment and fine but he fails to pay the fine, non payment of fine
will be caused the imprisonment in default.
In default it is negotiable, it can be changed from paying the fine, avoid the imprisonment. It is not
original punishment, it is because of failure of giving the payment of fine, it is related to the conduct of
offender, if he pays then it is changed not performed. It has option, it is alternative. The court will mention
in the sentence the imprisonment in default, if the convict fails in paying the fine, the court practice made
the language of the section mandatory and court will mention. We find a principle in this section that
imprisonment in default is not concurrently with substantive imprisonment.
S.65: Length and nature of imprisonment in default
Limit to imprisonment for non-payment of fine, when imprisonment, and fine awardable: some offences
under PPC could be punishable with just Fine and some others with punishment + fine. For both of this
cases different principles are laid down in PPC.
Fine: Nature would be simple.
Duration- 6 months maximum, and more then that is not possible. If the offence is punishable under
this code then these two neither nature nor duration can be changed.
Punishment + Fine: situation is different if the offence is punishable with these two.
Nature: simple/ rigorous, according to substantive imprisonment.
Duration: maximum 1/4 of substantive imprisonment. If substantive imprisonment is 14 years then
imprisonment in default would be three and half years. If it is punishable with 10 years it will go up to two
and half years. This is based on the law because if we leave it for court it would be harmful for the offender.
S.66: nature of imprisonment in default
It will follow according to the nature of substantive imprisonment. If it was simple in nature this will be also
simple, if that was rigorous in nature this will be also rigorous. Accordingly with substantive.
S.67: where the punishment is just fine
Imprisonment for non-payment of fine when offence punishable with fine only; its nature is simple, and
should be according to this scale:
1. 1 Rupees to 50--------- 2 months.
2. 51------------100---------4 months.
3. 101----------upward----6 months.
Here is not the formula of 1/4, here is according to the amount of fine.
S.68: Imprisonment to terminate on payment of fine
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The whole payment will cause the whole imprisonment in default, and half will finish half of imprisonment.
Because of this it is negotiable, no authority can say that now punishment starts you can not pay now, the
punishment will be terminate at any time, wholly or halfly or part of that. Termination is right of convict.
S.69: illustration is important. Page 63.
S.70
The person was punished to fine but he did not pay he was sentenced imprisoned in default when he
finished that time as well he came out of the custody, can the state goes to those resources which that person
have for restoration of fine? This section give authority to the court to take the fine within six years if he
finds that amount of fine even against wish of convict even he went for imprisonment in default.
Payment is voluntary to give the fine with out coercion or force. But Levy is forcible thing, to take
something without the convict's wish. Levy is to recovery the amount of money without his wish, to attach
the property. And after six years it becomes barred.
S.71: Limit of punishment of offence made up of several offences
Punishment must be proportional to the offences, if the crime is less punishment should be less as
well. It is based on the principle of criminal law that punishment should be according to the offence. We
should look to the circumstances that how the offences are accord. Here are some principles in this section;
some times multiple acts will happen resulting in one offence, the punishment should be one. Exp: we are
not counting the bullets, we should see what was the effect of harm of that bullets. If causation established
then the offence will punished adequately.
Every offence should be followed with punishment, but which there is a list of punishments in S.53,
all of them are not arbitrary imposed one of them will be imposed in one offence according to the law
because (punishment is the creation of law) Section 71 gives us three principles which we can determine the
exact punishment for an offence; punishment should be proportional to the offence. So one offence get
committed by doing multiple acts, should the punishment would be on account of the acts, for one offence,
or should be on the basis of offence? Exp: I wish to deprive a person from his limb, I can achieve my object
by charping out from the should, but I don’ t let that he goes without pain, let me proceed step by step , first
I remove his finger, then joint, then forearm joint, lastly from joint of limb. So should we punish him for
several acts, or punish him just because of cutting the limb? What type of punishment should be awarded to
him? How much punishment for this, three or one punishment? According to Quran Qisas is also possible in
Jruh (Etlafe Ozwo, Etlafe Salheyat Ozow) this example is etlafe ozwo, so it is punishable according to
Quran. Fiqh Jafarya says let the offender suffer same pain, ultimately he will stand first cutting his finger
then from joint then from limb in the name of Qisas, the same should happen to the offender. But here is
some complication that it may cause to his death, and Qisas should not go beyond the equality, if he loss his
life, so we are crossing the principle of equality which is Qisas. Section 71, paragraph 1 is for same offence,
if a person committee an offence which several acts, he should be punished one offence. We have many
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other sections related to this, that in offence for human body that if any one kill other by shooting him ten
bullets or one it is same, or in case of Robbery if a person collect the luggage from different places of one
Herz he is liable to one offence. In relation to murder we don’ t count the bullets we count how many
bodies were killed. In all the cases the number of acts are not counted the effect of the acts are seen. So it
comes that punishment must be proportionate. We are not going to aggrieve party because they want
deterrent punishment always, we can not ask the offender as well. It comes out of this paragraph that if the
offence is dependent on doing numerous acts, all these acts gets together and makes one offence and one
punishment should be imposed, and this punishment should be the severe of all this is not rigid role
exceptions are there. Sections 324 are related to exception. S.324; this is punishment for attempting murder,
if it success it is Qatul, if the victim survive but he injured, he should be suffered for the punishment of
attempting murder and as well as punishment of hurt separately. The offence is as cause of multiple acts,
and the punishments are also two. This is an exception.
S.337-W is merger of Arsh, hurt is caused to an organ, and the accused shall be liable to Arsh for causing
hurt to such organ and not for arsh for causing hurt to any part of such organ. Illustration (a) page 486. One
offence comprise different acts, one punishment should be avoided. So S.337-W is related with section 71,
paragraph 1.
Paragraph 2-3, section 71: offence whether through one act or multiple acts falling through one or two
definitions of PPC. Exp: the stolen property has been recovered from a person, we have one thing to be
shown that property is not his, it belongs to some one else, how he acquired that, possibly through breach of
trust, or stolen, he must acquired stolen proper. S.379 deals with the offence of theft, one offence one
punishment, S. 411. Person with the knowledge that this is stolen property, S.414. Concealment of stolen
property, through deception he might have that property, cheating or ect. So we have one idea that this
property is with him, but what actually committed? We can impose on him different punishment on him
because it falls under different sections or definitions of PPC. To one act two or thee definitions could also
apply but only one offence got committed so there should be only one punishment.
Paragraph 3: one act something else get added to it instead of being one act it aggravated offence, such
insult with injury. It becomes compound act. It is different from case to cases. Relating to this S. 390
robbery is theft by itself but with gunpoint it is compound robbery. S.392. punishment of robbery, but here
is not mentioned compound or simple, S.394 is compound robbery which is voluntarily causing hurt in
committing robbery. So the court should give more sever punishment for this.
S.72: guilty of several offences but doubt is there
In this section there is doubt in the action, so the offender should be punished with lower punishment. S.410
stolen property is transferred by theft, extortion, robbery, misappropriation, or breach of trust, but the
possession of property transferred is illegal. It can be as a result of theft or something else. S.236 of CrPC
which prescribes the procedure for charging the accused in the alternative, so the court has been given
choice, and section 367, subsection (3), of same code enables the court to pass a judgment in the alternative.
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1. The fact can be selected; the court will select one of the punishments for that.
2. If the court do then alternative charge.
3. The third option is cumulative charge.
Not one or two punishment can be accused. And section 410 is also based in this. Any one could be
possible, the property of some one else is in the position of him. If it can be selected, the court can include
him any punishment, so the less punishment should be sentenced. If court remains in doubt even at the time
of judicial decision and many punishment has been given so the court will give lesser punishment to him
related to 236 of CrPC.
S.73: Solitary Confinement
It is amount of keeping the prisoner thoroughly isolated from any kind of intercourse with the outside world.
It is inflicted in order that a feeling of loneliness may produce wholesome influence and reform the
criminal. It is for three months, it is not to all the cases, and not continuously, there should be a break for
him, it can not be more then three months. Simple it is discussed now a day, it is not illegal but the court
does not practice it or impose it so much. It is just in the cases which are rigorous imprisonment, and
implied to those who are more dangerous. It is Portion: one part of imprisonment not all the time of
imprisonment. Maximum limit is for three months in any case.
1. Six months ----- one month solitary confinement.
2. One year----------two months solitary confinement.
3. More one year—three months solitary confinement
S.74: Limit of Solitary Confinement
This section is related to the execution of solitary confinement, if a person is kept for three months
continuously in confinement sure to produce mental derangement. So this section gives limitation for the
period of solitary confinement when it is executed. The execution is the authority of jail, the authority which
is called jailed superdiant will execute this. And the period of solitary confinement should not exceed
fourteen days in any case. When the duration of solitary confinement is three months then the execution
time should not be more then seven days in any month of solitary confinement.
S.75: Enhance of Punishment for certain offences
A person can not be punished for twice, reputation is not evidence that he should be convicted, bad
character is also not evidence for convict, but good character can produce that he should be given benefit of
that. Bad character is irrelevant, and not evidence at all. It can not be evident against any body. But in this
section the certain offences which are mentioned in chapter 12 XII, and Chapter 17 XVII, can be enhanced
if the offender is habitual offender, he is accused for the same offence which he was punished before
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(kleptomania means a person who can not get ride of his habit, exp: habitual stealing, even small items,
habitual killers) so the punishment might be enhanced for them. Conditions:
1. To any Pakistani or foreign in Pakistan.
2. Previous punishment in Pakistani courts.
3. Previous punishment should be more then three years.
Without these this section will not have effect for enhancement of punishment. If any one does the thing
again and he is previous convict, and he was found involved in same thing again, so enhance punishment
will be given to him. It is not general but it will be applied to the two chapters. The enhancement of
punishment will be up to life imprisonment. Enhancement punishment can not be appealed in Supreme
Court; it should be revised in high court or trial court. If we look to the punishment of theft in S.379 it is
three years, but that is for the first time, if theft is habitual then it can be enhanced to life imprisonment. And
S.380 deals with the punishment of theft from house it is up to seven years, but these are in ordinary cases,
they are not under section 75, but if the offender is habitual then it could be enhanced to life imprisonment.
So in the habitual theft there should be previous offence and subsequence offence again.
CHAPTER IV
GENERAL EXCEPTION
The basic purpose of making and enforcing laws is to control and regulate in variety of human
actions which, if is not controlled by the machinery of law and justice, peace and discipline in the society.
Still there are certain acts which may though be harmful to follow humans but they are not committed with
criminal intent. This chapter deals with those acts committed by a person which may apparently be harmful
to fellow human beings but as they are not committed with criminal intend, the law has extended a sort of
amnesty to them which have been captioned as general exception. These exceptions are categorized as
mistake of fact, judicial acts, accident, absence of criminal intention, incapacity to commit crime, consent,
trifling acts, and private defense.
The idea of exception is to exempt some one from criminal liability. Exception under PPC divided into two:
1. General.
2. Special
General exception: any body can be benefited, applicable to all.
Special Exception: This can not be pleaded by every body.
Effects: Both are so vary as there effect is concerned, the effect of general exception is acquittal of accused
he is (Bare) and no punishment will be there for him. The punishment will be completely finished. An
executioner is not a killer because he is servant of government, and there is exception for him whenever he
is killing any person by the statement of court or government.
Effect of special exception is only exemption from the big punishment, like if father kills his son, he will not
be punished with Qisas, and the effect of it is in mitigating circumstances. Such as at the time of Ekrahi
Tam. Let that person get lesser punishment but not the major, S.299 (i) committee of murder as a minor. So
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different between these two exception that in general no punishment at all but in special there is punishment
but lesser one, but he is not acquittal at all.
S.76-80: some of them are based on good faith element, some of them based on lack of criminal intention
and law; some are on lack of intention. Form 76-79 are all based on one element which is good faith. Good
faith is defined in section 52 PPC any thing which is done with due care and attention.
S.76: is dealing with the public servant, that person who are bound to the law, police, arm force they are
under duty on performing duty they are suppose not to harm any person in any nature, but if harm does
result from the action taken by the public servant, will it be an offence? It will not be an offence because he
does not do it in criminal intention. Should it ignored in all cases? If it is mistake of law it is not excuse at
all, mistake of fact is misconception or misunderstanding, any opinion any action which we form and take
not on the basis of complete realization of fact, but on the basis of half realization or misunderstanding of
the fact, if we are compelled to do so it is said we have done this in good faith because it is mistake of fact,
and no criminal intention was there. Under the law police is authorized to use force for those who are
violating the law, against those individual who are not obeying the law, such as Unlawful Assembly under
CrPC it is the duty of every SHO who is under his jurisdiction this unlawful assembly take place to displace
it in peaceful manner, ask them by giving them warning, if not possible then use of force is authorized
starting from less force, water, latee charge, ect, then use of fire, sigh shot is also possible if police shoot
and killed any body he is not guilty because he was performing duty and not criminally intended, if not
possible then army can inter. If in this case they use force and result it death or injured of any body they are
not guilty for this after reserving all possible conditions.
Another example: police is required to arrest offender in according to law under section 221 of PPC, the
arrest should be peacefully, if they neglect in arresting the offender they do an illegal omission and they are
liable for that. If they could not arrest peacefully, they can use force as well, if any harm or injury occurred
police is not guilty for this because he was performing his duty, even if harm to another person because it
was mistake in identifying of the guilty, it was the mistake of fact. Mistake of fact is to those people who are
bound by law to do something; it is not common to every body.
Two things are there in Public Servants: 1. Duty: What ever happens in lawful discharge of duty through
lawful means will not be an offence according to this. 2. Mistake of fact if it is not with criminal intention it
is exempted.
To bring an act under this section so there should be three things:
1. The act must be by reason of a mistake of fact. Misunderstanding, half understanding.
2. It must not have been done by reason of mistake of law.
3. The doer of the act must do that act in good faith to be bound by law.
Obedience to legal order they have choice but obedience to illegal order is not enjoying exception in this
section. Nature of duty stands fixed, because something are not part of the duty. For any reason they involve
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in illegal command they are protected under this section, obedience to illegal command is not necessary,
and they are criminally liable. Subordinating can not obey the illegal order. There should be no negligence
conduct on discharging duties. Illustration: A, a soldier, fires on a mob by the order of his superior officer,
in conformity with the command of law. A has committed no offence.
And also example of Carfeu, shoot at sight, making people liable to obey the law, patrolling, all these things
are for to make liability so there is no criminal liability for any harm or hurt in these situations.
S.77-78: Act of Judge when acting judicially
False evidence, judge is a human being, and judge has also some limitations, a person even the judge
would be deceived, by giving false evidence S.194, regarding judges it is a part of acts against public
justice, giving or fabricating false evidence, on the basis of that false evidence some one is convicted and he
has been given death sentence, after it was discovered that the evidence which was given was false and
illegal. Having done every thing should it be blame on judge or system? Then no judge will accept any
evidence even true. There are means to discover really but even those means can also be deceived. False
evidence needs some efforts from a person, so it is act, if a person executed such to capital punishment
(death) he should be also punished with death, or life imprisonment.
So nothing is an offence which is done by judge when acting judicially exercise of any power which
is or which in good faith he believes to be, given to him by law. The judge can not be accused for abetment
in exercise of power. What is power? Be satisfied beyond reasonable doubt that this person is guilty of an
offence and according to a law this punishment should be given, this is the power which is exercised by all
judges in all cases civil or criminal. No concentration to any one, the judgment should be according to the
law, and no discrimination to Muslim and non-Muslim for justice, as history of Hazrati Umar, judge in any
case is capable of justice when he is receiving evidence, but if this evidence was false will he be able to
distinguish false and true if it is false evidence. According to Islamic law also witness and evidences have
many conditions for proofing the offence. Power of judge is just to act judicially, impartial in justice make
the judgment not good as if justice is not done. So judge is victim of the false evidence at the time of
judicial process and he sentenced against the innocent person, so he is not guilty and the person who gives
the false evidence must be punished to death or life imprisonment.
S.78: Act done pursuant to the judgment or order of court
This section is applicable to all those person who are in the command of the court, like police
supredient, they don’ t have authority to challenge the sentence of the court or the command of the court for
execution once it is finalized, they should execute and when executing they are not guilty of any offence,
because they fulfill their duty and without any criminal intention, no authority for them to ask whether this
execution is legal or not, if after it is discovered that the evidence was false so the executors are not guilty
for any offence. Punishment always executed by police but it will not be executed by court, so who so ever
carries execution they don’ t have authority to ask the legality or illegality of punishment. Two principles
can be ascertained from this section:
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1. Up on the completion of legal system it becomes final then it has be executed, and executor does not have
authority to ask. In Pakistan judgment does not become final upon sentence of judge, right of appeal for
postponed is there (high court or supreme court should conform that as well) how many times it pass it is
not the matter to be asked no one can execute before finalization of that decision. Government authority has
no authority to question, they can not give their own opinions, and once the legal process is completed it
should be executed. And execution systems vary from state to state. Jail suprident can not ask and without
black point from civil judge he can not execute. If the executor execute they are not guilty and can not be an
offender, because it is his duty and he is fulfilling his duty after all and final procedure. Under S.194 no
finger to judge or executor if he has been convicted with false evidence. If the case was appealed after the
judgment then it would be puts in hold, the execution is not executed so this is the condition of executing.
Even to the last moment after final possibility is there may be the president on clemency jurisdiction pardon
him, appeal of mercy accepted, the executor also can not go beyond that as well, because this power has
been given to president in constitution art 45.
S.79: Act done by a person justified
We have some authority to arrest some body, if he arrests some innocent in good faith and
justification he is not guilty for that, different between 76 and 79 is that in 76 it was bound to him by law
but in here it is just the matter of justification. Not because of public servant or payment just because that
this power has been given to me by law. What is that power under S.59 CrPC all of us can arrest (Private
person arrest) as member of public, not as duty or exchange of power. But if police they don’ t arrest an
offender and let him to run away angelically then he has to face some punishments according to S.221 of
PPC because it was his duty. Proclaim offender – a person who fears to appear the court so he declared as
proclaim offender. Who so ever knows him arrest him, but if he injured or harm, law is not responsible for
him. So according to this section we can arrest criminals whether it was justified or not, if it was mistake of
fact then exception is there.
Illustration: Detail in Page:80.
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Prepared by: Mohammad Ismail
Constitutional Law-II
The Constitution of Islamic Republic of Pakistan, 1973
Introduction
Constitution is set of superior rules which regulate all elements of government. It gives fundamental
rights to the people and it is a mechanism for enforcement of fundamental rights.
Law is product of constitution, because the legislative is by it self produce of constitution and the
law is made by legislative so it is product of constitution.
Government of Indian Act 1935
Three meetings which were held during 1930-32 in London, finally there was the report of
the Joint select Committee and it was published in 1934 later on in 1935 was passed as the famous
Government of Indian Act. The most important features of it;
1. It is for all India federation.
2. Three lists, federal, provincial, and concurrent.
3. The legislature was to be bicameral, federal and council of state.
4. Establishment of federal court.
5. Constitution of 1935 was rigid.
6. Abolished the Indian council of the secretary of state.
It was rejected severely; Mohammad Ali Jinnah also rejected this act and considered it as bad and
unacceptable.
The Indian Independence Act 1947
In July 3 1947 British parliament passed an Act known as Indian Independence Act;
1. Provided two dominions of India and Pakistan from 15August 1947.
2. Complete ending of British control over India from 15 August 1947.
3. Provided creation of two constitutional assemblies for two dominions.
4. Both were given right to remain with British Commonwealth of nation or go out.
5. Until making new constitution the India Act 1935 will be the constitution.
6. Right of control was given to the governor general.
7. Termination of Crown over Indian States.
8. Agreement with the tribal of North Western Frontier of India.
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9. Civil and army were given option to join either of the Dominion.
10. There will be governor general who shall be appointed by His Majesty.
First Constituent Assembly
By the order of Quaid-e-Azam, a Constituent Assembly was formed for newly born country
Pakistan. It consisted of 68 members, 44 were from East Pakistan but later increased to 76. But before
completion of this hands of death lapped him. At the beganing it was comparatively a simple job but as the
time rolled on, the task became more and more intricate4 and ticklish.5
Leading Cases
Maulvi Tamiz-ud-Din Khan V Governor General of Pakistan 1955
He challenged the dissolution, and challenged the legality of the proclamation of the GovernorGeneral in the Chief Courts of Sindh, by Writ Petition under Section 223-A of the Government of India Act
1935 which empowered the court to issue writs of Mandamus, certiorari, warranto and habeas corpus.
In defense of writ the governor general and cabinet was respondents pleaded that there is no
jurisdiction because it has not recived the assents of the Governor General.
A full Bench of the Chief court overruled the objection raised by respondent and held that the order
dissolving the constituent Assembly was illegal and restraining the governor from interfering directly or
indirectly with the functions of the Constituents Assembly.
But case went for appeal and C.J Muhamamd Munir allowed and writ petition was dismissed. And
said that there is no jurisdiction of Sindh Court.
State Vs Dosso 1958
The respondent in this case was convicted by council of Elders under FCR; the High Court of West
Pakistan (Quetta Seat) set aside the conviction on the finding that FCR being repugnant to Article 5 of the
constitution, the convictions were bad in law. Appeal against the said order was pending decisions in the
Supreme Court.
As per majority judgment it was held that as Article 5 of the late Constitution itself had now
disappeared from the new Legal order, the FCR was by reason of Article 5 of the Laws order 1958 still in
force and all proceedings in cases in which the validly of the regulation had been called in question have
abated, the convictions of the respondents reordered by the Council of Elders was good.
Begum Nusrat Bhutto V Chief of Army Staff, 1977
The petitioner Begum relying mainly on Asma Jillan’ s case 1972 contended that the chief of staff
of the Pakistan Army had no authority under the 1973 constitution to impose Martial Law on the country.
Doctrine of Necessity:
4
5
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. complex, difficult.
. problematic, difficult
The question whether the conditions obtaining in Pakistan necessitated the imposition of Martial
Law has to be answered by reference to the happening from 7th March, 1977 to 5th July 1977, which reveal
that the constitutional and moral authority of March, 1977 as well as the Federal and provincial
governments formed thereafter had been continuously and forcefully repudiated through the county over a
prolonged period of nearly four months with the result that national life’ s stood disrupted.
Per Qaiser Khan, J. A constitution or the basic norm could be annulled, abrogated, destroyed, or
suspended in two ways; one by a constitutional act by the method provided in constitution.
Now validity or invalidity of this action could not be tested on the basis of the Constitution of 1973
as it was no longer there having been suppressed and there were no other superior norms on the basis of
which it could be tested. So in the present case under the circumstances prevailing in the Country of which
the Court can take judicial notice the present take-over was quite justified for saving the State from total
destruction and the Chief of the Army Staff under the circumstances could not be dubbed as the usurper.
Per Muhammad Afzal Cheema, J (Agreeing) decided that in the present case Martial law is nothing
more nor less than the law of self-defence or the law of necessity and that in constitutional law the
application of Martial law is but an extended application of the concept of State necessity” thus in certain
exceptional circumstances it is possible to impose even martial law.
Article.2: Islam to be state religion
It is to be the state religion, morally, legally, and socially. Pakistan was founded on the basis of two
nations theory so after separation Islam should be the dominate religion of the state. Islam is Deen complete
in all respect, principles of which are enshrined in the Holy Quran and the Sunnah of Prophet Muhammad.
Islam is a Deen which provides guidance for Muslims in all fields including economic field contribution of
Holy Quran as well as Ahadis in this direction is marvelous and outstanding.
Article.2-A: Objectives Resolution to form part of substantive provision
The principle and provisions set out in the objective resolution reproduced in the Annexure and
hereby made substantive part of the constitution and shall have effect accordingly.
This article was added by P.O 14 of 1985. it is very important and it is sheet-anchor of the
constitution, fir its reflects aspirations of the people of Pakistan so as to what they want and how they want
to be governed. After addition of this article the Quran and Sunnah became the supreme law of Pakistan and
the courts are obliged to enforce the existing laws with such adaptations as are necessary in the light of Holy
Quran and Sunnah to uphold the holy provision thereof.
Article.3: Elimination of exploitation (Abuse, mistreatment.)
The state shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the
fundamental principle from each according to his ability to each according to his work.
Exploitation means by using the machinery of state which negates the rule of the law and does not
give rights. This article makes it upon the state to eliminate, exploitation of the people of Pakistan. It assures
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the gradual fulfillment of the fundamental principles, from each according to his ability to each according to
his work.
Article.5. Loyalty to state an obedience to constitution and law
It is inviolable obligation of every citizen of Pakistan and those who live in Pakistan to be loyal to
the state of Pakistan and to be obedience to the constitution and laws of Pakistan. 1. Obedience to
constitution and 2. Observance of law of Pakistan.
Article 6. High treason : a person who abrogates or attempt or conspires to abrogate, subverts against the
constitution he is guilty of high treason. Punishment death or life imprisonment.
FUNDAMENTAL RIGHTS
1. Basis of FR is Article 8.
2. Actual granting of Fundamental Rights are Articles 9-28.
3. Enforcement of Fundamental rights are Article 199 and 184 (3)
4. Suspension of FR. Article 8 (5), and 233 of Emergency. Here rights are not suspended but remedies
are suspended. Article 233 explains emergency and in three situation it exists; for internal
disturbance, for external aggression, for financial.
Article 8: Laws inconsistent with or in derogation of Fundamental rights
Any law, custom or tradition which is inconsistent with the fundamental rights are void. And state,
legislation should not make any law which is inconsistent with any fundamental rights.
The provision of this article will not be applied for members of armed forces, or polices which they
work for public order, and maintenance of discipline among them, or not applicable for the laws which are
specified in the First Schedule such as, The Minerals order, The companies order, to co-operative societies
order, the martial law order 1972, the criminal law amendment order, the life insurance order, the economic
reforms order, etc.
The laws which conferred by this chapter shall not be suspended except as it is provided by the
constitution.
The idea behind fundamental right is that the preservation of certain basic human rights against the
state interference in an indispensable condition of free society. The fundamental rights have no real meaning
if the state itself is in danger and is organized. If the state is in danger, the liberties of the subjects are
themselves in danger. It is for these reasons of that equilibrium have to be maintained. PLD 2007 S.C. 624.
The sanctity of the Fundamental Rights is protected by Article 8(2) which prohibits even the state
which includes the legislature not to make any law by which any Fundamental Right may be curtailed or
taken away.
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The essential characteristic of fundamental rights is that they impose limitations, express or implied
on public authorities interfering with their exercise. Fundamental rights are most superior and special in
nature and cannot be interfered with or without having strict recourse to the law and that too subject to the
condition provided for the exercise of these rights. PLD 1969 S.C 387.
Laws inconsistent with fundamental rights provisions of this article is founded on the assumption
that custom or usage has the force of law as the law has itself but they will not be enforced to the extent
inconsistency within the Fundamental rights.PLD1996SC 324
The purpose or object of this that to invalidate all existing laws in so far as they are inconsistent with
Fundamental Rights conferred bye the Constitution. For the enforcement of these rights it is the authority of
High Courts the court will see when there is inconsistency whether that law prevail or fundamental rights
will be prevail because the law inconsistent with fundamental rights may be reasonable. So obviously
constitution is the supreme law of the country it will be prevailed. PLD 1964 SC 673. it is the duty of the
superior court to protect Fundamental rights granted in the constitution because Article 199 also empowers
High Court to issue any appropriate enforcement of FR.
1. Security of a person
Article 9 explains that, no person shall be deprived of life or liberty except as accordance with law.
This article provides that no person shall be deprived of life or liberty save in accordance with law.
Here the constitution guarantees against any attack on life or liberty of a person subject to law. The word
life is not restricted to animal life or vegetative life.
Constitution in clear terms guarantees that the dignity of man and subject to law, the privacy of
home, shall be inviolable and further that no persona shall be deprived of life or liberty save in accordance
with law.
The term life used in Article 9 of the constitution is of a very wide import and includes all those
rights which are necessary for living a quality life befitting human dignity, as such the term “ life” can be
limited to mere vegetative or animal life. As it is cleared in PLD 2007 Kar 116. Briefly life requires
fulfillment of all requirements which are needed for a complete, normal and dignified life, including a
health environment. This article relates with Article 38 (d) which provides basic necessities of life, such as
food, clothing, housing, educational, and medical relief for all such citizens.
The right of right in reference to Indian constitution Article 21 considered in Consumer Education V
Union of Indian that, it does not mean mere animal existence or contained drudgery through life. It has a
much wider meaning which includes right to livelihood, better standard of life, hygienic condition in work
place and leisure.
No one is allowed to take some one’ s life in the name of Ghairat legally and normally, neither the
law nor the religion permits the so called honor killing which amounts to murder of Qatl-l-amd simpliciter.
Liberty is defined by Oxford Dictionary as being “ free from control” . In judicial interpretation it
includes the right to exist and the right to enjoyment of life while existing and is necessary invaded not only
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by deprivation of life, but also by deprivation of those things which are necessary for the enjoyment of life
according to the nature.
2. Safeguards as to arrest and detention
No person who is arrested shall be detained in custody without being informed, as soon as the
ground of arrest, nor shall be denied to take a legal petitioner of his choice.
A person who is arrest he should not be kept in custody more then twenty four hours from the time
when he is being arrested and he should not be kept more then this period without the authority of a
magistrate.
This will not be applicable for preventive detention.
The preventive detention deals with person acting in a manner prejudicial 6 to the integrity, security
or defence of Pakistan or any par, or external affairs of Pakistan or public order or maintenance of supplies
or services, and no law should authorize for such detention for more then three months, then he would be
appropriate before a review board, after giving chance of hearing, the board can extend the time period, or
the appropriate board will give a report.
Appropriate Review Board will be at the case of detention from Federal by Chief Justice of Pakistan
and consisting of 3 person one chairman and two other judges of SC or High Court, or in the case of
provincial law, a board is appointed by Chief Justice of Pakistan same as Supreme Court. The opinion of
board will be according to the majority.
A person who is detained under an order made under any law providing for preventive detention,
within fifteen day the authority shall communicate to this person the grounds of detention and afford him to
opportunity to defend himself against the order. The authority may exclude the grounds or facts if it be
against the public interest.
The authority making the order shall provide all documents to the appropriate Review Board to the
case, if it is not in the public interest to furnish any document is produced.
No person shall be detained for more then eight months for the pursuance of any such order if he is
acting in a manner prejudicial to public order and twenty months for other cases.
This clause or principle is not applicable for the person who is employed by acts or instructions
received from the enemy, or for who is acting against integrity, security or defence of Pakistan, or any act
against anti-national activity as defined in Federal law or a member of such association who is working anti
national activities.
The appropriate Review Board shall determine the place of his detention and fix a reasonable
subsistence7 allowance8 for his family.
Nothing in this article shall apply for the person, who is alien enemy, the citizens of a country who is
in war with Pakistan.
6
harmful
7
life.
8
Payment.
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This article meant to provide safeguard to every person against arbitrary arrest or detention because
in this article two ways of detention are shown; a person can be detained by law or under the law relating to
preventive detention. A person who is detained under the law he has bee given some safeguards such as;
1. He should be informed the grounds of detention.
2. Shall be allowanced to consult the legal petitioner. PLD 1975 SCMR 1.
3. Should be produced before a magistrate within 24 hours of his arrest.
4. Not be detained more then 24 hours without permission of magistrate.
A person who is arrest he has right to counsel of his choice. Therefore the provisions of the law
which deny to such person the right to be defended by a legal practitioner are void. As in the case PLD 1965
Lah, 293. He should engage the counsel and the counsel should be given reasonable time to defend him.
The function of the Review Board is to see whether there is a sufficient cause for detention at all of
the detune, as it was held by Sastri J in Gopalan case.
Newly-born baby in jail not being a convicted person, her remaining in jail will be negation 9of
fundamental right of liberty conferee upon baby from the very day of her birth by constitution of Pakistan.
Therefore execution of sentence of convicted mother was suspended pending her appeal against her
convicting and sentence and she was released on bail. 1999 P.Cr.L. J. 1004.
3. Slavery, forced labour, Prohibited
Slavery in any form is forbidden and non-existence in Pakistan and no law can introduce this to
Pakistan.
All forms of forced labour and traffic in human being are prohibited.
No child below the age of 14 can work in factory or mine or any hazardous 10 work.
Nothing in this article shall effect for compulsory services such as any person who is punished for an
offence under any law such as rigorous punishment or for public purpose; and provided this no compulsory
service shall be of cruel nature or incompatible with human dignity.
Slavery which lived in central Europe which meant noble but in Roman it meant servant. Slavery
means a state of bondage, the ownership of mankind as a chattel or at least the control of the labour and
service of one man for the benefit of another and the absence of a legal right to the disposal of hi own
person, property and service.
Forced labour means the labour which a person is forced to do. He is not willing to do but it is
extracted out of him under some threat or compulsion.
4. Protection against retrospective punishment
9
10
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Cancellation.
Dangerous, risky.
No person shall be punished for an act or omission which at the time of act or omission was not
punishable by law.
For an offence by a penalty greater than or kind different from the penalty prescribed by law for that
offence at the time of offence was committed.
This article provides protection against retrospective punishment. The protection given by this article
may avail against those offences which are offences at the time when they are sought to be punished but
were not offences at the time when they are done.
Punishment should not be greater than prescribed at the time of commission of offence. The
amendment in the penal code was introduced with effect from the 14 th April 1972 by law reforms ordinance.
According to the amendment S302 the punishment for murder was death or life imprisonment and life
imprisonment. According to Article 12 of the constitution no law could authorize punishment of a person
for an offence by a penalty greater than the penalty prescribed by law for the offence at the time of offence
was committed.
Ex-post facto law is one which operating retrospectively on penal or criminal matters only. In the
case of Calder V Bull Mr. Justice has point out “ every ex post facto law must necessarily be retrospective,
but every retrospective law is not ex post facto; the former only are prohibited” . It has been held that there
is not violation of the ex post facto clause where the law, with respective effect merely charges the place of
trial varies the modes of execution or abolishes courts and creates new ones.
5. Protection against double punishment and self-incrimination
In this Article it is explained that no one should be prosecuted or punished twice, and no one is
compiled to be witness against himself.
This article provides that no person shall be prosecuted or punished for the same offence more than
once whereas S. 403 (1) Cr.P.C prohibits the second trial for an offence during the course of existence of
conviction.
Supreme Court in the case of Syed Alamdar Hussain Shah vs Abdul Baseer has interpreted the
meaning of word persecution in Article 13 to include the commencing, conducting and carrying a suit to a
conclusion in meaning thereby that a fresh prosecution for the same offence is barred only where the same
persecution has been concluded and ended.
Continues offence where as in a case of a foreign continuously staying in the country without prior
permission or visa in that country it was held that second prosecution was barred in his case because nobody
can be tried and convicted more than once in respect of the same offence. PLD 1963 Dacca 92.
6. Dignity of man
The dignity of man and subject to law the privacy of home shall be inviolable 11.
No person shall be torture for the purpose of extracting evidence.
11
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Firm, unbreakable.
Article 14 guarantees to protect dignity of man and the privacy of home which shall be inviolable
subject to law. Privacy of house it is prohibited in Holy Quran as well, Hifzul Irz is one of Maqaseed
Shareya, Had Qaz for this purpose.
7. Freedom of movement
Article 15 confers freedom of movement, every citizen shall have the right to remain in, and subject
to any reasonable restriction imposed by law in public interest, enter and move freely throughout Pakistan
and to reside and settle in any part thereof.
This article bestows a right on every citizen of Pakistan toe enter and mover freely through the
country and to reside and settle in any part. Right to enter tin the country could not be denied but a citizen
could be restrain from going out of the country. Petitioner is a citizen of Pakistan and has continental right
to enter and remain in the county.
Every citizen has an in alienable right to enjoy the protection of law and to be treated in accordance
with law and in particular no action detrimental to the life, liberty, body, reputation or property of any
person shall be taken. Citizen of Pakistan can return to their country as no restraint can be placed on a
citizen to return to his county.
The main object behind the safeguarding of this fundamental right si to remove all territorial barriers
within the country for the citizen of Pakistan. It is designed to be check against provincialism, regional
discrimination and all parochial consideration, subject to the reasonable restriction imposed by law in the
public interest, a citizen is free to move about, settle and reside in any part of territory throughout Pakistan.
PLD 1969 Lah 908. There is a power to bar a persons’ entry to a particular place.
8. Freedom of Assembly
Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable
restriction imposed by law in the interest of public order.
Article 16 explains the right of assembly this right is related to human liberty which is of the very
essence of democracy. The right of assembly is subject to two condition:
1. The assembly should be for peaceful purpose.
2. No participants should have any arm.
9. Freedom of association
Every citizen has to form association or unions, such to any reasonable restriction imposed by law in
the interest of sovereignty or integrity public order or morality.
Every citizen, who is not in the service of Pakistan, can make a political party subject to reasonable
restrictions. If federal government sees that a political group is working against the integrity of Pakistan
send within fifteen days of such declaration, refer the matter to Supreme Court of Pakistan.
Every political party should account for the source of its funds in accordance with law.
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There should be intra-party election to elect the office bearers and party leaders. The purpose of
making party must be justified.
10. Freedom of trade, business or profession
According to Article 18, every citizen has a right to enter into any lawful profession or occupation
and to conduct any lawful trade or business.
Provided that nothing in this article shall prevent the regulation of any trade by licensing system, or
the regulation of trade, commerce or industry in the interest of free competition or the carrying by the FG or
PG, or by a corporation control by any such Government or any trade of other persons.
From this article it is cleared that this right is not absolute one but it is liable to certain restrictions.
Constitution has given the fundamental right of freedom of trade, business and profession, the right to do the
lawful business, trade or profession mange the same in the way deemed fit by an individual, company or
corporation state or government controlled bodies.
Lawful: the word lawful that occurs before the words professions or trade has important of enabling
the state completely to ban a profession, occupation, trade or business by declaring it to be unlawful.
Unlawful means any thing forbidden by law and this is also the meaning assigned to it in law.
11. Freedom of Speech
Article 19 explains that every citizen shall have right to freedom of speech and expression, and
freedom of press, subject to the reasonable restriction imposed by law in:
Interest of the glory of Islam.
The integrity, security and defence Pakistan.
Friendly relation of foreign states.
Public order.
Decency or morality.
Relation to contempt of court
Incitement to an offence.
Freedom of expression is one of those Fundamental rights which are considered to be the corner
stone of democratic institutions. The constituent guarantee of liberty of the press is one of the strongest
bulwarks of liberty. The newspapers, journals and other magazine have shed and continue to shed more
light on the public and business affairs. The right of freedom speech and expression guaranteed under this
article is not unfettered and unbridled. It is subject to the reasonable restriction which may be imposed
under the law in above situations which are mentioned.
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Security of Pakistan is express in PLD 1957 Lah. 142 that, “ every inch of territory of the State
being more valuable than the liberty of speech and expression enjoyed by any of its citizens, such liberty
cannot on any social, moral, legal or political ground be used as democratic means”
Contempt of Court is not every thing is said or written against a judge, Article 204 of this
constitution enumerates certain classes of contempt, leavening the rest to be defined by law.
12. Freedom of profess religion and to mange religious institutions
Article 20 expresses that, subject to law, public order and morality:
a. Every citizen shall the right to profess practices and propagate his religion.
b. Every religions denomination and every sect thereof shall have the right to establish, maintain and
mange its religious institution.
Religion is not defined in constitution but according to USA Supreme court the term religion has
reference to one’ s view of his relation to the His creator.
This article provides safeguard to the right of man to profess, practice and propagate any religion and to
establish, maintain and mange religious institution according to the law, but this freedom is restricted for
some conditions which are public order and morality.
13. Safeguard against taxation for purposes of any particular religion
Article 21 express that, no person shall be compelled to pay any special tax the proceeds of which
are to be spend on the propagation or maintenance of any religion other than his own.
This article meant to provide protection against imposition of a special tax to proceed of which are to
be spent of any other religion other than his own. Thus no tax shall be imposed on any person who does not
belong to the religion of whose propagation maintenance the tax has been levied.
14. Safeguard as to educational institution in respect of religion, etc
No person attending any educational institution shall be required to attend any religions ceremony,
or worship other his own religions.
There shall be no discrimination against any community in the granting of exemption or concession
in relation to taxation in respect of any religious institution.
Subject to the law no religious community shall be prevented for providing religious institution for
pupils of that community in any educational institution maintained wholly by that community.
No citizen shall be denied to take admission in any educational institution receiving aid from the
public revenue on the ground of race, religion, case or place of birth.
Nothing is this article preventing any public authority from making provision for the advancement of
any social or educationally backward class of citizen.
Some rights are mentioned here but I briefly two of them right to profess and propagate religion and
right to improve educational qualification.
15. Right of property
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Article 23 express that, every citizen shall have the right of acquire, hold and dispose of property in
any part of Pakistan, subject to the constitution and any reasonable restriction imposed by law in the pubic
interest.
16. Protection of Property
No person shall be deprived of his property except in accordance with law.
No property shall be compulsory acquired expect for the public purpose, and except for the authority
which takes for compensation.
Nothing in this article shall affect the validity of :
a.
Any law permitting the compulsory acquisition or taking possession of any property for
preventing danger to life, property or public interest.
b.
Any law permitting the taking over of any property which is acquired by unfair means or
in any manner, contrary to the law.
c.
Any law permitting the taking of enemy property or evacuee property under any law.
d.
For the management of property for limited period, either for public interest or for
securing the property management of property or for the benefit of its owner.
e.
Any law for acquisitions of any property for the purpose of:
i. for providing education and medical to all.
ii. housing and public facilities and services such as roads, water supply, sewerage, gas and
electric power to all or any specified citizen.
iii. Providing maintenance to those who are unemployment sickness, infirmity or old age
who are unable to maintain themselves.
f.
Any law for pursuance of Article 253.
This fundamental right has been granted by constitution in article 23 and 24. The public purpose is
not capable of a precise definition and has no rigid meaning so it can be defined by a process of judicial
inclusion and exclusions. It includes;
1. acquisition of land for Housing scheme.
2. acquisition of land for diversion of railway line.
3. acquisition of land for private textile mill.
4. Rehabilitation and settlement of refugees.
5. Building a manufactory.
6. providing accommodation for pilgrims.
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7. housing the homeless in a public purpose.
17. Equality of Citizens
Article 25 express that, all citizen are equal before law and are entitle to equal protection of law.
And there shall be no discrimination on the basis of sex alone. Nothing in this article shall prevent the state
for making the law for women and child.
This fundamental right is the basic of Islamic principle but now it is known as the basic principle of
modern jurisprudence. The question arises what should be the basis for classification as to aver violation of
the above clause? So following case will be referred:
Brig F.B.Ali V State
In this case the course consider the scope of Fundamental right of Article 25 the equal protection of
law does not mean that every citizen, no matter what his condition, must be treated in the same manner. The
phrase equal protection of laws means that no person or class of person shall be denied the same protection
of law which is enjoyed by other person or other class of person in like circumstance in respect of life,
liberty, property and happiness” .
Msst. Aziz Begum V Federation
In which the court has dilated upon Article 25 and observed as follow that Article 25 also is not
attracted to the claim made by the petitioners in the Constitution petition. It release to equality of citizen
before law and the quality enjoyed by the constitution permits reasonable classification.
Shri Ram Krishna V Shri Justice Rendolkar
In the above case the Indian Supreme Court repelled the contention that the reference made bye
Government for holding enquiry against the appellant company was violative of Article 14 of Indian
Constitution which is about equality before law.
Concept of equal protection of law envisages that a person or class of person should not be denied
the rights, which are enjoyed by other person in the same situation. It does mean that all laws to apply
uniformly upon all persons.
18. No-discrimination in respect of access to public places
There shall be no discrimination against any citizen on the ground only of race, religion, caste, sex,
residence or place of birth in respect of access to places of public entertainment or resort.
Nothing in this article shall prevent state to make law for women and children.
The word discrimination in this article means divide, separate, distinguish. This article is applicable
where a discrimination is made against a citizen solely on the basis of religion, caste, sex or place of birth.
19. Safeguard against discrimination in services
Article 27 express that, no citizen shall be discriminated in respect of any appointment on the ground
only of race, religion, caste, sex, residence, or place of birth. Exception are there; if a person in the service
of Pakistan for forty years may be reserved to any class or areas to secure their adequate representation in
service of Pakistan.
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20. preservation of Language, script and culture
subject to the provision of 251 (National Language) any section of citizen having a distinct
language, script, or culture shall have the right to persevere and promote the same and , subject to law,
establish institutions for the purpose.
This article envisages that if there is a section of the citizens who have distinct language, and culture
of their own and want to preserver the same they have the constitutional right to do so.
Enforcement of Fundamental Rights
Article 199: Jurisdiction of High Court
Article 199 is the base of enforcement of fundamental rights it is jurisdiction of High Court to issue
writ against state if it violates the fundamental rights. Wirt is a prerogative remedy, it is exclusive right of
king, it is the ownership of king. Historically the issuing of writ was prerogative of king. After
independence self contained provisions were added an entirum constitution was government of Indian Act
and it was contained these writs there as well. And this article is also added and article 199, the entire
practice of high court is based on this.
Writ is a written order issued by court for public functionary. It is always issued by the court for
public functionary. It is always issued by the court against government. It is not issued against individuals.
And write petition is application of writ.
Subject to the constitution, a high court may, if it is satisfied that no other adwquate remedy is
provided by law issue writ.
a. on the application of any aggrieved party make an order writ of :
i. writ of mandamus.
ii. Wirt of prohibition.
iii. Writ of certiorari.
b. On the application of any person.
c. On the application of any aggrieved persons make an order giving such directions to any person
or authority for enforcement of fundamental rights.
iv. Writ of Habeas Corpus.
v. Writ of Qua Warranto.
Subject to the constitution means that it will come under other provision of this constitution. “ High
Court may” express the power of High court it is discretion of the court to issue writs. Remedies are
discretionary” if any other law provide a remedy for any issue alternative remedy so writ will not be issued,
for that remedy it would be referred to departmental remedy.
However aggrieved person must be a man who has suffered a legal grievance, a man against whom a
decisions has been pronounced which has wrongfully deprived that person of something or wrongfully
refused him something which he had a right to demand or wrongfully affected his title in something or
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wrongfully affected his title in something. Person in order to be considered an aggrieved person within the
meaning of Article 199, must show that his legal rights have been violated or that he ahs been deprived of
the Fundamental rights guaranteed under the constitution or that he seeks performance of the legal duty by
the state functionary and that non-performance of the duty is to result in loss of some personal benefit or
advantage or the curtailment of a privilege. 2001 YLR 1088.
Alternative remedy means where statue creates a right and also provides machinery for the
enforcement of that right, the party complaining of breach of the statue must first avail of the remedy
provided by the statute for such breach before he applies for a writ or order in the nature of writ. Where an
alternative remedy by way of direct complaint is available to the petitioner, he cannot insist that High court
should exercise its Constitutional jurisdiction under this Article. 2004 YLR 2577.
Article 199 of the Constitution has been examined by the Hon’ ble Supreme Court in PLD 1994.
S.C 102, “ article 199 of the constitution provides that the same cannot be invoked if alternative remedy is
available to the aggrieved party under the relevant law” . In the case of Abdul Rahman, PLD 1987 SC 21 it
is observed, “ it could be exercised only on proof on non-availability of adequate remedy” .
Power of the high court; high court under Article 199 of the constitution has the power to issue a
declaration in respect of any act done or proceeding taken within its territorial jurisdiction by a person
performing functions in connection with affairs of the Federation, a province or a local authority to be
without lawful authority or of no legal effect. It is well settled that while exercising jurisdiction under this
Article, the High court is not to treat the matter as if it were a court of further appeal. High court has only
power to interpret that law and has no jurisdiction to take the role of policy maker in the garb of jurisdiction
then the same cannot be assailed in constitutional petition. PLD 2002 Lah 56.
In the matte of entertainment of the Constitutional petition and grant of relief in equitable and
discretionary jurisdiction.
1. Writ of Mandamus
Article 199 Clause 1 (a) (i) the High Court make an order directing a person performing, within the
territorial jurisdiction of the Court, functions in connection with the affairs of the Federation a province or
local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is
required by law to do.
A writ of mandamus is a command issuing from the High Court of Justice, directing any person to
do any particular act therein specified, which appertains to his office and is in the nature of a public duty. It
issues to the end that justice may be done in all cases where there is a specific legal right and no specific
legal remedy for enforcing such right.
The high court on application of any aggrieved party has power to make an order directing a person
performing, within territorial jurisdiction of High Court function in connection with affairs of Federation,
Province or local authority to refrain from doing anything he was not permitted by law to do or to do
anything he is required by law to do or make an order given such directions to any person or authority
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exercising any power or performing any function in relation to any territory within jurisdiction of that High
Court as could be appropriate for enforcement of any fundamental rights conferred by the Constitution.
When Mandamus issued? The power of Court to issue writs are very wide, the remedy provided
must remain an extraordinary remedy. The essential requirement in all such cases is;
a. that the petitioner has some legal rights.
b. That the said right has been actually violated or there is an imminent threat to the right.
c. That the petitioner has either no other remedy available to him or even if there is such remedy
would not be equally promote, adequate and efficacious.
2. Writ of Prohibition
Article 199, Clause 1 (b) (i) explains this write. On application of any person make an order
directing that a person in custody within the territorial jurisdiction of the court be brought before it’ s so
that the court may satisfy itself that he is being held in custody without lawful authority or in an unlawful
manner.
No person or citizen could be arrested or kept in custody by the police or any other agency operating
or functioning under the authority of a Federal or provincial government except in accordance with law for
the purpose of investigation of a criminal case. Prohibition writ is contrivers of mandamus in the mandatory
form, in that prohibition issues to prevent court or Tribunal from doing some thing which it has not the
power to do, while mandamus issues to compel it to do something which it is required to do. It is writ of
refrain. It is issued on two grounds; want of jurisdiction and violation of Natural justice.
The prohibition writ may issue against any person performing within the territorial jurisdiction of the
Court, functions in connection with the affairs of Federation or Province or a local authority. The word
person in this clause means the Court or tribunal or a public office. The relief in this writ is discretionary;
the court may and may not issue writ.
3. Writ of Certiorari
Article 199, Clause. 1 (a) (ii) explains writ of certiorari as, declaring that any act done or proceeding
taken within the territorial jurisdiction of the Court by a person performing functions in connection with the
affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and
is of no legal effect.
The character and scope certiorari will be sassed for correct error of jurisdiction;
1.
When an inferior court or tribunal acts without jurisdiction or in excess of it or
fails to exercise.
2.
When the court or tribunal acts illegal in the exercise of undoubted jurisdiction or
violence of principle of natural justice.
3.
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If there is an error apparent on the face of record.
79
Originally it related to Courts but in course of time it extended to embrace all inferior bodies, or
tribunal having legal authority. Writ of certiorari can only be issued, if in recording such findings, the
respondents has acted on evidence which is legally inadmissible 12 or has refused to accept admissible
evidence or if the findings are not supported by any evidence at all and if in such cases error would amount
to error of law.
When it is issued? A writ of certiorari may be issued;
i. if there is a manifest 13 defect of jurisdiction of court or a tribunal.
ii. a manifest fraud played by the party.
iii. if the authority making the order act mal fide;
iv. if there is an error of the face of the record.
4. Writ of Habeas Corpus
Article 199, Clause 1 (b) (i) expressed this writ, the meaning of this that you must have the body.
This writ is a prerogative process for securing the liberty of the subject by affording an effective means of
immediate release from unlawful detention whether in prison or in private custody. By it the Court
commands the production of the subject and enquires into the cause of his detention, and if there is no legal
justification the person is et at liberty. Because of this writ is called a writ of liberty.
The object of habeas corpus is intended to preserver the liberty of the subject and is a safeguard
against unlawful or improper manner of detention. It should be so construed as to advance the remedy and
suppress the mischief, and therefore it should always be construed in favor of the detune.
The nature of this writ is for securing the liberty of the subject by affording an effective means of
immediate release form unlawful or unjustifiable detention, whether in prison or private custody. By it, the
Courts at the instance of a subject aggrieved, command the production of that subject and inquire into the
cause of imprisonment. If there is not legal justification for the detention, the party is ordered to be released.
We can say the writ is designed for a speedy release of person who ere illegally deprived of their liberty
from the control of those who were not entitled to the custody of them.
5. Writ of Qua Warranto
Article 199, Clause 1 (b) (ii) express this writ. It means by what authority. It is a writ of inquiry as to
the warrant for doing the acts of which complaint is made. It is a remedy whereby the Court enquires into
the legality of the claimant which a pray assumes to an office or franchise and to oust 14 him from that office
if the claim is not well founded or to have it declared forfeited and to recover it.
The nature of this writ that it is an information, lying against a person who claimed and usurped an
office, franchise or liberty and was intended to enquire by what authority he supported his claim in order
that the right to the office, franchise or liberty may be determined. It is necessary for the issue of this writ
that the office should be one created by the state, by charter of statute, and that the duty attaching to the
12
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. prohibited, not allowed
13
clear.
14
Expel, get ride of
office should be of a public nature. It is not writ of right it is discretion of court to refuse or grant it
according to the facts and circumstances of the case.
Object of writ of quo warranto is to determine legality of the holder of a statutory or Constitutional
office and decide whether he was holding such office in accordance with law or was unauthorized
occupying a public office. Where a person prays for a write of warranto, the could would be under an
obligation to inquire where the incumbent is holding the officer under the order of a competent authority
and also to examine where he would be legally qualified to hold the office or to remain in the office.
In Clause 3 it is explained that an order is not made under this article for armed forces of Pakistan. In
Clause 5 explained that person in this article means any body politic or corporate not individual. Article
184(3) same power is given to SC for enforcement.
SUSPENSION OF FUNDAMENTAL RIGHTS
Article 233 explains the suspension of fundamental rights. Power to suspend Fundamental Rights,
etc. during emergency period; when emergency is announced the enforcement of fundamental rights are
suspended. Not the fundamental rights are finished but the enforcement and remedy for the fundamental
within the emergency period will be suspend, the court has no authority to issue writs for enforcement of
fundamental rights.
Nothing contained in Articles 15, 16, 17, 18, 19, and 24 shall, while proclamation of emergency is in
force.
While a proclamation of emergency is in force, the president may, by order, declare that the right to
move any court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 part 2 as
may be specified in the order, or any proceeding which is enforced in any court may suspend for the period
during which the proclamation is in force, and this order may be in respect of whole or any part of Pakistan.
Those rights which are mentioned here they are suspended as other part it is open to the president to
declare by order that the right to enforce those rights or shall remain suspended during the period of the
emergency.
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EMERGENCY PROVISIONS
1. Basis of Emergency: Articles 232-237.
2. Who proclaims emergency: the president if satisfied that a grave emergency exist in which the
security of Pakistan or any part is threatened by war or external aggression or by internal disturbance
beyond the power of principal government to control may issue a proclamation of Emergency.
3. Need of Emergency: war, internal disturbance, external aggression, failure of Constitutional
machinery.
4. Judicial review: PLD 1997 Lah 38 Manzoor Ahmad V Federation & PLD 1994 SC 738 Pir Sabir
Shah V Federation of Pakistan.
5. Consequences: provinces come under Federal Government, control unitary form of government. ,
High Courts remain independent.
Provincial assemblies function under parliament makes laws for provincial and imposing duties or
authorizing the conferring of power and the imposition of duties upon the Federation While a
proclamation of emergency the parliament may by law extend the term of the National Assembly for a
period not exceeding one year and not extending in any case beyond six months after the proclamation
has ceased to be in force.
The proclamation of emergency shall be laid before a joint sitting which shall be summoned by the
President to meet with thirty days of the proclamation being issued.
If the National Assembly is dissolved at the time when a proclamation of emergency is issued, the
proclamation shall continue in force for a period of four months but, if a general election to the
Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of
that period unless it has earlier been approved by a resolution of the Senate.
Remedy for enforcement of Fundamental Rights are suspended and it has been explained in Article
233 which is explained in previous topic
6. Classification
a. proclamation of emergency arising out of internal disturbance or war
b. Proclamation consequent upon the failure of Constitutional machinery in a province. This is
explained in Article 234 of constitution that if the president has received a report from the
governor of a province or otherwise is satisfied that the situation has arisen in which the
government of provinces cannot be carried in accordance with law, the president may or if a
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resolution in this behalf passed at a joint sitting shall by proclamation announce
proclamation.
c. Proclamation of financial emergency. This is explained in Article 235 if the president is
satisfied that a situation has arisen were by the economical life, finical stability or credit of
Pakistan or any art threatened he may after consultation with the governors of the provinces
or as the case may be make a declaration to that effect and while such a proclamation is in
force the executive authority of the federation shall extend to the giving of direction to any
province to observe such principle of financial property as may be specified in the direction
and the given of such other direction as the president may deem necessary in the interest of
economic life and financial stability. And president can reduce the salaries and allowances of
all or any calls of person serving the connection of affairs of the federation.
7. Revocation of Proclamation: a proclamation issued under this may be revoked by a subsequent
proclamation.
THE PRESIDENT
1. Basic Articles: Article 41,42,43,44,45,47,49,54,56,58,89,90,91,92,100,239, 242,177,193,243,101.
2. Qualification: the president is the head of state and shall represent of the Republic, he is the
symbol of unity of Pakistan. He occupies a neutral position in the Constitution, and in that capacity he is
entitled to highest respect and regard by all the functionaries of the State. The qualifications of President
which is mentioned in A/41 are “
a. he is a Muslim.
b. He is not less than forty five years of age.
c. He is qualified to be elected as a member of the National Assembly.
3. Election: the president is elected under Article 41 of the Constitution through an electoral college,
consists of member of the two houses of Parliament and four provincial Assemblies. After being elected by
Electoral College he would hold the office for full term of five years.
4. Conditions of office: Conditions of president’ s office is explained in Article 43:
a. The president shall not hold any office of profit in the service of Pakistan or occupy any other
position carrying the right to remuneration15 for the rendering of services.
b. shall not be candidate for election as a Member of Parliament or Provincial Assembly. If he is a
Member of Parliament or Provincial assembly his seat will be vacant on the day of entrance the office of
presidency.
The terms of office of President is explained in Article 44 that he shall hold office for the term of
five years from the day he enters upon his office. Provided that he will continue his office until his
15
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.payment.
successor enters upon his office. He can be eligible for re-election but not more then two times. The
president may be by his hand addressed to the speaker of National Assembly his resignation.
5. Removal of president: Article 47 explains about Removal or impeachment of president; this
article proved the grounds of removal and procedure of removal of the president: he may be removed in the
following grounds;
a. physical or mental incapacity or
b. charge of violating the Constitution, or
c. on account of gross misconduct.
Procedure of removal: one half of the total membership of either house may give a written notice to the
chairman or speaker of the national assembly to move resolution for the removal of the president or
impeachment or misconduct chare against him, if the notice is given to the chairman he shall transmit it to
the Speaker, if speaker receive the notice a copy of the notice to be transmitted to the president. The speaker
shall summon the two houses in joint meeting not earlier then seven days not later then fourteen days after
receipt of notice. The joint seating may investigate or cause the grounds of removal, the president has right
to appear and be represented in the joint seating. If after consideration of the result of investigation a
resolution passed by joint sitting not less then 2/3 of total membership of both houses that the president is
unfit to hold the office due to cause which is investigated, the president shall cease to hold office
immediately on the passing of resolution.
6. Resignation, etc. According to Article 44 (3) the president may, by writing under his hand
addressed to the speaker of the National Assembly resign his office. And Article 49 explains that chairman
or speaker to act as, or perform functions of president. If the office of president becomes vacant by reason of
death or resignation or removal of the president, the chairman or if he is unable to perform, the speaker of
National Assembly shall act as President until a president is elected accordance with Clause 3 of Article 41.
if the president is out of Pakistan until his return the Chairman or if he is unable the speaker of national
assembly shall perform the functions of the president.
7. Judicial power: Article 45 explains the judicial power of the president; president has power to
grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by the court,
tribunal or other authority.
The president has no such power to commute the death sentence awarded in matter of Hudood, Qisas
and Diayat ordinance. In these views of the mater the power of pardon in such cases only vests with the
heirs of the deceased. However, the cases would be no different footings, if the person is punished for Tazir
as in such cases; the president has the power to pardon the offender and that too in public interest.
8. Legislative power: U/A 54, 56, 58, 89, 239
1. Summoning and prorogation of Majlis-e-Shoora (Parliament) the president may, from time to time
summon either house or both houses in joint sitting to meet at such time an place as he thinks fit and may
also prorogue the same.
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2. Address of Parliament by President; the president may address either house or both houses
assembled together and may for that purpose require the attendance of the members. The president may
send message to either house, in respect to a Bill then pending in parliament. The president shall address
both houses together and inform eths Parliament of the causes of its summons at the commencement of the
first session of each general election and at the first session of each year.
3. Dissolution of National Assembly: Article 58 explains that, the president shall dissolve the
national assembly is so advised by the prime minister, and the National Assembly shall, sooner dissolved, at
the expiration of forty-eight hours after PM advised. And the president may also dissolve the national
assembly by his discretion where in his opinion a vote of no-confidence has been passed against PM, a
situation has arisen in which the government of the Federation cannot be carried in accordance with
constitution. After dissolution he refers the case to SC and SC shall decide the reference within thirty days.
And his decision shall be final.
4. Power of president to promulgate ordinance: Article 89 explains this, the president may if satisfied
that circumstances exist which render it necessary to take immediate action, make and promulgate an
ordinance as the circumstances may require. And this ordinance shall have the effect and force as an Act of
Parliament.
5. Constitution amendment Bill; Article 239, a bill which is passed for Amendment of constitution it
shall be presented to the president for assent. If the president does not sing on that bill it will not have effect.
9. Executive Power: U/A 90,91,92, 48
1. Exercise of executive authority of the Federation: the executive authority of the federation shall
vest in the president and shall be exercised by him, either directly or though officers subordinate to him, in
accordance with the Constitution. Under this article the executive power of president is in conjunction with
Article 48 (1) of the constitution that the president shall act in accordance with the advice of cabinet or
prime minister. Executive is that branch of government which puts the laws into execution as distinguished
from the legislative and judicial branches.
2. The cabinet: the cabinet to aid and advise the president in exercise of his functions. The president
shall in his discretion appoint from amongst the members of the National Assembly a prime Minister who in
his opinion the most likely to command the confidence of the majority of the members of the National
Assembly.
3. Federal Ministers and Mister of State: Article 92 explains, the president shall appoint Federal
Minister and Ministers of state from amongst the Member of Parliament on the advice of the Prime
Minister. Before entering into the offices, a Federal Minster of Minster of state shall make before the
president oath in the form set out in the Third Schedule. And they send their resignation to the president.
10. President Appointment: U/A 100,101, 177, 193,242,243.
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1. Attorney General of Pakistan: Article 100, the president shall appoint a person being qualified to
be appointed as a judge of Supreme Court as Attorney General of Pakistan. And he gives advice to the
federal government in any legal matter.
2. Appointment of Governor: Article 101, the president appoints governor for every province after
the consultation with the Prime Minister. And governor give resignation to the president, and president may
make such provisions for the discharge of governor.
3. Appointment of Supreme Court Judges: Article 177, the chief Justice of Pakistan shall be
appointed by the president of Pakistan, and each of the other also by the president of Pakistan with the
consultation of Chief Justice.
4. Appointment of High Court Judges; Article 193. A judge of a High Court shall be appointed bye
the president after consultation with chief justice of Pakistan, governor.
5. Public service Commission: Article 242: the Chairman of the Public Service Commission
consulted in relation toe the affairs of Federation shall be appointed by the President in his discretion.
6. Command of Armed Forces; Article 243, the president shall in consultation with Prime Minister
appoint; the Chairman, Joint Chief of staff committee, the Chief of army staff, the chief of Naval staff, the
chief of Air staff and determine their salaries and allowances.
THE PRIME MINSTER
Related articles of the Prime Minster are: 91, 94, 95, 46, and 48.
The Cabinet: Article 91: there shall be a Cabinet of Ministers, with the Prime Minister at its head, to
aid and advise the President in the exercise of his functions.
Before 20th March 1990, president in his discretion was appointing the P,M but after changed. The
Prime Minster has to be a Muslim and the person who is appointed as Prime Minster before entering upon
the office, make before the president oath in the form which is set out in the third schedules and within a
period of six days thereof obtain a vote of confidence from the national Assembly.
The cabinet, together with the Misters of State, shall be collectively responsible to the National
Assembly.
The Prime Minister shall hold office during the pleasure of the President. And the prime Minster
may, by writing under his hand addressed to president, resign his office.
Prime Minster continuing in office; the President may ask the Prime Minister to continue to hold
office until successor enters upon the office of Prime Minster. And he can held the office of Prime Minister
for two terms, whether he completed the tenure or not.
Vote of no-Confidence against prime Minster: a resolution for a vote of no-confidence moved by;
a. Not less then twenty percent of total membership of NA.
b. the resolution shall not voted upon before the expiration of three days or later then seven days
form the day which resolution is moved in NA.
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c. This resolution will not be moved in NA while submitted it is time of annual Budget Statement.
d. If the resolution is move by the majority of the total membership of NA, the Prime Minister shall
cease to hold office.
Duties of Prime Minister: Article 46 explains the duties of Prime Minster.
a. to communicate to the president all decisions of the cabinet relating to the administration of the
affairs of Federation and proposal to legislation.
b. To furnish such information relating to the administration of the affairs of the Federation and
proposal for legislation as the president may call for;
c. If president so requires, to submit for the consideration of the Cabinet any matter on which a
decision has been taken bye the Prime Minister or a Minster but which has not been considered
by the Cabinet.
Under this article prime Minster is bound to inform the president on matters of internal and foreign
policy and on all legislative proposals he intends to bring before the Parliament. The purpose of this article
may seem to be two fold;
1.
This would provide the president an opportunity to remain abreast with the affairs of the
state.
2.
Would provide a forum for better and mutual understanding between the two organs of the
States.
President to act on an Advice: the president shall act in accordance with the advice of Cabinet or
the Prime Minister. Provided that the President can ask the Cabinet or PM to reconsider such advice.
Prime Minister is the pivot of the whole system of Parliamentary Government. He is the chief
executive of the Federation. As a leader of the majority party in the Legislature he is responsible for much
of what the Legislature does by way of making laws. As the Captain of the Cabinet he is responsible for
taking important political decisions affecting the country.
The president has to act on advice of Prime Minster in the following matters;
i.
To appoint a date for election.
ii. To appoint a care taker Cabinet after dissolution of NA.
iii. To refer a matter of national importance for Referendum.
iv. to dissolve the National Assembly when no-confidence vote has been passed against PM.
v. to appoint the chief election commissioner.
vi. to appoint the Chairman, Federal Public Service Commissions.
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vii. to appoint the Chairman, Joint Chief of Staff Committee and Chief of Army, Navel and Air
Staff.
PARLIAMENT
U/A: 50, 51, 52, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, and 66.
1.
Majlis-e-Shoora (Parliament): Article 50, parliament of Pakistan consists of two houses to be
known as National Assembly and Senate. It is bicameral system.
2.
National Assembly: 342 seats of the members in the NA, including seats for women and nonMuslims. 12 seats for Tribal areas, and two seats for Federal. The seat of national assembly shall be
allocated to each Province, on the basis of population in accordance with the last preceding census
officially published.
3.
Qualification of voters
i. He is a citizen of Pakistan.
ii. He is not less then eighteen years of age.
iii. His name appears on the electoral roll.
iv. He is not declared by a competent court to be unsound mind.
4.
Duration of the NA: Article 52, the duration of NA continue for a term of five years from the day
of its first meeting and shall stand dissolved at the expiration of its terms.
5.
Speaker and Deputy Speaker of NA: Article 53, after the general election and first meeting of the
National Assembly, elects from amongst its members a speaker and deputy speaker. Before entering
to their offices they take oath. If the speaker is absent or unable to attend then deputy speaker will
preside the meeting, if both are unable then any other person who is determined by the rule of
procedure. Speaker may resign to the president, and deputy speaker to his office. His office will be
vacant if; he resigns ceases to be a member of the assembly; he is removed from office by
resolution of the assembly. When the assembly is dissolved the speaker will continue his office until
the next assembly enters upon his office.
6.
Voting in Assembly and quorum: Article 55, according to Constitution no decision will be taken
without the majority of the members present and voting, but the person who is presiding will not
vote except in the case of equality of votes. The person who is presiding can adjourn the Assembly
or suspend the meeting until at least one fourth of such membership is present.
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7.
Right to speak in National Assembly: Article 57, The Prime Minister, Federal Minster, a Minister
of State and Attorney General have right to attend either houses, he may be a member but has no
right to vote.
8.
Dissolution of National Assembly: Article 58, The president shall dissolve the NA;
i.By advice of the Prime Minister.
ii. By his discretion if a vote of no-confidence against the Prime Minster passed, or a situation has
arisen in which the government of the federation cannot be carried on in accordance with the
provisions of the constitution.
After fifteen days of dissolution refer the matter to Supreme Court and SC shall decide the reference
within thirty days whose decision shall be final.
9.
The Senate: Article 59, it consists of 100 members:
i.eight shall be elected direct from Tribal areas in a manner which president may order,
ii. two general seats one woman and one technocrat including aalim from the Federal Capital in such
manner as president may order,
iii. Four women from members of provincial assembly,
iv. Four technocrats from Provincial Assembly.
v.Fourteen will be elected by members of each provision.
Senate will not dissolve and the terms are six years, the first will be retired in the season of first three
years and second in the second season of three years.
10. Chairman and deputy Chairman: Article 60, after the senate has been duly constituted, at the first
meeting the chairman and deputy chairman will be elected amongst the members. The terms of
office of the Chairman and Deputy Chairman shall be three years from the day on which he enters
upon his office.
11. Qualification for membership of Parliament : Article 62, a person elected (for NA) or Chosen (for
senate) as a member of Parliament shall be:
a. he is citizen of Pakistan.
b. He is not less then twenty five years for NA. and he is enrolled as a voter in any electoral roll in; any
part of Pakistan for election to a general seat or seat for non Muslims, and any area in a province
from which he seeks membership fo election to a seat for women.
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c. Not less then thirty years of age in the case of Senate and enrolled as a voter in an y area in province
or Federal Capital or tribal areas from where he seeks membership
d. He is of good character and not commonly known as violator Islamic injunctions.
e. He has adequate knowledge of Islamic teaching and practice, abstains from majors sins.
f. He is sagacious16, righteous and non-profligate and honest and amen.
g. Not convicted for a crime involving moral turpitude or false evidence.
h. He has not after establishment of Pakistan, worked against the integrity of the country or opposed
the Ideology of Pakistan.
i.
Possess other qualification as may be prescribed by Act of Parliament.
12. Disqualification of membership of Parliament: grounds of disqualification
i.he is unsound mind and declared by court.
ii.He is an undercharged insolvent.
iii.He cease to be citizen of Pakistan and acquires citizenship of other country.
iv.He holds an office of profit in the service of Pakistan other then an office declared by law.
v.He is in the service of any statutory body or any body which is owned or controlled by government.
vi.He is being elected as a member of the Legislative Assembly of Azad Jamu Kashmir.
vii. He is propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan or
sovereignty, integrity or security of Pakistan, or morality and maintenance or public order, etc.
viii.he has been convicted in the charge of corrupt under a court of competent jurisdiction, or moral
turpitude or misuse of power or authority under any law. And he has been dismissed from the
service of Pakistan or service of corporation or office of local government of grounds of
misconduct, moral turpitude.
ix.He has been in the service of Pakistan or of any statutory body or any body which is owned or
controlled by government or in which government controls share in interest.
x. He is found guilty of corrupt or illegal practice under any law unless time of five years have been
elapse form the date.
16
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. wise, clever
xi.He has been convicted under S. 7 of political parties Act, unless period of five years has elapsed
from the date.
xii.And many others disqualification which are in Section 63.
13. Vocation of Seats: Article 64 explains, A member of parliament may, by writing under his hand
addressed to the speaker or as the case may be, the chairman resign his seat and thereupon his seat
shall became vacant. And a house may declare the seat of a member vacant, if he remains absent for
forty consecutive days of its sittings.
The resignation by a member of National Assembly emerges as follows;
a. the resignation should in writing under his hand and should be addressed to speaker.
b. The resignation may be delivered by the member personally or through any other means.
c. If the letter of resignation is delivers personally, then the member should inform the speaker that the
resignation is voluntary and genuine.
d. If the resignation is delivered by any other manes, then the speaker shall make inquiry into the
genuineness of resignation and ascertain whether is voluntary.
e. The speaker after stratification that the resignation is genuine and voluntary shall inform the national
assembly and then the seat shall be declared vacant.
f. The date of resignation of a member shall be the same as specified in the letter of resignation or if no
date has been given, then the date of its receipt by the speaker.
14. Oath of office: a person elected to a House shall not sit or vole until he has made before the house
oath in the form set out in the Third schedule.
15. Privileges of members: Article 66 explains that, subject to the constitution and the rule of procedure
in parliament, there shall be freedom of speech and no proceeding will be taken to any court for
what has been said or vote given by him in Parliament. And no person shall be liable in respect of
the publication by or under the authority of parliament of any report, paper, votes or proceedings.
The immunities, power and privileges of parliament and members shall be such as may from time to
time defined by law. Provision may be made by law to punish the person who refuses to give
evidence or produce documents before a committee of the House when duly required by the
chairman of committee so to do.
A member of an Assembly has an unqualified freedom of speech and the courts have no jurisdiction
to proceed against him for anything said or any vote given by him in the Assembly. He may say any
thing he like against any person he like, even the most slanderous things in good faith or bad faith
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and yet the Court will be powerless in the matter and the party slandered will have no remedy. The
only check of this freedom is the rule of the house.
THE JUDICATURE
THE COURTS
Establishment and jurisdiction of Courts; Article 175there shall be a Supreme Court of Pakistan, a
High Court in each province and High court in Capital, and such other courts as may be established by law.
No court has jurisdiction except what ever jurisdiction conferred on by constitution or law.
The judiciary shall be separated progressively from the Executive with fourteen years from the
commencing day.
Court in Pakistan is creature of the constitution and the law and they are to be apply law in the
settlement of disputes and controversies that are brought before them.
Jurisdiction hear means legal authority, or right and power to adjudicate, or to disclose the case.
THE SUPREME COURT OF PAKISTAN
1.Constitution of Supreme Court: The Supreme Court shall consist of a Chief Justice and so many
other members of judge as may be determined by Parliament or fixed by the president.
Supreme Court is not a Federal Court, it is the apex court and is a court for the whole Pakistan and
does not go by the principle of Federation in that fashion in which the allocations are made and distributions
take place. Supreme court in its wisdom, may decide how to mange its composition. In the case of
Muhammad Hanif Vs Sultan 1994 SCMR 279 it was held that Supreme Court being at the apex has a
constitutional duty to do complete justice” .
In the case o The State V. Zubair. The Hon’ ble Supreme Court took suo motu action in the matter
under Article 184(3) of the constitution in the view of difficulties arising out of the strict implementation of
the ratio in Zubair’ s case.
2. Appointment of Supreme Court Judges:
i. Chief Justice will be appointed by the President.
ii. Other judges by President after consultation with Chief Justice.
A person who is appointed as judge of Supreme Court of Pakistan shall be;
a. citizen of Pakistan.
b. has for period of five years experience in the High Court.
c. not less then fifteen years of advocate in High Court.
3. Oath of office: before entering into the office the chief Justice will take oath before the president,
and other judges before chief Justice, in the form of third schedule.
4. Retiring Age: age of sixty five years will be age of retirement for the judge of Supreme Court,
unless he sooner resigned or removed.
5.Acting Chief Justice: at any time when :
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a. the office of Chief Justice is vacant or
b. The chief justice is absent or unable to perform the functions of this office. The president
shall appoint the most senior of the other judges of the Supreme Court as act as Chief Justice
of Pakistan.
6.Acting Judges: at any time when, the office of judge of the Supreme Court is vacant or a judge of
Supreme Court is unable to perform his duty, the president may in the manner provided in Article 177
appoint a judge of High Court who is qualified to be appointed as judge of Supreme Court to act temporarily
as a judge of SC.
7.Appointment of Ad-hoc judges: when ever there is need to increase number of judges of Supreme
court temporarily, the Chief Justice of Pakistan with the approval of the President, request any person who
has held the office of Judges of the Court, or with approval of the president and consultation with the Chief
Justice of High Court, require a judge of that court qualified for appointment as a judge of the SC to attend
sitting of the SC as an ad-hoc judge for such period as may be necessary.
8. Seats of Supreme Court: The permanent seats of SC shall, subject to Clause 3 be at Islamabad.
The SC may from time to time sit in such other places as the Chief Justice of Pakistan, with the approval of
the President may appoint.
9. Original jurisdiction of Supreme Court: Article 184. The SC shall, to the exclusion of every
other court have original jurisdiction in any dispute between any tow and more government. It means
between state V State, Federal V State, State V Federal. Declaratory judgment will be announced only. All
those powers which are conferred in 199 to the High Court hat is given to Supreme Court as well if it is
involve to national and public interest.
10. Appellate Jurisdiction of Supreme Court: Subject to article 185 the SC shall have jurisdiction to
hear and determine appeals from judgments, decrees, final orders or sentence of the High Court.
The appeal in SC will be accepted if;
a. if the High Court has no appeal reversed an order of acquittal of an accused person and sentenced
him to death or imprisonment for life or revision has enhanced a sentence to a sentence as aforesaid
or,
b. if he High court has withdraws for trial before itself any case from any Court subordinate to it and
has in such trial convicted he accused person
c. if the High Court has imposed any punishment on any person for concept of High Court.
d. When the judgment decree or final order in respect of the property given above have been varied or
set aside by the court immediate below.
e. The High court has punished a person for contempt of the kind mentioned in Article 204.
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f. The High Court certifies that a substantial question of law is involved in the case as to the
interpretation of the Constitution.
11. Resignation: Article 206, A judge of Supreme Court or a High Court may resign his office by
wiring under his hand addressed to the President.
A judge of High Court who does not accept to be judge of Supreme Court shall be deemed to have
retired from his office and such retirement, shall be entitled to receive pension calculated on the basis of the
length of his service.
12. Judge not to hold office of profit, etc: Article 207
A judge of Supreme Court shall not;
a. hold any other office of profit in the service of Pakistan if his remuneration is thereby increased,
not being a judicial or quasi-judicial office or the office of Chief Election Commission or of Chairman or
member of a law commission or of Chairman or member of Council of Islamic Ideology, before the
expiration of two years after he has ceased to hold that office.
b. occupy any other position carrying the right to remuneration for the rendering of services.
SUPREME JUDICIAL COUNCIL
1. Basic Articles: U/A 209, 210, 211
2. Supreme Judicial Council: Article 209, there shall be a supreme Judicial Council of Pakistan.
3. Composition: The Council consists of five judges;
1. Chief Justice of Pakistan.
2. Two most senior judges of SC.
3. Two most senior judges of HC.
The ineter se seniority of the Chief Justice of the High Court shall be determined with reference to
their appointment as Chief Justice, if the appointment is same, then with reference to their dates of
appointment as judges of any High Court.
4. Appointment of Judges: If a member of council is absent or unable to act due to illness or any
cause then;
a. If such member is judge of SC, the judge of SC who is next in seniority below the judges who is
unable to act.
b. If he is the Chief justice of High Court, the Chief Justice of another High Court who is next in
seniority then him.
5. Report of Inquiry: if there is any inquiry by the council, the opinion of majority shall prevail, corium
is 3/5 and the report shall be expressed in terms of the view of majority to the president.
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6. Inquiry by the Supreme Judicial Council: if on information from any source or the Council the
president is of the opinion that judge of SC or HC is;
1.
Incapable of the judge to perform the duties of his office properly arising from any physical or
mental incapacity.
2.
Misconduct of the judges.
The president can refer this to the Council for inquiry. If after the inquiry into the matter, the Council
reports to the president that it is on the opinion of:
a. That he is incapable of performing or has been guilty for misconduct.
b. He should be removed from his office.
The president may remove him.
7. The Nature of inquiry: inquiry into the conduct of Judge is neither a criminal indictment nor even a
quasi-criminal proceeding but it is mainly an administrative proceeding conducted by a domestic forum to
examine the professional fitness of a judge. The subject matter of these proceedings is neither civil rights
and duties nor criminal liabilities. It is simply the conduct of a judge which is to be properly reviews in the
interest of the purity and honor of the judiciary.
8. Removal of Judge of Supreme Court: judges of Supreme Courts cannot be removed from their
offices except in accordance with the provision of Article 209 of the Constitution but since they are not
immune from accountability therefore, if situation arises and the President of Pakistan also considered
necessary the proceedings can be initiated against a judges with respect to his conduct n terms of Article
209 of the Constitution. Principle is states in PLD 2008 SC 522.
9. References Dated 9-3-2007 against Chief Justice of Pakistan: the Reference dated on 9-3-2007
made by the President on advice of Prime Minister against Chief Justice of Pakistan was thoroughly
examined by the Full Bench of the Supreme Court in its original jurisdiction. By the majority view, the
petition made by the Chief Justice challenging the reference was allowed as result thereof the reference in
question was declared liable to set aside, by virtue of short order.
10. Power of the Council: the council, for the purpose of an inquiry, has the same power as the Supreme
Court and can enforce attendance of any person or discovery or production of any document, and can issue
any direction or order for the same. The proceedings before the council or its report to the President are not
to be questioned in any Court of law.
11. Functions of the Council: the council is charged with two fold functions;
a. to issue a code of conduct for observance by the judges of the Supreme Court and the High Courts;
and
b. on a reference from the President to hold an enquiry into charges of physical or mental incapacity or
of misconduct against a Judge of Supreme Court or a High Court.
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12. Bar of Jurisdiction: Article 211 explains that, the proceeding before the council, its report to the
President and the removal of a judge under Clause (6) of Article 209 shall not be called in question in any
court. This is finality clause. It means that the report of the council cannot be challenged in any court.
13. Rule of Natural Justice Nemo Judex in causa sua, No one is may be judge in his cause
CONTEMPT OF COURT
Article 204 explains the contempt of Court. Court means here Supreme Court or High Court. A court
has power to punish who:
1. Abuse, interfere with or obstructs the process of the court in any way or disobeys any order
of the court.
2. Scandalize the court or otherwise does anything which tends to bring the Court or a judge of
the court into hatred, ridicule or contempt.
3. Does anything which tends to prejudice the determination of a matter pending before the
court; or
4. Does any thing which, by law, constitutes contempt of the Court.
Purpose of law of Contempt: The law of contempt has two purposes namely
1. The necessity of maintaining faith of the people in the dignity and uprightness of the court.
2. To protect the presiding officers from intimidation so that justice could be administered without
any fear and doubt.
Speech of the member of NA enjoys qualified privilege subject to constitution and are amenable to
contempt of Court Proceeding under Article 204. PLD 1988 Kar. 309.
History of the law of Contempt: the jurisdiction to punish for contempt was enjoyed by the superior court
before the coming into operation of the Constitution of Pakistan under the Common law of England. It was
an inherent jurisdiction. It authorized the Courts to deal effectively with all that had a tendency to hinder the
normal course of justice or affect the dignity of the court. The reason for the existence of this jurisdiction
was that unless Courts were armed with such a jurisdiction they could not properly function.
Apology: the apology with regard to objectionable disparaging remarks, or indecent publication or
contemptuous expression of derogatory speech by itself does not provide adequate remedy. No doubt in the
modern developing trends the approach of the Court is considerably liberal. If apology’ s tendered, it would
not automatically purge the condemner from the contempt and may not necessarily be accepted unless the
court from surrounding circumstances is satisfied abut his bona fides. The acceptance or rejection of
apology therefore, depends upon the volume and nature of contempt allegedly committed.
Some of fundamental for accepting the apology can be enumerated as;
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a. the apology must be offered at the earlier stage of the contempt proceedings and may not be
postponed till fag-end of the proceedings.
b. The apology must be unconditional, unreserved and unqualified.
c. The apology should not only appear but must be satisfactory represent sincere and genuine
remorse and should not be behalf hearted or mere formality.
d. The contemnor should not endeavor to justify his conduct.
Contempt of Court Act, 1976: Contempt of Court Act is not confined to the Supreme Court and the High
Courts and covers all courts including subordinate Courts. It is provided in the enacted law. PLD 1996 SC
42.
ISLAMIC PROVISIONS
1. Basic Articles: U/A 227-231.
2. Basic Islamic Provisions in the Constitution
1. Nam of the State (Islamic Republic of Pakistan)
2. Fundamental rights.
3. Islam to be state Religion.
4. President to be a Muslim.
5. Qualification of MNA’ s
6. Disqualification of MNA’ s
7. Council of Islamic Ideology.
8. Federal Shariat Court.
9. Hadood Laws.
10. Principle of Policy.
11. Concept of Shura and Consultation.
12. Protection of Minorities.
3. Agendas of Council of Islamic Ideology: It in Article 27 that:
a. all existing laws shall be brought in conformity whit the injunctions of Islam as laid down in the
Holy Quran and Sunnah.
b. no law shall be enacted which is repugnant to Such Injunctions, means that no legislation can
make laws repugnant to Islam directly or indirectly.
Here it will not affect the personal laws of non-Muslim citizen or their statues as citizen. This article
of Constitution is related to the Council of Islamic Ideology and to be enforced by that, whereas Article 203B Federal Shariat Court is to be enforced though Courts.
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4. Composition of Islamic Council: Article 228 explains that, Islamic Council shall consist of such
members, being not less then eight and not more then twenty members, as the president may appoint from
amongst person having knowledge of:
a. the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah or,
b. understanding of the economics, political, legal or administrative problems of Pakistan.
When the president appoints the members shall ensure that;
i. practicable various school of thought are represented in the council.
ii. not less then two judge of the SC or HC.
iii. not less then four, experienced of not less then fifteen years in Islamic research.
iv. one member is a woman.
The president will elect one person as a Chairman of the Council
5.Duration of membership: The member shall hold office for a period for three years.
6. resignation and removal of member: A member may, by writing under his hand addressed to the
President, resign his office or may be removed by the President upon the passing of a resolution for his
removal by a majority of the total membership of Council
7. Reference by Parliament to Islamic Council: The President, Governor of a province may or if
two fifth of is total membership so requires a house or provincial assembly shall, refer to the Islamic
Ideology for advice any question as to whether a proposed law is or is not repugnant to the injunction of
Islam.
8. Functions of the Islamic Council: Article 230 explains the function of Council:
1. Recommendatory functions:
a. to make recommendations to Parliament and Provincial Assemblies as to the ways and means of
enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all
respects in accordance with the principles and concept of Islam as enunciated in the Holy Quran and
Sunnah.
b. to make recommendation as to the measure for bringing existing laws into conformity with the
injunction of Islam, and stages of such measures should be brought to effect.
c. to compile in a suitable form, , such injunctions of Islam can be given legislative effect.
2. Advisory functions: the president, the governor of a province or if two fifth of its total
membership so requires, a House or a provincial assembly, may refer for advice any question to the effect
that proposed law is not repugnant to the injunction of Islam. The advice of the council seems to be optional
and may or may not be accepted by eh body making reference.
If a question is referred by a house, a provincial Assembly, the president or Governor to the Islamic
Council, the Council shall within fifteen days inform the House, the Assembly, the President, or Governor
as the case may be.
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If the House or Provincial Assembly, President or Governor considered a case in the public interest,
the making of the law should not be postponed, the law may be made before the advice of the council is
furnished.
Provided that if the council advises that the law is repugnant to the injunctions of Islam, they shall
reconsider the law so made.
Besides submission of annual interim report it is incumbent to the council to submit its final report
within seven years in respect of the functions assigned to it. The reports whether interim or final thus
received will have to be laid before the parliament or a provincial Assembly as the case may be for
discussion within six months of its receipt which shall enact laws in respect within a period of two years of
the final report.
9. Rules of procedure: the proceedings of the Islamic Council shall be regulated by rules of
procedure to be made by the Council with approval of the President.
Important Note: In this Note I did not write about Federal Shariat Court so this has to be referred to the
related Articles of the constitution and don’ t ignore it.
I
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Prepared by: Mohammad Ismail
Public International Law-II
Historical Background of War
Before 1945 is called pre-charter law and after that is called post charter law.
16 hundred years back war theory and behavior of war was dominated by Christian Roman Catholic
Church, it dominated the attitude of state toward war. How war should be fought. For the first time Saint of
Roman Catholic Church Augustine presented a theory about war, the theory is known as “ Just war theory”
or Bellium Jus Tum. He defined as: “ Just wars are usually defined as those which avenge injuries, when
the nation or city against which warlike action is to be directed has neglected either to punish wrongs
committed by its own citizens or to restore what has been unjustly taken by it. Further, that kind of war is
undoubtedly just which God Himself ordains” .
Two things emerge from this definition:
1. It is just if any one wage war against the state which started war against that. Wrong committed or
right violated.
2. It is also just if it is ordered by God.
These ideas continued to be accepted for over 1,000 years. War was regarded as a means of
obtaining reparation for a prior illegal act committed by the other side (the reparation sought had to be
proportional to the seriousness of the illegality). In addition, wars against unbelievers and heretics were
sometimes (but not always) regarded as being commanded by God.
Hugo Grotius (He was considered father of International law by Westerns) but indeed father of IL
was Imam Abu Hanifa and Imam Shaybani the codifier of that law. Dr. Hamidullah referred in his book (the
Muslim conduct of state) p.63 about this that, books on Siyar are attributed to Abu Hanifah, to his pupils
Abu Yusuf, Muhammad Shaibaniy, Zufar, ect to his contemporaries Malik, Al Auzaiy, ect.
Hugo also exploded the just war theory, he was a big supporter of this theory in 17 th Century.
In the late sixteenth century the distinction between just and unjust wars began to break down but
18th and 19th Century there were different ideas about war theory.
What does just cause mean?
(Wrong committed or right violated) Akhurst says. “ A wrong received or right denied” . Exe: A-----B state B can wage against A war if A does not give right of B so B can wage war against state A.
Till 17th Century the general concept about war was that war is illegal but if there was just causes.
Late 17th Century the concept of nation-state system emerged due to this system the states began to fight
each other in bitter way, so many wars were fought in severe manner. They were like enamels in very small
issues. The nation they thought that they have to formulate laws for war. How it started and causes of it.
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There should be rules and treaties should be that all states should follow those rules in the conduct of war.
Laws of war should be formulated. Law to resort to war and law of conduct of war, which is known as
Humanitarian law. This is refinement theory.
During 17th Century the emphasis was given to state authority, sovereign body, it was considered
that if state considers that was is to be initiated against another state. And cause of war is just the state can
wage war against another. So here authority was given to state before it was to the nations, people, groups,
tribes, ect. The concept was refined to the extent of state. The right is in here right of state. It was refining
version of just war theory.
From 18th and 19th Century emergence of “ legal Positivism” is that state was considered as source
of law. Before 17th there was no state concept, but in 18th because of this theory state was considered as a
source of law. It means state was considered as the creator of the law and having the authority to create the
law, before it was to any person. Law was deemed as the creator of the state or state was the creator of the
law. Because of this theory and consideration of state as the creation of the law the international law,
philosopher concluded that custom (state practice) and treaty should be considered as the source of
international law.
For legality of an act after emerge of legal positivism the state had to think about that and it became
a practice for states. After the states were looking for legality of an act referring to customary law, if it was
allowing or not? If does not allowed then to treaty laws, if both of them were silent on that act then it was
illegal act.
League of Nations 1919, WWI (1914-1918)
The league of nations have decided that war is not solution for settlement of disputes. We can settle
our disputes with negotiation. Only destruction because of war can be caused. No achievement because of
war. War is not the solution of each and every thing. They came to an agreement, or a covenant which is
known as “ the Covenant of league of nations” it was established in the end of 1919.
On that time state was on the view that she is using force because of some self-defense, this was the
first plea. because she found some threat from another state.
State A- Using force against B because of this,
State B- self- defense
Second plea was taken by states for using forces was Reprisal (Retaliation) because state A used
forced to State B so she has to use as well for reprisal of that.
The third plea for initiation17 of war was Rescue, to rescue the national abroad. Article 2.4 banned
use of force to any state except self- defense.
Before state was not oblised till the cause the war against other state. It was not necessary justify the
war, why? Because not state was bound there was no legal ban on war. No legal obligation was there so she
was not oblised to till the cause of war against another state.
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. beginning, starting.
A new terminology was used by the states after the establishment of league of nation “ Force short
of war” using force but not a war just to use force for self-defense. Not a full fledged war. Because of
reprisal, then to enter the territory it is not full fledged war. It is known as a force short of war. Huge
Convention 1907 bans the use of war for debts. That state cannot wage war against another state which is
debtor. This term was sued to avoid the responsibility of the conduct of war. This is an exception for he
conduct of war.
For the first time league of nations puts some conditions for the legality of war. If those conditions
were meant the war will be legal. Those conditions were mentioned in Covenant of League of Nation
Articles 10-16. If these conditions are not fulfilled the war was illegal.
Article 12 (1) of the Covenant of League of Nations explains war but it was not prohibited
altogether. It says, “ The members of league agree that, if there should arise between them any dispute
likely to lead to rapture, they will submit the matter either to arbitration or judicial settlement or to inquiry
by the counsels and they agree in no case to resort to war until three months after the award by the
arbitrators or the judicial decision or the report by the council. This shows the partial ban on war not
complete ban on use of force.
During 1920 different efforts were made to convert this partial ban to a complete ban, good example
of this was the pact of Paris “ Kellog Briand18 Pact 1928” . The pact of Paris was general treaty for the
renunciation19 of the war, at the beginning it was between USA and France, after some times so many states
entered and concluded this treaty.
State policy? How state should have relationship with other states? Before this Pact the policy of any state
was that to wage war against any state, if it was legal to that state. This for the first time in Europe the state
policy about war changed. War should be excluded from state policy. War was rejected as state policy. No
state should have policy about war against any other state exceptions are there. So self defense was an
exception to this general theory, because they did not include that self-defense was prohibited so it was
included that self-defense is an exception to this general rules. Also in this treaty there was no reference for
Force short of war so there was no legal ban on this as well , because of custom force short of war was out,
state they left to exercise. They were not using this theory any more. But majority says that use of short war
still lawful till 1945.
Net result (Conclusion)
1. General prohibition of war.
2. Emergence of self-defense as an exception.
And many treaties between 1919 to 1945 and the most important was Pact of Paris.
18
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. Kellog was Foreign Minister of USA and Briand was Foreign Minster of France
19
. rejection, denial
102
Post Charter Law 1945
UNO: United Nations Organization.
There are 19 Chapters in the Charter of UN 111 Articles. Article 2.4, Chapter 6 and 7 relate to our
topics.
This charter was singed on 26, June 1945 and Charter was singed in San Francisco. Its name was
United Nations Conference on Intentional organizations and this charter came to practice on 24 th October
1945.
Organs of United Nations
1. General Assembly.
2. Security Council, most important, consists of 15 members which are 5 formals which are USA, UK,
USSR, China, and France they have power of Veto and 10 other members are temporary.
3. Economic and social council.
4. Trustee-ship council.
5. ICJ.
6. Secretariat (New York)
What are general rules for making Charter? It is in the preamble of this Charter:
1. To protect fundamental human rights.
2. To protect social and economical rights of state.
3. International peace and security.
4. To give equal rights for man and women.
Before this there was no protection of fundamental rights and peace and security, no social and
economical guarantee. So all these problems were there, the UNO has been established to make good of
these things.
Relationship of Pr-Charter and Post Charter Law
Article 2 (4) refrain from threat or use of force and explains territorial integrity or political
independence of every state, and war is inconsistent with the purpose of UN. These issues which are
discussed in this article.
Two opinions emerged about the use of force in this article.
1. Permissive school.
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2. Restrictive School.
1. Permissive School: they have four arguments about their views:
1. That the pre charter customary law is not abrogated altogether by UN charter regarding war. The
customary right will remain as well. In pre-charter law state was enjoying the right of waging war and we
use same right of wage of war.
2. It is literally interpreted that mean if you use force not distributing territorial integrity or political
stability of any state or if not inconsistent with purposes of UN so it is allowed to use force.
3. if state use or threat use of force and that use of force or threat does not occupying the territory it
is not illegal, this kind of use of fore is legal and lawful. If it does not result the occupation of that state, so it
is allowed such as SSS (Swift Surgical Strive) which Israel has done in 1976 in Entebbe Airport.
4. It will be legal to use force for the promotion20 of purpose of UN Charter. Example; humanitarian
intervention by NATO in 1998-99 in Serbia.
2. Restrictive School: they say:
1. pre-charter law has finished for all practical reasons which war was starting on that time. The
character is the governing laws of state. It is the charter which is governing law of states for all the practical
reasons. So all states are members of UN so charter is the governing in law and no legal to post.
2. Article 2 (4) puts comprehensive ban to threat or use of force technically.
3. The phrase which is used in Article 2.4 shows the totally of state and does not provide a
loophole21 to take action against any state.
4. The phrase “ any other manner inconsistent …..” Marton Daxion says that it means to exclude the
colonies to use force against them and it is not for such purpose which permissive school argued.
5. The only exception is Article 51 which is collective self-defense authorizing by security council,
which are expressly mentioned or new custom which is established after UN Charter.
Concluding that drafting history of Article 2.4 will help us and general purposes of charter and
analyzing these argument we will find that restrictive school of thought is according the UN charter. The
technically of this charter shows that this is well article. The argument of the this theory is now the
arguments of state which they have discussed in San Francisco
Self Defense : there are two aspects:
1. Customary self-defense.
2. self defense in UN charter (Article 51)
a) Permissive School (Inherent)
b) Restrictive School.
Generally the permissive school is in opinion that right of customary self defense is preserved by
UN charter, means that what ever was the right of customary defense is acknowledged by UN Charter. But
20
21
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. support.
Ambiguity, excuses.
restrict school is of the opinion that the nature of self defense has been changed by UN Charter. Before the
concept was something else but now it is restricted by Article 51 of UN charter. The nature and extent have
been changed. State can use force in exceptional cases. Customary self defense promulgated by permissive
school and banded by restricted school.
Customary Self-defense: there was no general prohibition on use of force. No concept of such prohibition
before Kellog-Pact. So no concept of self defense was on that time in 16 th till 8th Century but in 18th and
beginning of 19th century decided that use of force is not he way out. If there I necessity to use force, there
should be an exception to use force. And argument should be there, it is taking plea in self-defense.
Gradually this concept came to the states. In the beginning they were giving justification for use of force
such as self-defense. These justifications were not before 18th. For the first time bind was imposed for use of
force in Kelloge Pact, because of this treaty self defense was created an exception to the general rules. So
the customary of self-defense was also there. It means in customary international law the concept of self
defense emerged.
In 1837 an incident happened which is known as “ The Caroline Incident” from this incident and
statement of US sectary it is concluded that what is the scope of self-defense. And definition of self defense
was given by him in page 314 second and third paragraph. . The statement of Daniel is so much
important. Preparation was in USA for armed forces. British force came to Canada USA seized the Caroline
in New York. The Caroline set on fire. And two citizen of USA were killed during attack. One army was
arrested which was involved in this action. The American charged him on murder and destroying the
Caroline. The British they protested that it is self-defense. Denial22 he formulated some points for selfdefense; there must be a necessity of self-defense, and should be instant, overwhelming 23, leaving no choice
of move, and action unreasonable… The conclusion if statement; following three conditions if are fulfilled
then to exercise of right of self defense is legal or good in means:
1. Force which is used should be against an immediate threat in exercise of self-defense.
2. If the threat is so overwhelmed that there is no chance to take any alternative action.
3. The use of force in self defense should be proportionate to the threat seem by the state.
Peaceful Settlement and ICJ
Law of authorization
Interpretation of authorization resolution
he was sectary of state (FM) of USA.22
23
.over powering
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Jihad
Jihad is used as terrorisms by the powers of western now a day. Jihad in the sense of Qital to remove
this spirit and the meaning of it from the heart of Muslim Generations. Western wants young generation to
hate this word. This word has been used synonymous to terrorism. Why to start Jihad? How to fight Jihad or
conduct of war and causes of Jihad. Law of use of force in contemporary is two types:
1. By classical Fuqaha.
2. By Contemporary (Modern) scholars, like Majid Khazori, Maudoodi, Hamidullah , Wahbtul
Zuhaylee, Yusuf Al Qardawee, etc.
When ever cause exists so the rule exists as well. ‫العلةكوالمعلول‬
Jihad comes from ‫ كجـكه كد‬،‫ ك ِجهبدا كوكمجبههة ك‬،‫ كيجبهه ك‬،‫ جبهه ك‬it is origin of Jihad. There are two meaning wider &
narrower. In wider sense any kind of struggle being made by a Muslim for the domination of Islam. And in
Narrower sense jihad is in the meaning of Qital. Jihad is the armed struggle made by a Muslim for the
domination of Islamic rule. In some Makkahe Surah Jihad is used in the sense of wider, but in Madani
Surahs used in the sense of Qital. Here some verses about Jihad in the Holy Quran.
.‫ك(كفالكتطعكالكبفرينكوكجبهههمكل كجهبداكابيرا)ك‬25‫سورةكالفرقبنكك‬
)‫ك(كوالذينكجبههواكفينبكلنههينهمكسبلنبكوإنكهللاكلمعكالمحسنين‬96‫سورةكالعنكبوتك‬
)...‫كهوكاجتببامكوكمبكجعلكعليكمك‬،‫ك (كوجبههواكفيكهللاكحقكجهبدهك‬87‫سورةكالحجك‬
‫ ك( كإنمب كالمؤمنون كالذين كأمنوا ك لبهلل كو كرسول كثم كلم كيرتبلوا كو كجبههوا كلأموالهم كو كأنفسهم كفي كسبيل كهللا كأولئك كهمك‬52‫سورة كالحجرات كمهني ك‬
)‫الصبدقونك‬
‫ ك ( كوإذا كأنزلت كسورة كأن كأمنوا كلبهلل كو كجبههوا كمع كرسول كاستأذنك كاولوا كالطول كمنهم كو كقبلوا كذرنب كنكن كمع كالقبعهين)ك‬79‫سورة كالتولة ك‬
It is better to study Jihad from Classical Fuqaha.
Causes of Jihad According to Classical
1. Kuffur: According to Imam Shafee
Causes of
Jihad
and Zawaheri’ s the cause of Jihad is Kufffur, it
means
Kuffur according to Imam Shafee
Domination of Kufur some contemporary scholars
Muhareba (Aggression) According to Ahnaf
Muslim have to wage war against non-Muslims till all of them finishes. If cause is there so then rule should
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be also there, it means to demolish them or to finish them Muslims have to wage Jihad. There are many
objection on this view such is if kuffur is the cause then why peace treaty and concept of Darul Islam and
Jezya, etc.
2. Aggression: it is according to Imam Abu Hanifa, Shaybani, Abu Yousuf, Sarkhsi, etc. It means that cause
of war is Muharaba, if any group of non-Muslim wage war against any other Islamic state then that state
fights them. Self-defense is included in it. Any one who fights Islamic state, then that state can fight them.
Objection on first view
1. If it is Kufur then why the prophet in his teaching prohibited to kill women, children, old person who
are not participating in war or solider who is arrested and injured and cannot fifth against you. No
longer participation in hospitality.
2. Why non-Muslims are allowed to live with Muslims by paying Jizya.
3. Concept of peace treaty will be finished if it is Kuffur.
Because of these objections some scholar they chosen the second opinion which is Domination of Kuffur.
The jurists they are using some verses of Holy Quran as their arguments in Kuffur or Shawkati
Kuffur.
)‫ك (يآيهبكالذينكآمنواكقبتلواكالذينكيلونكمكمنكالكفبركوليجهواكفيكمكغلظة‬551‫سورةكالتولةك‬
)‫ك(وقبتلواكفيكسبيلكهللاكالذينكيقبتلونكمكوالكتعتهواكإنكهللاكالكيحبكالمعتهين‬561‫سورةكالبقرةك‬
Some jurist says that the verse of 123 of Surahe Tawba is abrogated by this ayat of Suraye Baqara,
so this argument is weak, but it is Hamlul Mutlaq alal Muqayad. Some jurists they object Muhabrab, the
Muslims they are oblised to fight them and it is against some traditions of the prohibit (PBUH)
.)‫كجوركجبئركوكالكعهلكعبدلكحت كيقتلكالهجبل‬...........‫قول كعلي كالسالمك(كالجهبدكمبضكإل كيومكالقيبمةك‬
.)‫قول كعلي كالسالمك(كالجهبدكواجبكمعكالكأميركلراكابنكأوكفبجرا‬
.)‫كوإذاكلقيتموهمكفأصبرواكوالعلمواكأنكالجنةكتحتكضاللكالسيوفك‬،‫قول كعلي كالسالمك(كالكتتمنواكلقبءكالعهوكوكاسئلواكهللاكالعبفيةك‬
.)‫ك (وإنكنكثواكأيمبنهمكمنكلعهكعهههمكوكطعنواكفيكدينكمكفقبتلواكائمةكالكفركإنهمكالكأيمبنكلهمكلعلهمكينتهونك‬55‫سورةكالتولةك‬
If we conclude the cause of war as aggression then Jomhurl Fuqaha they divided the aggression to
seven kinds; six out of seven according to all jurists and one of them according to some jurists.
1. External aggression against Darul Islam. If an armed attack accords to the territory of Darul Islam
that is aggression, in this case the verse number 190 of Suratul Baqara will be applied. ‫(وقبتلواكفيكسبيلكهللاكالذينك‬
)‫يقبتلونكمكوالكتعتهواكإنكهللاكالكيحبكالمعتهين‬
In this case it becomes Wajib to every body to defense from Darul Islam and wage Jihad against
them.
2. Breach of peace treaties: if Darul Islam and Darul Harb they have peace treaty then that becomes
Darul Muahad. If they breach this is considered as aggression to Darul Islam. Then Muslims are under
obligation to fight them.
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‫سورةكاالنفبلك‪( 89‬كوالذينكأمنواكولمكيهبجرواكمبكلكمكمنكواليتهمكمنكش ءكحت كيهبجرواكوكإنكاستنصروامكككككككككككككككككككككككككككككككك‬
‫كككك فيكالهينكفعليكمكالنصركإالكعل كقومكلينكمكوكلينهمكميثبقكوهللاكلمبكتعملونكلصير)‪.‬ككككككك‬
‫‪3. Cruelty against Muslims outside Darul Islam. Muslim residing other than Darul Islam and he has‬‬
‫‪been cruelty treated by non-Muslims that is considered as aggression to Muslim and Darul Islam. To take‬‬
‫‪them out of this cruelty, fight is allowed. As it is in mentioned in Holy Quran‬‬
‫وكمبلكمكالكتقبتلونكفيكسبيلكهللاكوكالمستضعفينكمنكالرجبلكوالنسبءكوكالولهان‪........‬‬
‫‪4. To stop people forcefully from the way of Islam (Allah), some scholar they have described that as‬‬
‫‪Fetna.‬‬
‫سورةكالبروجك‪51-7‬ك (كومبكنقمواكمنهمكإالكأنكيؤمنواكلبهللكال عزيزكالحميهك‪،‬كالذيكل كملككالسمواتكواالرضكوهللاكعل كالكش ءكشهيهك‪،‬ك‬
‫إنكالذينكفتنواكالمؤمنينكوالمؤمنبتكثمكلمكيتولواكفلهمكعذابكجهنمكوكلهمكعذابكالحريقك)‬
‫سورةكالحجك‪ 01-16‬ك (كأذنكللذينكيقبتلونكلأنهمكظلمواكوإنكهللاكعل كنصرهمكلقهيرك‪،‬كالذينكأخرجواكمنكديبرهمكلغيركحقكإال كأنكيقولواك‬
‫رلنبكهللاك‪،‬كولوكالكدفعكهللاكالنبسكلعضهمكلبعضكلههمتكصوامعكوكليعكومسجه‪).......‬‬
‫سورةكالبقرةك‪565‬ك (وكاقتلوهمكحيثكثقفتموهمكوأخرجوهمكمنكحيثكأخرجوامكوالفتنةكأشهكمنكالقتلك‪)......‬‬
‫‪4. Aggression against Islam : propagating against Islam‬‬
‫سورةكالبقرةك‪529‬ك(كالكإ اراهكفيكالهينك‪،‬كقهكتبينكالرشهكمنكالغيك‪،‬كفمنكيكفركلبلطبغوتكوكيؤمنكلبهللكفقهكاستمسك)‬
‫سورةكالكهفك‪56‬ك (كوقلكالحقكمنكرلكمك‪،‬كفمنكشبءكفبليومنكوكمنكشبءكفبليكفركإنبكأعتهنبكللضلمينكنبراكأحبط‪)...‬‬
‫سورةكالمبئهةك‪27‬ك(كوإذاكنبديتمكإل كالصالةكاتخذوهبكهزواكولعببكذلككلأنهمكقومكالكيعقلونك)‪.‬‬
‫سورةكالتولةك‪55‬ك (كوإنكنكثواكايمبنهمكمنكلعهكعهههمكوطعنواكفيكدينكمكفقبتلواكأئمةكالكفركإنهمكالكأيمبنكلهمك‪)....‬‬
‫سورةكالنسبءك‪ 09-00‬ك (ألمكتركإل كالذينكأوتواكنصيببكمنكالكتببكيشترونكالضللةكوكيريهونكالسبيلكوهللاكأعلمكلأعهائكمكوكاف كلبهللكوليبك‪،‬كواف ك‬
‫لب هللكنصيراك‪،‬كمنكالذينكهبدواكيحرفونكالكلمكعنكمواضعف كوكيقولونكسمعنبكوعصينبك‪).....‬‬
‫‪6. Baghawat: fasad in side Darul Islam (Disturbance) rebellions‬‬
‫سورةكالمبئهةك‪ 11‬ك (كإنمبكجزؤاكالذينكيحبرلونكهللاكورسول كوكيسعونكفيكاالرضكفسبداكأنكيقتلواكأوكيصلبواكأوكتقطعكأيهيهمكوأرجلهمكمنكخالفك‬
‫أوكينفواكمنكاالرضك‪،‬كذلككلهمكخزىكفيكالهنيبكوكلهمكفيكاالخرةكعذابكعظيمك)‪.‬‬
‫سورةكيوسفك‪81‬ك (قبلواكتبهللكلقهكعلمتمكمبكجئنبكلنفسهكفيكاالرضكوكمبكانبكسرقينك)‬
‫سورةكالبقرةك‪86-587‬ك (يبكأيهبكالذينكأمنواكاتقواكهللاكوذرواكمبكلق كمنكالرلواكإنكانتمكمؤمنينك‪،‬كفإنكلمكتفعلواكفأذنواكلحربكمنكهللاكوكرسول كوإنك‬
‫تبتمكفلكمكرءؤسكأموالكمكالكتظلمونكوكالكتظلمونك)‪.‬‬
‫سورةكالتولةك‪ 81‬ك(ك( ‪7. According to some jurists the power and Domination of Kuffur is also aggression.‬‬
‫يبيهبكالنبيكجبههكالكفبركوكالمنفقينكوكاغلظكعليهمكوكمبوئهمكجهنمك‬
‫‪Modern Scholars on Jihad‬‬
‫;‪1. Dr. Hamidullah: lawful wars in Islam according to him are five kinds‬‬
‫‪1. The continuation of existing wars: this type only existed in the time of Prophet (PBUH). These‬‬
‫‪were from time immemorial battle of Badur was existed from the previous time. The battle of words‬‬
‫‪changed to swords. There was no peace treaty on that time up to Sulhi Hudaybeya.‬‬
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2. Defensive Wars: if a Muslim territory has been attacked and invaded by non-Muslims to take back
the invaded territory is the obligation of Muslims. He is also in the opinion that if the behavior of nonMuslims unbearable for Muslim states, then Muslims are under obligation to wage war against that state.
Pre-emptive strike is also in defense. Preventive war is also included. Sometimes the primitive
included in preventive war declaration of jihad is not necessary.
3. Sympathetic Wars: are those wars which are fought for the help of those Muslims who are outside
Darul Islam and facing troubles of non-Muslims and being persecuted in foreign territory.
4. Punitive War: those wars fought against hypocrites, apostates, treaty breachers, and those who
refuse to pay Zakat. This war is punishment for them and against rebels as well.
5. Idealistic Wars: those wars fought for abolishing Kuffur. To uproot godlessness, and association
with God in his Divinity.
2. Dr Wahbatul Zuhaylee
3. Abu Ala Maudoodi
International Humanitarian Law
IHL: is a set of rules which seeks to limit the effect of arm conflict. It is applicable in the time of arm
conflict, during the peace then international human rights are applicable. Two kinds of Conflicts are there:
1. International Armed Conflict (IAC) two or more states are involved.
2. Non-international Conflict (NIAC) state, with some people who are armed.
3. Internationalized non-international conflict (INAC)
Applicable Laws: for IAC & NIAC
In both customary international humanitarian law. Rules and regulation which are immoral are applicable to
both of them. Hague law is applicable to both of them, but in IAC four Geneva Conventions. In NIAC only
common Article 3 of Four Geneva Conventions. Additional Protocol I of 1977 for IAC but in NIAC
additional protocol 2 of 1977.
Geneva Law: 4 Geneva Conventions are that laws which minimizes the effects of armed conflict.
Hague Law: is to restrict the means and methods of operation of war.
Back ground of IHL
Battle of Solferino 1589: Swiss nation was passing through this place, he saw wounded people on
that place and he wrote a book memory of Solferino. 38000 casualties in 15 hours. Henri Dunant he was
there and he is the founder of International Humanitarian law in 1863. Five people were there on that time.
Henri wrote a book in 1862 and in 1863 ICRC was founded. Henri in his books says that there should be
work in two aspect of wars;
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1. Establishment of organization which assists the wounded and sick military persons.
2. The states must conclude some international conventions for the protection of wounded and sick
military persona in military field.
Fundamental treaties on IHL
1. Geneva Conventions of 1864.
2. ST. Petersperg declaration of 1868. some kinds of weapon were declared unlawful.
3. Hague Conventions 1899 and 1907.
4. Geneva Gas Protocol of 1925.
5. Prisoners of War (POW) 1929.
6. Crime of genocide was prohibited 1948.
7. four Geneva Conventions 1949.
8. Two Additional Protocols (AP-I for IAC and AP-II for NIAC) 1977
9. ICC (Rome) Statute. 1998.
Geneva Convention 1 is for the protection of wounded and sick soldiers of battlefield.
Geneva Convention 2 is for protection of wounded and sick soldiers in sea.
Geneva Convention 3 is for treatment of POW.
Geneva Convention 4 is for protection of Civilian persons and objects during the war.
ICRC (International community of Red Cross)
ICRC Is an impartial, neutral, and independent organization. This is working independently, whose
exclusively humanitarian, to protect lives and dignity of war and reduce violence of non-international
conflicts.
Mandate of ICRC

ICRC is the guardian and Custodian of IHL, ICRC keeps control over IHL. They are purely doing all
active over humanitarian basis.

To maintain and disseminate the knowledge of IHL. Maintain to make such booklets that includes
IHL and to disseminate to publish and give such booklets to all the people, army and states to
different people who belongs to any place, universities, colleges, press, belligerent groups and all.
ICRC is working with the consent from the both the parties.
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
To protect and assist war victims, from both parties. If a person becomes “ horse de combat” due to
any reason ( not taking part in hostilities)

To promote IHL and its implementation.

Re-uniting families who are separated during the war and exchange of war prisoner.
Officially: it is working in 80 countries. Two recognized organization for this one is Red Cross and another
is Red Crescent. First one is for Non-Islamic countries, and second one is for Islamic Countries.
Work of ICRC in Pakistan from 1947

The people who were coming from India at the time of independence to Pakistan, they were
refugees. The refugee’ s camps were established and ICRC was helping in different categories.

In 1948 war with India POW’ s, ICRC was there to help POW’ s to re-unit them.

In 1965 war same as above POW’ s

In December 1971, 90000 soldiers surrendered and made POW. ICRC was trying to realize them
form 1972-1974. It was being completed because of ICRC.

In 1981, Soviet invasion in Afghanistan, the ICRC has official started work in Pakistan.
Basic Principles of IHL
1. Humanity: by both parties in war must be kept in mind humanity. Not to kill innocent, women,
children not to kill injured people and to give him medical treatment. A person who surrenders,
injured or horse de combat cannot be killed.
2. Distinction: during war each and every place is not legitimate target, distinction should be made
between legitimated and not legitimated targets. Such attacks prohibited that the civilian and militant
dies equally. Because of this chemical weapons are not allowed.
3. Militancy Necessity: if you feel to attack the legitimate target, necessary for military purpose. If the
ratio is more then it is not collateral damage, so it is war crime.
4. Proportionality: IHL allows to use such types which is necessary but excessive use of forces are
not allowed, such chemical, biological weapons are not allowed. Use as much force which is
required to over come the enemy. IHL does not allow exterminating enemies. The purpose of war is
not to exterminate enemies just to over take them.
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Prepared by: Mohammad Ismail
Contract Law-II
Contract of Indemnity, Guarantee, Bailment, Pledges, Agency
Q.1: What do u understand by Contract of Indemnity? Discuss the rights of indemnity holders, when
sued?
This question relates to Sections 124 and 125 of Contract Act.
Contract of indemnity is defined by which one party promises to save the other from loss caused to
him by the conduct of the pormisor himself, or by the conduct of any other person, is called contract of
indemnity.
There are two parties in contract of indemnity. Indemnifier is a person who indemnifies to another
person, and indemnified a person who is indemnified. The contract of insurance is also in fact contract of
indemnity.
A contracts to indemnify B against the consequences of any proceedings which C may take against B
in respect of a certain sum of 200 rupees. This contract is indemnity.
Rights of indemnity holder when sued?
The promisee acting within the scope of his authority is entitled to recover form the promisor in the
contract of indemnity; means that the promise has acted within the scope and authority but he lost he can
ask from indemnifier any thing which has been agreed upon he can ask for:
1. All damages which he may be compelled to pay in any suit in respect of any matter to which the
promise to indemnify applies;
2. All costs of the suit which he is complied to pay in any such suit, if he did his work prudently or
if the promisor has authorized him to bring to defend the suit.
3. All sums which he paid under the terms of any compromise of any such suit, if the compromise
is not against the order of the promisor. Which he worked prudently or if the promisor authorized
him to comprise the suit.
When A has agreed to indemnify B against any loss or injury, B is entitled to have recourse to this
indemnity and to call upon A to discharge his liability as soon as the loss or injure become imminent, B is
not bound to wait until he actually suffers any loss or injury. Therefore an indemnifier can be asked to
indemnify before the person toe be indemnified has incurred any loss.
Q.2: Define Contract of Guarantee and Discuss liability of surety?
This question relates to Sections 126-132 of Contract Act.
“ Contract of guarantee is a contract to perform the promise, or discharge the liability, of a third
person in case of his default” . A guarantee may be oral or written.
There are three people in the contract of guarantee.
1. Surety or grantor: the person who gives the guarantee is called surety.
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2. Creditor: the person to whom the guarantee is given called creditor.
3. Principal debtor: the person in respect of whose default the guarantee is given.
Creditor
Buyer
Seller
principal debtor
Surety
Seller is saying to provide money first and buyer is saying to deliver so the seller ask buyer to bring
any other party to bring guarantee. Or Surety or guarantor says for seller give to the buyer such as goods in
the case of default he will pay instead of him.
Three parties are necessary for contract of guarantee, contract of guarantee means a contract to
perform the promise or discharge the liability of other person in the case of his default. Therefore, a contract
of guarantee involves three parties, and these parties are privy to the contract.
The consideration for guarantee for surety is that the benefit of principal debtor. Anything which is
done by creditor to principal debtor may be called consideration for surety. This is explained in s.127.
A requests B to sell and deliver to him goods in credit. B agrees to do so but with guarantee from C.
C promises to guarantee the payment in consideration of B’ s promise to deliver the goods. This is
sufficient consideration for C’ s promise.
Liability of Surety
S. 128; the liability of surety is co-extensive with that of the principal debtor, unless it is provided in
the contract. It means that the liability of surety is that what ever the principal debtor is going to do so it is
co-extensive.
A guarantees to B the payment of a bill of exchange by C, the acceptor. The bill is dishonored by C.
A is liable not only for the amount of the bill, but also for any interest and charges which may have become
due on it.
A surety’ s liability is co-extensive with that of the principal debtor and they are jointly and
severally liable to pay the outstanding amount to creditor. Therefore, the person, claiming himself to be a
guarantor, cannot shirk from the liabilities incurred by him through the execution of the different documents
and the rigours of the decree.
S.129: Continuing guarantee
A guarantee, which extends to a series of transactions, is called a “ continuing guarantee” . Whether
in a particular case a guarantee is continuing or not is a question of the intention of the parties, as expressed
by the language they have employed, understanding it fairly in the sense in which it is used.
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Continuing guarantee means that governs a course of dealing for an indefinite time or by a
succession of credits, is called continuing guarantee. There should be series of transactions, of which when
the guarantee is given; some are unknown and not certain to come into existence.
S.130: Revocation of continuing guarantee
A continuing guarantee may be revoked at any time by the surety as to future transactions, by notice
to the creditor.
S.131: Revocation of continuing guarantee by surety’ s death
The death of surety operates, in the absence of any contract to the contrary as a revocation of a
continuing guarantee for future transaction. The death of principal debtor does not operate for revocation.
S.132: Liability of two person primarily liable, not effected by arrangement between them that one shall be
surety on other’ s default
Where two person contract with a third person to undertake a certain liability and also contract with
each other that one of them shall be liable upon default of other, the third person not being as party can, the
liability of two not effected to first contract.
Q.3: What do you understand by discharge of surety, discuss it in details?
This question is related to Sections 133-139. In these sections there are four situations in which
surety is discharged and three situation in which surety is not discharge we will see in detail these two
situation the first will be in which it discharges:
1. Discharge of surety by Variance24 in terms of contract
S.133 explains that, “ Any alteration made between creditor and principal debtor in the terms and
conditions of guarantee without the consent of surety or guarantor will discharge the surety as to transitions
subsequent tot the variance.
Generally a variation in the terms of a contract requires the consensus of all the principal parties.
This section postulates discharge of surety in the event of any variance in the terms of contract without the
consent of surety.
2. Discharge of Surety by release25 or discharge of principal debtor
S.134 explains that, the surety is discharge by any contract between the creditor and principal debtor,
by which the principal debtor is released, or by any act or omission of the creditor, the legal consequence of
which is the discharge of the principal debtor.
This section explains that if the creditor, without the consent of the surety, by his own act destroys
the debt, or derogates it, the surety is discharged.
3. Discharge of surety when creditor compounds26 with, gives time to, or agrees not to sue principle debtor
S.135 explains that, three things by contract between creditor and principal debtor cause discharge of
surety:
24
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. difference, inconsistency, clash, conflict.
25
By let go, go off, release.
26
Mix, amalgam
1. The creditor makes a composition with.
2. Promise to give time.
3. Not to sue, the principal debtor.
Unless the surety assent 27 to such contract. If he agrees then it will not be discharged.
4. Discharge of surety by creditor’ s act or omission impairing28 surety’ s eventual remedy
S. 139 explains that, if the creditor does nay thing which is inconsistent with the rights of surety or
omits to do any act which his duty to the surety, and the eventual29 remedy of the surety himself against the
principal debtor is thereby impaired, the surety is discharged. Now I will explain the situations in which
surety not discharged:
1. Surety no discharged when agreement made with third person to give time to principal debtor
S. 136 explain that, where a contract to give time to the principal debtor is made by the creditor with
the third person not with the principal debtor surety is not discharged.
C, the holder of an overdue bill of exchange drawn by A as surety for B, and accepted by B,
contracts with M to give time to B. A is not discharged.
2. Creditor’ s forbearance30 to sue does not discharge surety
S. 137 explain that, mere forbearance on the part of the creditor to sue the principal debtor or to
enforce any other remedy against him does not discharge the surety.
Actually S.135 enacts that a contract between the creditor and the principal debtor by which the
creditor promises not to sue the principal debtor discharge the surety. Btu there must be a positive
agreement not to sue and mere neglect to sue will not discharge the surety. A mere forbearance to sue the
principal debtor will not discharge the surety.
3. Release on one co-surety does not discharge others
S. 138 explains that, where there are co-sureties, a release by the creditor of one of them does not
discharge the others; neither does it free the surety so released from his responsibility to the other sureties.
Q.4: Co-Surety and liability of co-sureties?
Sections 144-147 of Contract Act relate to co-surety.
Guarantee on Contract that a creditor shall not act on it until co-surety joins-S.144 explains
that where a person gives a guarantee upon a contract that the creditor shall not act upon it until
another person has jointed in it as co-surety, the guarantee is not valid if that person does not join
that co-surety.
Co-sureties liable to contribute equally
S.146 explains that, where two or more persons are co-sureties for the same debt or duty, may be
jointly or severely or under the same or different contract, with our without the knowledge of each other, the
27
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aggress
. damaging, harming.
29
Final, ultimate.
30
. mercy , to control
co-sureties in the absence of any contract to the contrary are liable as between themselves, to pay each an
equal share of the whole debt, or of that part of it which remains unpaid by the principal debtor.
Liability of co-sureties bound in different sums
S.147 explains that, co-sureties who are bound in different sums are liable to pay equally as far as
the limits of their respective obligations permit.
A, B and C as sureties for D, enter into three several bonds, each in a different penalty, namely, A in
the penalty of 10000 rupees, B in that of 20000 rupees, C in that of 40000 rupees, conditioned for D’ s duly
accounting to E. D makes default to the extent of 30000 rupees. A, B and C are each liable to pay 10000
rupees.
Q.5: Define Bailment, bailor and bailee?
Bailment: is the delivery of goods by one person to another for some purpose, upon a contract that they
shall, when the purpose is accomplished, be returned.
Bailment is a technical term of the common law; it might mean any kind of handing over. It involves
change of possession. One who has custody without possession, like a servant or a guest using his host’ s
goods.
Bailment may be;
a) For the exclusive benefit of the bailor.
b) For the exclusive benefit of the bailee.
c) For the mutual benefit of both.
This definition emphasizes different features of bailment;
1. There must be actual or constructive delivery.
2. Of goods.
3. By the owner called the bailor.
4. to another person called the bailee,
5. For specific purpose.
6. On condition that the goods shall be returned in specie either in their original or in an altered form or
shall be disposed of according to the direction of bailor.
Bailor: the person delivering the goods is called the bailor.
Bailee: the person to whom goods are delivered is called the bailee.
If the person is already in the possession of the goods of another and they contracts bailment so he
becomes bailee, and the owner becomes bailor, and delivery in the way of bailment is not necessary.
Q.6: Effect of mixture of goods by bailee?
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Mixture of goods by bailee are twp types; with bailor’ s consent and without bailor’ s consent.
Without the bailor’ s consent are two types which can be separated, and which cannot be separated.
Effect of mixture, with bailor’ s consent, of his goods with bailee’ s: S. 155 explains that, if the
bailee, with the consent of the bailor mixes the goods of the bailor with his own goods, the bailor and the
bailee shall have an interest, in proportion to their respective shares, in the mixture thus produced.
Effect of mixture without bailor’ s consent, when the goods can be separated: S.156 explains that, if
the bailee, without the consent of bailor, mixes the goods of the bailor with his own goods and the goods
can be separated or divided, the property in the goods remains in the parties, respectively, but the bailee is
bound to bear all the expenses of separation or division, and any damage arising from the mixture.
A bails 100 bales of cotton marked with a particular mark to B. B without A’ s consent, mixes the
100 bales with other bales of his own bearing a different mark. A is entitled to have his 100 bales returned
and B is bound to bear all the expenses to have 100 bales separated, and any other incidental damage.
Effect of Mixture without bailor’ s consent, when the goods cannot be separated: S. 157 explains
that, if the bailee, without the consent of the bailor, mixes the goods of the bailor within his own goods in
such a manner that it is impossible to separate the goods bailed from the other goods and deliver them back,
the bailor is entitled to be compensated by the bailee for the loss of the goods.
A bailes a barrel of Cape flour, worth Rs.45 to B. B without A’ s consent mixes the flour with
country flour of his own, worth only Rs. 25 a barrel. B must compensate A for the loss of his flour.
Q.7: Duties of Bailee and Bailor?
Duties of Bailee
1. To take care of goods bailed; to take as much care of goods bailed as a man of ordinary prudence
would, in similar circumstances, take of his own goods of similar nature. There is no difference between
gratuitous bailment and bailment for reward. Section 151-52 of the act explains that, bailee has to take care
in ordinary prudence and if it lost or destroyed he is not liable for that. The degree of care is the average
prudent man in his own affairs under similar circumstances. The bailee is not insurer of the goods given to
him; he is not responsible for the act of God, fire, tempest 31, or public enemies. Standard of taking care is
explained in S.151 of the Act.
2. Not to make any unauthorized use of goods: the bailee is under a duty not to use the goods in a
manner inconsistent with the terms of the bailment. If he does so, the bailor can terminate the bailment; and
if any loss or damage results from the use of goods for purpose other than agreed upon, or opposed to the
one state, the bailee becomes responsible for such a loss. A lets to B his horse for his own riding. B cannot
drive the horse in his carriage, or lend to another person. If B does so A can terminate the contract.
3. Not to mix his own goods with bailor’ s goods: it is the duty of bailee to keep the goods of the
bailor separate from his own. S.155-157 explains this as I explained that in Q.6 and there are effects and
types of mixture as mentioned above.
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. storm
4. Not to set up adverse32 title: the bailee has not right to deny the bailor’ s title or set up against him
his own title or third person. He will however, refuse to deliver goods to the bailor if there is an effective
pressure of an adverse claim amounting to an actual eviction 33 by a paramount 34 title.
5. To return the goods in specie: it is the duty of bailee to return or deliver the goods without
demand, on the expiry of the time fixed or when the purpose is accomplished. If he does not return as
directed by the bailor or tender the goods at the proper time, he becomes liable for any loss, destruction or
deterioration of the goods even without negligence during the period it is detained. As regard the return of
goods bailed by tow or more joint owners, the bailee may return the goods to any one without the consent of
the bailors, provided that there is no contract that delivery must be given to all. And also he should return
some benefit if he get from that such as in animals cow. Where A leaves a cow in the custody of B to be
taken care of, and the cow gets a calf. B is bound to deliver the cow as well as the calf to A. A bailee is
excused from returning the goods to the bailor where the goods were taken away form him by authority of
law exercised through regular and valid proceedings.
Duties of Bailor
1. To disclose known facts relating to the goods bailed: he should explain the fault if he fails to do so
he will be liable to pay such damages resulted from the faults. A lends a horse, which he knows to be
vicious35 to B, without disclosing this fact; B riding that horse and thrown off and injured. A is responsible
to B for damages sustained.
2. To bear extraordinary expenses incurred by the bailee in connection with bailment: normal and
ordinary expenses will be upon the bailee but extraordinary expenses are upon bailor. If a person lent a
horse for a long journey, bailee is liable for feeding him, but if he is sick and expenses incurred the bailor
has to pay this. S.158 explains that all the expenses will be paid by bailor.
3. To indemnify the bailee for cost or loss incurred because of the defective title of bailor: S.164.
This right to indemnity extends also to a suit by third parties, even after the goods are returned to the bailor
or delivered to someone else according to his directions.
4. Bailee has a lien on the goods, i.e. he can retain the goods until his charges in respect of labor and
skill used by him with respect to the goods are paid. But if the bailee does not complete his work within the
agreed time, or a reasonable time, he is not entitled to al lien to the goods. A gives a piece of cloth to B, a
tailor for making it into a suit. B promises to have the suit ready for delivery within a fortnight. B has the
suit ready for delivery. He has a right to retain the suit until he is paid his dues. But if B takes a month to
complete the suit, he has no lien.
Q.8: Duties and rights of finder of lost goods?
32
. unpleasant, unfavorable.
33
. explosion
34
. dominant, chief , supreme.
35
Cruel, nasty.
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Section 168 and 169 relate to this topic. It is true if a person finds any things and brings it to its
owner he is not oblised to take any thing from that, but if he takes the good, he becomes a bailee. The right
of finder of lost good is that he can file a suit against the owner for any reward that might have been offered,
and may retain the goods until he receive that reward. If there is no reward announced by the owner but the
finder he can detain the good for the compensation of trouble and expenses incurred for finder out the true
owner, but he cannot sue against the owner for the compensation.
When a person find a good in a public place he has to keep that with himself against all the world
except the true owner. According to English law he cannot sell it. But according to S.169 he has right to sell
the property;
1. Where the owner cannot with reasonable diligence be found.
2. when found, he refuses to pay lawful charge of the finder;
i. he can sell it if the thing is perishable, or losing greater part of value.
ii. When lawful charge exceed two-third of the value of that thing.
Q.9: Define pledge or pawn; explain rights of Pawnee and Pledgor?
Pledge is defined in S.172 as, “ the bailment of goods a security for payment of a debt or
performance of a promise is called pledge or pawn” . The bailor is called “ pawnor” or pludgeer and the
bailee is called Pawnee or pledgee.
A pledge is a special form of mutual benefit bailment by which one person transfers possession of
some article to another to secure the payment of debt or the performance of a promise. Transfer of goods is
necessary element of this; if there is no transfer no pledge is created. Pledge is distinguished from other
types of bailment by the nature of lien possess by the pledgee. The pledge lien given the pledgee the right to
sell the goods in event of non-payment of debt or non-performance of the obligation secured.
Rights of Pawnee
1. To retain possession even against the true owner until the payment of the debt, interest on the debt
and any other expenses incurred in respect of the possession or for preservation of the goods. The Pawnee
must therefore, deliver the goods to the powner on due time, if he persists in retaining the goods he will
make himself a wrong-doer. The Pawnee cannot retain for debt or promise other than for which goods
pledges unless the parties contract that they shall be security also for any other subsequent debt.
2. Right to sue the pawnor for recovery of such extraordinary expenses, and cannot retain the goods
for such expenses.
3. At time of default of pawnor the Pawnee has right;
i. To file a suit for the recovery of the amount due to him while retaining the goods pledged
to collateral security.
ii. To sue for the sale of goods and the realization of the money duet to him.
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iii. To sell the goods pawned after reasonable notice to the pawnor.
iv. To sue for any deficiency after the sale.
But he cannot sell it for himself and if he does so it is treated as wrongful sale.
Right of Pledgor or Pawnor
We have seen above for sell the pawnee has to give reasonable notice to the pawnor, if he does not
do so he makes unauthorized sale and pawnor has the following rights against him;
1. To file a suit for redemption of goods by depositing the money, treating the sale as if had never
taken place;
2. To ask for damages on the ground of conversion.
3. If the Pawnee sell to himself, the pawnor has right to recover the article on payment of the
Pawnee’ s dues according tot the terms of the contract.
4. A powner has right to redeem at any time before the sale take place
Q.10. What is different between pledge, lien and mortgage?
A pledge is something between a simple lien and mortgage. In the case of lien there is no transfer of
any interest, the person exercising a lien has only a right to retain the subject-matter of the lien until he is
paid. In the case of a mortgage the property passes to the mortgagee; he has an absolute interest in the
property subject to a right of redemption by he mortgagor. But in the case of pledge, though the deposit of
goods is made security for payment of a debt or performance of a promise, the pledgee has only a special
property in the pledge, while the general property therein remains in the Pledgor and wholly reverts to him
on the discharge of the debt or the performance of the promise. The pledgee can sell the goods after notice if
the Pledgor fails to discharge the debt on the stipulated date.
Q.11: Write a short note;
a) Rights of bailor and bailee against the third party
S.180 explains that the bailor or bailee can sue against wrong doer or third person, if a third person
wrongfully deprives the bailee of the use or possession of the goods bailed, or causes them any injury, the
bailee may file a suit for trespass or conversion or for damages. And also the bailor to sue for the injury or
deprivation caused by the third party. As between the bailor and bailee it is provided that whatever is
recovered from the third party by the way of compensation or relief is to be apportioned 36 according to their
interests. If the bailee recovers more then his interest then he should account for he bailor.
b) Termination of bailment
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. divided
1. The bailor may determine the bailment, where the bailee does any act with regard to goods
inconsistent with condition of bailment.
2. A bailment comes to an end as soon as the period of bailment expires or the object is achieved.
Goods must be returned without demand by bailor.
3. A gratuitous bailment can be terminated by bailor at any time provided that the termination before
the stipulated period does not cause to the bailee a loss great then the benefit.
4. A gratuitous bailment terminates by the death either of the bailor or bailee.
c) Common carrier as a bailee
Common carrier is one who undertakes to carry from place to place the goods of all persons
indiscriminately who are willing to pay his usual or reasonable rates. The liability of common carriers in
India is governed by the Common Law in conjunction37 with the provisions of Carrier Act, 1865. Under
common Law he is an insurer of goods, but he carrier act enables him to limit himself common law liability
of insuring the goods by special contract in the case of certain goods such as valuables, perishable goods or
explosives, but not so as to get rid of liability for negligence. Carriers by land, including railways, and
carrier by inland navigation are common carriers. Carrier by sea for hire are not common carriers.
Q.12: Define Agency and explain appointment and authority of agent.
Agent: is a person employed to do any act for another or to represent another in dealing with third
person.
Principal: the person for whom such act is done, or who is so represented.
Appointment of agent: Who may be employ agent? Any person;
1. At the age of majority according to the law which is subject to.
2. Sound mind.
Who may be an agent? Between the principal and third person any person can become an agent if above two
conditions exist, and he becomes responsible to his principal according to what have been agreed upon. And
consideration is not necessary for creating agency.
Authority of Agent
Agent’ s authority may be expressed or implied; S.186 explains that, authority to enter into or sing
agreement need not always be express, but may be implied from circumstances of a particular case. Written
document is not necessary to create a contract of agency. An authority is said to be express when it is given
by words spoken or written. An authority is said to be implied when it is to be inferred from the
circumstances of the case; and things spoken or written or the ordinary course of dealing may be accounted
circumstances of the case. There is a special and important case of implied authority “ the liability of a
husband for a wife’ s debt depends on the principles of agency, and the husband can only be liable when it
is shown that he has expressly or impliedly sanctioned what the wife has done” .
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. combination.
Extent of agent’ s authority: If an agent has authority to do an act, he has authority to do every
lawful act which is necessary in order to do such act. If an agent has authority to carry a business, he has
authority to extent his authority to do every act which he can carry the usual course of conducting the
business.
A makes B his agent to carry on his business of ship-builder. B may purchases timber and other
material and hire workmen, for the purpose of carrying this business. So his authority is extended according
to the business.
Agent’ s authority in an emergency: an agent has authority in an emergency to do all such acts for
the purpose of protecting the principal from loss as an ordinary prudent person do with his own case, under
a similar circumstance.
Exp: An agent for sale may have good repaired if it be necessary.
Q.13: Explain duties of agent?
1. An agent is bound to conduct the business of the principal according to his directions and in the
absence of any such direction according to the custom which prevails in doing business of the same kind at
the place where the agent conduct the business.
2. He should conduct the business of the agency with as much skill as is generally possessed by
person engaged in similar business unless the principal has notice of his want to skill.
3. He is bound to render proper account to his principal on demand.
4. He is bound to use all reasonable diligence in communicating with his principal and seeking to
obtain his instruction in the case of difficulty, if there is not time for obtaining instruction then according to
his discretion of a prudent man.
5. He cannot delegate his authority to another unless authorized or warranted by the usage of the
trade or nature of the agency.
6. He cannot make any profit out of transaction which he may have entered into on behalf of his
principal in the course of his employment beyond his legitimate commission previously agreed upon.
7. He should not depart from his character as an agent and become a principal party to the
transaction; if he is an agent for sale he should not buy himself; if he is one for purchasing on behalf of his
principal he should not sell his own goods to him.
8. He is bound to pay his principal all sums received on his account.
9. In the absence of any contract to they contrary, an agent is entitled to retain goods, papers, and
other property, whether movable or immovable of the principal recived by him, until the amount due to
himself for commission, disbursement 38 and service in respect of the same has been paid or accounted for
him.
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payment
Q.14: Explain duties of principal?
1. Agent to be indemnified against consequences of lawful acts; the employer of an agent is bound to
indemnify him against the consequence of all lawful acts done by such agent in exercise of the authority
conferred upon him.
2. He is entitled to be indemnified by the principal for the consequences of acts done in good faith.
3. Agent is entitled to compensation from the principal for any injury caused to him by the
principal’ s neglect or want of skill. He cannot claim if the injury results from his own negligence or
acquiescence after knowledge of the risk of agency.
4. Non-liability of employer of agent to do a criminal act- the employer is not liable to the agent,
either upon an express or an implied promise, to indemnify him against the consequences of the act.
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Prepared by: Mohammad Ismail
The Kinds of Legal Rights
1. Perfect Rights and Imperfect Rights
Perfect Right: a perfect right is one that the law will enforce after it is recognized. There is sanction behind
it. This is corresponds to the maxim ubi jus ibi remedium where there is a right there is a remedy. So those
rights which a remedy is recognized by law. So if there is no remedy for a right that is imperfect right for
example a debt which is time barred, this will prevent the remedy because years have been passed over this
claim. So this right is imperfect right that the law does not provide remedy for that right.
2. Positive and Negative Rights
Positive rights depend upon positive acts or commission, where negative right depend upon acts of
omission, law ask to do is positive and if law refrain from doing is negative right. Negative right may be
stronger than positive rights and may be available against all people. Exp: not to be pushed in the water is
negative right, and to rescue any person from water is positive right.
3. Rights in Rem and Rights in Personam
The distinction between these two is similar to negative and positive rights. A right in rem is a real right, is
available against all persons in general or the world at large. A right in personam is available only against
some specific person. It is also called personal rights. Exp: if I give my farm on rent I have right against all
to work, and I have a personal right against the tenet for rent. Almost all rights in rem are negative, and
most rights in personam are positive.
4. Proprietary and personal Rights
Proprietary rights includes right of estate, assets and property, land chattel, patent and goodwill are
proprietary rights. His status or personal condition is personal rights, right to be freeman, a husband, and
father are called personal rights. Property rights relates to wealth but personal rights related to well-being.
Property rights are acquired while personal rights are given by law.
5. Rights in Re Propria and Rights in Re Aliena
Re propria are those which are free from encumbrances and third party claims. Rights in re aliena are those
encumbered or not free from third party. The first is to owner of property, and other is possessed by pledge.
Leases, servitudes, securities and trust are encumbrances.
6. Principal and Accessory Rights
When a right to something has an additional right attached to it, this additional right is called accessory
right, while the main right is called the principal right. Both remain to same owner. Without principal right
accessory right is not possible. Exp: house is principal right and rent is accessory right.
7. Primary and Sanctioning Rights
Sanctioning right is from the violation of some other rights. Primary right has some other source. The
sanctioning right is the violation of primary right.
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8. Vested and Contingent Rights
A right vest when all the requirements of the law for the right to be complete have been met. A right is
contingent when not all of eh vestitive facts have occurred. If A leaves a legacy to B in his will, the right is
contingent upon the death of A and the survival of B.
PERSONS
The Nature of Personality
The word person has a long history. In Greek it was used for a mask. A representative of the church was
called a parson. In Roman law, it was for any human being with respect to the jural relations associated
with him. Slave was not a person. In Christianity the term person of Christ is used for the properties of
divinity and humanity associated with him. In English law, the term is used for three things; human being,
and a unit of jural relations and corporation.
Salmond defines it as “ A person is any being whom the law attributes a capability of interest and therefore
of rights” . The words any being are of significance here. According to Dias, “ The word person means a
unit of jural relations” . And jural relations mean mass of claims, duties, powers, liberties and immunities
treated as a single unit. And jural relation is given to human being and it is called natural person. The set of
jural relations is also known as “ personality” . Positivists give this to human being and as well to other
being and things by the law. Kelsen says that law does not concern only natural persons. In Islamic Law,
the term personality may be deemed the equivalent of the term dhimmah. It belongs to a human being by
birth.
The Legal Status of Lower Animals, Slaves, Dead Men and Unborn Person
What is the legal status of lower animals, slaves, dead men and unborn persons in the eyes of law? Are
some of these granted legal personality by the law?
Animal and Inanimate Things
Holmes explained that how liabilities were on early days with animals, stones and swords? Thus, the Bible
says that if an ox gores a man, the ox shall surely be killed, but the owner of the ox shall not be assigned
liability. And also stones and swords were considered as legal personality, if swords kill unjustly, and stones
when become idols. The personality of Hindu idols was recognized by Privy Council. Now a days right of
animals are considered, but that is not right that is interest when there is clash between human right and
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animals human right is prevailed. Animals are protected but that is not right that is interest for best of
society.
Slaves
Roman law took away the personally of natural person and made him a slave. Just right of food, sex and so
on. In England it finished in time of Normans. In Pakistan and India finished in 18th Century at the time of
British Empire.
Unborn Natural persons
Unborn person are two types: those not conceived and those conceived (Janin). In English law a person can
give his property to his child that is to be born and to his wife. But should not be after a long time such after
100 Years. As far as the foetus is concerned, gift can be given to it, it is born in respect of property. If a
child born deformed due to damage can sue a case. But there is not statuary law in England, and it is not
clear as well that whether that is considered as life? If yeas then there should be full right for that. And also
related to abortion? Then there should be crime of murder and full diyah should be paid.
Dead Persons or Dead Human Beings
No personality assigns by English law after the death. But there things are considered: man’ s body,
reputation and his estate.
A Corpse (dead body) is not owned by any one. Stealing of body is not offence but it regarded desecration
of the corpse and violation of grave is offence but exemption for medical purpose. English law regards that
a man should be buried as Christian burial, but there is no enforcement in law for this. A person can not
give trust to his grave because in English law property is for living not the dead. Today sale of body organs
are considered such as Kidney.
As far as Reputation is concerned it receives protection by law, and it is criminal law. This shows that the
right attacked is not that of the dead person, but of his living descendants. In Roman and French laws the
estate is assigned a legal personality. In English law, no such personality is assigned and it is executor who
claims right and deals with the liabilities.
Legal Persons
A legal person is a subject-matter, other than a human being, to which the law attributes personality. Law
assigns legal personality if below conditions have been met:
1. There must be corpus (a body) of the person so created. There are may be many things with a corpus but
that is not treated as legal person. Such as partners, LLB Class, Supreme Court, Public meeting, because
second condition is not been met.
2. Legal personality is not attained unless the law recognizes legal personality for the corpus.
3. The law does not assign legal personality separated from the body of persons or a person who
administers the legal person.
4. There must be a mind administering the affairs of the legal person.
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To better understand the legal person we have to understand Corporation and its types.
Corporations
Legal person are three types: Corporation, Institution, Fund or estate.
Corporation: is a group or a series of person to whom the law has assigned a personality.
Institution: the corpus may be church, hospital, library, university.
Fund: legal personality may be assigned to a fund like the Modaraba fund.
Types of Corporations
1. Corporation sole
Definition: English law knows another kind of corporation the corporation sole in which the group consists,
not of number of contemporary members but of a succession of single members of whom only one exists at
any given time. Edward Johns, Books of English law. In English law it is said The King never dies. Or the
king is dead, long live the King. The office of President and Prime Minister. For below needs the
corporation sole are created:
1. Continuity of office: when one president died, there is need of continuation of this office so it is
needed to be corporate sole.
2. Acts of bid successors: if there is any agreement by the previous president or king so new one should
be bind to follow and fulfill that agreement. And there is need to make the acts of one official
binding on the next one who occupied that office. It is happens when there is sole corporation.
3. Ownership of official property distinct from personal property: the property of the person who held
office should be kept separately from the official property so corporation sole is needed for. The
successor can sue the previous office holder for damages in negligent.
2. Corporation Aggregate
A corporation aggregate is an incorporated group of co-existing person; it is a group that has been granted
legal personality by the law. The first one was companies.
Advantages of the Corporation Aggregate
The advantages of incorporation or the benefits of corporation aggregate are as follows:
1. Tendency to unify groups.
2. Distinct of group from individual, separation from its members;
a) Property of company is not property of shareholders.
b) Company will pay debt not members. It may become insolvent not members.
c) Contract can be made with company and shareholders.
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d) Company can survive the last of its members as it has perpetual existence.
3. To reduce transaction cost: it is the main advantage of a company as a corporation aggregate is.
4. The corporation may have limited liability for its members. It is available for corporation not any
other forms of business organization.
5. Tax and other advantage.
Disadvantages of Incorporation
1. The right to sue and be sued can be assigned by the law without help of legal personality.
2. The advantages of limited liability may be assigned by the law without bringing in corporate
personality.
3. The property of the enterprise can be held as a co-ownership or as a trust.
4. In a corporation the interest of different actors clash and cause managerial problems.
Difference Between a firm and a corporation
Persons who have entered into partnership with one another are called individually partners and collectively
a firm.
1. The title under which one or more persons conduct business.
2. Association by which person are united for business purposes.
Traditionally this term referred to a partnership as opposed to a company. But today it is frequently used in
reference to a company.
The Acts and Liabilities of a corporation
The following points can determine the liabilities of the corporation for a wrongful act:
1. a company does not have a mind of its own. It governs through its supreme governing body, BOD
2. When court feels that the company is being used unlawful activities, the corporate shell may be
cracked open. It means the corporate veil is pierced and liabilities become personally.
3. a corporation has no liability for public worship or religious duties or for action in piety.
4. A company is not liable for what is ultra vires its objectives. Ultra vires is unauthorized beyond the
scope of power allowed or granted by a corporate charter or by law. The officer was liable for the
firm’ s ultra action.
Vicarious liability: liability that a supervisory party such as an employer bears for the actionable conduct
of a subordinate or associate (such as an employee) because of the relationship between the two parties.
The State as a Corporation
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States are political entity that has territory, population, government capable of entering into
international relations and a government capable of controlling its territory and peoples. Within this
definition there are three types f states: inchoate, dependent, independent.
1. Inchoate or incomplete state lack some attribute required to be treated as a fully independent state.
2. Dependent states have formally surrendered their rights to conduct their international relation to another
state.
3. Independent stat is one that is sovereign and operates independently internationally.
In international law independent state has legal personality and thus has duties and rights. Without legal
personality those entities do not exist in law. Without international legal personality the U.N is unable to
start proceedings under international law against any state. Most countries, however, grant personality to the
state to deal with all these and other question.
Corporate Personality: Theories
There are two main theories which Dias has mentioned in his book;
1. The Fiction Theory: an abstract entity called the corporation is created and by a second fiction the
wills of individuals are attributed to it. This theory is supported by Savigny, Holland, Kelsen, and
others.
2. The Realist Theory: Gierke, who upheld this theory, that the corporation exists in reality whether or
not the state recognizes it as such. Dicey says when a body of twenty or two thousand or two
hundred thousand men bind themselves together to act in a particular way for some common
purpose, they create a bond which by no fiction of law, but by the very nature of things differs from
the individuals of whom it is constituted.
The other theories;
1. Concession theory; legal theory is created by state.
2. Bracket Theory; it is bracket put around a group of persons to facilitate the operation of rules.
3. Purpose theory; it is granted to purpose not to group.
4. Organism Theory; when group together they are society and they are like living organism and have a
personality of their own.
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OWNERSHIP
The Idea of Ownership
The concept of ownership came to English from Roman law, and then after developed by the German jurist
Savigny, He focused on two points:
1. Control over a thing.
2. Right to exclude others.
Salmond defined ownership in terms of “ rights” and the relationship between a person and an object” . He
defined as, “ the relation between a person and an object forming the subject-matter of the ownership” . All
these rights are in rem. It means rights are available against all the world. Most important ingredients of
ownership are:
1. the owner has the right to take possession of the thing that he owns.
2. The owner normally has the right to use and benefit from the thing owned.
3. The owner has the right to consume, destroy, and alienate the thing owned. But destroy is not
absolute right. Alienate means to sell, to be given as gift or sell. It is a power to be enjoyed by
ownership.
4. the right of ownership is not limited by time as distinguished from one in possession.
5. Even when some right are given away, the remaining right stay wit the owner. Exp; may lease out
his property for use but residual rights remain with the owner.
6. The right of ownership is not absolute and may be limited by the operation of the law. Restriction
the law may restrict some ownership. Exp; using mobile while driving is not allowed. Driving care
beyond speed limit is not allowed. If it is required of public interest the law can restrict that
ownership.
The Subject- matter of Ownership
Land, Goods, Interest in land, Debts due to a person, share in companies, Patents, Copyrights, Interests in
trust funds. Now all these are not material objects. It was for this reason that Salmond maintained the view
that the subject matter of ownership is in all cases a right. These are just rights that are owned. One cannot
sell the right to one’ s reputation or alienate it in some way. In other words, not everything owned is
marketable.
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Besides this, there are certain things that cannot be owned. These are like human beings, sunlight, and air
and so on. A time may come when these are made subject to ownership as well.
Acquisition of Ownership
There two basic ways in which ownership is acquired;
1. By operation of the law. Law says that ownership is acquired. Exp: one sell to another, such as
inheriting.
2. by some act or event: this may be the act of creation of a thing or its taking. It includes the creation
by craftsmen and also various contracts.
Kinds of Ownership
1. Sole ownership and Co-ownership
if a single person owns a thing is called sole ownership, but it is possible for two or more person to own a
thing which is called co-ownership, such as partners. Co-ownership is possible through regulation by law.
The law lays down the conditions under which things will be jointly owned and shared.
2. Trust and Beneficial Ownership
A trust is a legal device that allows for the separation of the powers of management and the rights of
enjoyment. Thrust property is owned by two persons at the same time. The relation between the two is such
that one of them is able to use his ownership for benefit of the other. The chief classes of persons who need
the institution of trust are four:
1. Person who are not yet born.
2. Persons under some incapacity, infant, lunatics.
3. Beneficiaries are in large number that is not possible for them to manage the property collectively.
4. Where persons with conflicting interests have interest in the property, like the owner and the
encumbrancer.
Trust should be distinguished from contractual arrangement for taking care of some one else property, and
an agent appointed to look after the property of his principal.
3. Vested and Contingent Ownership
It is vested when the owner’ s title is already perfect, it is contingent when his title is as yet imperfect, but is
capable of becoming perfect on the fulfillment of some condition. The first one the ownership is absolute
and second conditional.
It is to be noted that contingent ownership is more than a simple chance or possibility of becoming.
Contingent ownership is based not on the mere possibility of future acquisition, but upon the present
existence of an incomplete title.
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The conditions upon which contingent ownership depends are tow types and are called Conditions
precedent and conditions subsequent.
Ownership is said to be vested when it is not dependent upon a condition precedent or when it is to take
place upon the happening of an even that is certain. Exp where under a deed of gift, a donee is not to take
possession of the gifted property until after the death of the owner and his wife, the donee has vested
ownership, subject only to the life-interest of the donore and his wife. It means vested ownership is delayed
and may or may not come about.
POSSESSIONS
The Idea of Possession
According to Salmond, “ possession of material things is essential to life; it is the most basic
relationship between men and things” . Men by nature, wants to possess things, in his selfish interests.
Attack on possession is deemed an attack on the person by the possessor himself. Therefore law safeguards
possession.
It is difficult to define possession accordingly. It is different then ownership in ownership there is
legal concept but in possession both a legal and non-legal concept.
Possession in Fact
A person can have possession of any thing without actually holding of that thing or using that for
example a person who wears a coat it is said that he is in actual possession of that coat, if he takes it off that
coat is also in his possession.
Elements of Possession
1. Corpus possessionis or actual physical control over a thing; this has two things in it:
i)
Actual or potential39 control over a thing.
ii)
The power to exclude other from using hat. This is more important integrant of that to
exclude other from using that thing.
2. Animus possidendi or the intention to exercise control; there should be minimum intend to exclude
others from whatever may be in his pocket.
Possession in Law
Protection of Possession
The law recognizes, protects and safeguards the possession in two ways;
1. By providing a legal right. Such as right to continue in possession free from interference by others.
This is right in rem or primary right. Right to restore dispossessed possession.
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. possible or probable
2. By prescribing criminal penalties for wrongful interference. The law prescribes criminal penalties
for wrongful detention of possession and dispossession.
Determining Possession and Constructive Possession
The law in order to protect the possession has to determine the possession that in fact it exists or not. It
varies from article to articles; there will be many cases in which law determine possession with difficulties.
We may find that one who is not actually in possession as being considered as such in them eyes of the law,
and one who is in possession as being considered a non-possessor. This type of possession is called
constructive possession. For example a master may allow his servant to hold his luggage and the servant
absconds40 with it.
Immediate and Mediate Possession
The possession of a person who holds thing through someone else is called mediate possession. The
possession of the person who acquires a thing directly and personally is called immediate possession. There
are three types of mediate possessions:
1.
Acquired through agent or servant; the person holds for the possesseor. Immediate possession is
the servant, warehouseman and mediate possession is that of the person for whom such person
holds.
2.
Acquired through Joint possession: a person who hold something for himself and for other as
well. Example the borrower and the tenant.
3.
Acquired from person who holds for himself for a known period; until some times or some
conditions fulfilled such as debtor and creditor.
Concurrent Possession
This is partly same as above:
1. Mediate and immediate possession co-exist in respect the same things.
2. Two or more person possesses the same thing in common like co owners.
The Acquisition of Possession
1. Taking: is the acquisition without the consent of the previous processor rightfully or wrongfully.
2. Delivery: it might be actual or constructive delivery:
a) Actual delivery: is transfer of immediate possession or physical transfer. two types:
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. run away
i. Mediate possession is not retained 41 by the possessor.
ii. Mediate possession is retained by possessor.
b) Constructive Delivery: it is not actual delivery.
i.
Surrender of mediate possession to a person already in immediate
possession. A lends B a book, then gifts it to him.
ii.
Agreement touching possession. It is transfer of mediate possession while
immediate possession remains with transferor.
iii.
By attornment; transfer of mediate possession while immediate possession
remains with third person. A sells goods to B that are in the warehouse.
Incorporeal Possession
Distinction between corporeal and incorporeal possession is as with ownership. Corporeal
possession relates to things and incorporeal possession commonly called possession of rights.
Incorporeal possession is the continuing exercise of a claim to anything and corporeal continuing
exercise to control over a material object. Such as right of way over a piece of land. Haqul Majra, Haqul al
moror, Haqul Mashraab in Islamic law. Or some interest over some material such as trade marks, patents,
office of profit.
Possession and Ownership
1. Possession is a matter of fact, while ownership is legal concept.
2. What may be owned may be possessed and what may be possessed may be owned, but with
some qualifications. There might be some rights which are owned but cannot be possessed.
Possessory Remedies
It is claimed that possession is nine points of the law. This means that possession is a good title of a
right against any one who cannot show a better title. A wrongful possessor has right against all people
except original possessor of that property to exclude them from possessing. Many system treats possession
as temporary title even to the owner by himself.
Remedies: Possessory and Proprietary
Legal remedies granted for protection of possession even against ownership are called possessory
remedies. Remedies granted for the protection of ownership are called proprietary remedies. Main
arguments were in favorer of possessory remedies:

Violent self-help must be discouraged.
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kept, hold

The procedure for recovering under proprietary remedies was cumbersome.

Proof of ownership was sometimes difficult.
In English law there are three rules to be followed:
1. Prior possession is prima facie proof of title.
2. Defendant can rebut 42 this presumption by showing better title.
3. Defence of Jus tertii: this means that defendant is not allowed to say that some third person is the
true owner, someone other than the plaintiff and the defendant.
LIABILITY
Nature and Kind of Liability
Every person who holds any position he has some liabilities over him. There are two types of
liability: civil (Remedial) and criminal (Penal).
1. Civil liability: when the law creates duty, it should be enforced to be fulfilled. When there is right there is
remedy. Three things according to salmond;
1. Breach of duties of imperfect obligations gives rise to no cause of action; payment of debt barred
by limitation cannot be compelled.
2. Duties violated cannot be undone.
3. Specific performance of a duty may not be enforced, just damage may be award.
2. Criminal liability or theory of Penal liability: it is based on the principle that a man is not criminal liable
for his conduct unless the prescribed state of mind is also present. Also a maxim that, “ An act does not
make a man guilty of crime, unless his mind be also guilty” the following elements of a criminal should
exist for criminal liability:
a) Actus Reus (guilty act); a physical act, or unlawful omission by the defendant.
b) Mens Rea (guilty mind); intend of defendant at time of act. No intention no crime, if a person
done anything and did not known that act will produce some damages. Exp: drinking wine not intentionally.
c) Concurrence; the physical act and mental state existing at the same time.
Physical Act: Actus Reus
Each crime must have actus Reus, there should be an act, and bad thoughts alone cannot constitute a
crime. The actus reues itself may be said consist the following elements:
1. Conduct: act or body movement, also omission is included in it. Exp; if in airport navigator
neglect for navigation of aircraft and an event happens so he is liable.
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. deny
2. The consequences of the act: there should be a prohibited result for that act. Example if A hurls
(throw) a stone and no one is injured so he is not liable.
3. Circumstances in which the act takes place; “ state of affairs” such S.144 PPC. Presence of
person in unlawful assembly is state of affairs.
Rules for the Actus reus
1. The actus must be proved; it must be shown that actus Reus in fact exists.
2. The act must be voluntary; the defendant act must be voluntarily as it must be in a mental
approach of the will. And involuntary act will not be a crime. The following acts are not
voluntary and cannot be based on criminal liability:
a) A conduct which is not produce of actor’ s determination. A push B into C, which causes
death of C so A is not liable criminally.
b) Reflexive43 or convulsive act.
c) Acts performed while the defendant was either unconscious or asleep.
2.1. Automatism: most of the cases of voluntary acts fall under automatism. A person
is automaton when he has no control over his muscular movements. Different types of
automatism; by insanity, self-induce, or due to other reasons. Alleged automatism arises from
a “ disease of the mind” . Automatism has narrow limits as a defense. It is to be confined to
acts done while unconscious and to spasms, reflex actions and convulsions.
2.2. Involuntariness not arising from automatism: He may have full power over his
body control but he has no power to control the event which he is passing through without
any will such as brakes fails in motors and he runs over pedestrian or accident occurs.
3. The act should be causative: it should be proved that it is the conduct of the defendant which
causes those consequences to occur. In qatl-i-amd it is necessary to prove that the act caused the
death.
3.1. A “ state of Affairs” as an actus Reus: for criminal liability state of affairs should be
proved. These offences are sometimes called situation offences.
3.2. Omissions an “ Act” : most of the time the crime is occurred affirmatively. Some times
offences are committed by non-action. It means defendant failure to act. Three requirements are
necessary for omission to be liable criminally:
1. There is a legal duty to act. And legal duty arises from the following sources:
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. automatic.
a) A statute, such as the filing an income tax return.
b) A contract obligating the defendant to act, such as nurse or lifeguard.
c) The relationship between the defendant and the victim to create duty. Such as parent has to
prevent physical harm to children, or a spouse.
d) The voluntary assumption of care by the defendant of the victim.
e) The creation of peril44 by the defendant. Believing B can swim, A pushes him into a pool,
B cannot swim, but A takes no step to help B. B drowns. A is liable.
2. There is knowledge of facts giving rise to duty.
3. It is reasonably possible to perform the duty: there should be reasonable possibility for the
defendant to do his duty obtain help of others in performing. A father who does not know swimming has no
duty to jump to water to save his child.
Mental State (Mens Rea)
The meaning of Mens Rea: Mens rea is technical term, and it is translation as a “ guilty mind”
is considered misleading. The possible mental attitudes a man have with respect of actus reus of a crime
are: intention, recklessness45; negligence; and blameless inadvertence. Here we will discuss these four
terms in detail.
Intention
1. Direct and oblique46 intention: Direct intention is a decision to bring about, insofar as it lies
within the accused’ s power, a particular consequence, no matter whether the accused desired that
consequence of his act or not. As compare to this indirect intention consequence of a person’ s conduct
is said indirect intended by him when although he not intended to bring it about, insofar as it lay within
his power, it was foreseen by him as a certain or probable side effect of something.
2. Further or ulterior intent: if the actual commission is not intended in the original intention
of an act it is called ulterior intent such as if any person goes for theft but he kills and hurts some person
during that act. So his real intention was to steal any thing but death, hurt, etc is no part of the actus reus.
Where such an ulterior intent is to be proved it is sometimes refereed to as “ specific intend” .
Specific intent and general intent
Specific intent Crime: if in definition of a crime requires not only the act but doing that act with specific
intent, the crime is “ specific intent” . Specific intent should be specified for two reasons:
1. Need of proof: the persecution must produce to prove the existence of specific intend
2. For applicability of certain defenses: some defenses such as voluntary intoxication and unreasonable
mistake can be applied only to specific intend.
44
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. danger, risk
. irresponsibility
46
. indirect.
Enumeration47 of Specific intent crimes
a. Solicitation (instigation) the intent to have the person solicited commits the crime.
b. Attempt: the intent to complete the crime.
c. Conspiracy: intent to have the crime completed.
d. Premeditation: first degree murder.
e. Assault: intent to commit a battery.
f. Larceny and robbery: to intent to deprive others from property.
g. Burglary: intent to commit a felony48 in the dwelling49.
h. Forgery: intent to defraud.
i.
False pretences: intent to defraud.
j.
Embezzlement50: intent to defraud.
General Intent
All crimes need general intent which constitute the basic awareness of the crime. Defendant acts in
such a way that he knows all the consequences. Such if A confine B, A is aware that he is wrongly
confining B, which he is not authorized by law.
Transferred Intent or Transferred Malice (cruelty)
If a person intended to harm a particular person or object and that harm is resulted to another person
that he did not intended to do with him such that is called transferred intent. Any defenses or mitigating
circumstance which defendant could have asserted against the intended victim will be transferred intent.
This doctrine applies on homicide, battery, and arson51 . It does not apply to attempt (attempt of murder).
Exp: A shoots at B, intending to kill him. He hits C, only wounding him. While A may be guilty of
attempting murder of B, he is not guilty of attempted murder of C because transferred intend does not apply.
Motive and Intention in the Criminal law
Motive is not as intention it is immaterial to substantive criminal law, motive is the reason
underlying the offence. A good motive will not excuse a criminal act. Such as a lawful act with bad motive
will not be punished. Sometimes motive means emotion such as jealousy or greed and some times means
species of intention.
Where motive is relevant
47
. list, details
. Crime , offence
49
. house
50
Misappropriation, fraud.
51
fire starting.
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1. In a prosecution for libel.
2. As evidence, motive is always relevant. If in persecution A proves that that B had a motive for
committing the crime, because men do not act without a motive.
3. Motive is important again when the question of punishment is in issue: if there is discretion of court
for punishment the judge will see the good motive of the convict.
Recklessness
In some offences recklessness is sufficient for criminal liability as opposed to some other mental
state such as intention. In England recklessness is understood in two senses: Subject recklessness and
Caldwell recklessness. Subject recklessness is the conscious taking of an unjustified risk. The Caldwell
recklessness occurs when a person is reckless even when he has not given nay thought to be possibility of
there being any such risk. Two cases are mentioned in book page, 297.
Negligence
It is inadvertent taking of an unjustified risk. If D was not aware of the risk but he did it is negligent.
Not applicable in all cases it is now the hallmark of crime of negligence.
Prepared by: Mohammad Ismail
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Prepared by: Mohammad Ismail
Mercantile Law-II
Company Law
Important Note: This is a brief notes of company law which are delivered by the teacher during this
semester, for more details you have to refer to the main book of Company law Imran Khan Nyazee,
according to these topics, don’ t depend on this , it is not enough.
Company: corporation, enterprises. A company is an association of persons united for a common object. Or
a company is an artificial person created by law, having a separate entity with a perpetual succession and a
common seal.
Forms of business organization
1. Firm
2. Sole proprietorship
3. Company, etc.
History and origin of Company
First Company was based in UK and developed in USA. Previously it was a company of East Indian.
It was found through a statue of British Parliament. It was a constituted by queen or king on that time. On
that time state was founding company through statutes of parliament, likewise the formation was like this
under the state, the charter of company was founded in the parliament.
Distinctive Features of Companies
1. They are corporations: Corporations are artificial legal person invested by the law with most of
the responsibilities of natural persons. As John Marshal said, “ A corporation is an artificial
being, invisible, intangible, and existing only in the contemplation of the law.” This means that
the company may owns property, enter into contracts, inflict or suffer wrongs, use and be sued
and do many other things that are done by human beings.
2. The liability of the members to contribute toward the payment of the company’ s debt is usually
limited; the members, in a majority of case are the shareholder. Their liability is limited to the
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value of shares subscribed by them. Liability may be limited by guarantee to the extend of the
guarantee.
3. Perpetual succession; a company has continuous existence and its life is not affected by the
death, lunacy, insolvency of its members.
4. Common seal: a company being an artificial person cannot sing documents. The law has,
therefore, provided for the use of a common seal, with the name company engraved on it, as a
substitute for its signature.
5. Transferability of Shares; members of a public company are free to transfer the shares held by
them to any person. These shares are usually sold at the stock exchange market, but in private
company it is restricted.
6. Separation of ownership and management; the number of members or shareholders in a company
is usually very large and all of them cannot take part in direct management of the company.
Division of company law
1. Incorporation
2. Allotment of shares and share capital.
3. Membership.
4. Borrowing and charges.
5. Management and administration.
6. Restructuring.
7. Winding up.
Without company ordinance there are other statutes which regulate the companies such as Security and
Exchange ordinance 1969. Security and exchange commission of Pakistan Act 1197 (SECP)
Distinctive of different business
1. Facilitating Investment.
2. Minimizing Risk.
3. Organizational Structure.
1. Facilitating Investment: which one is facilitating investment, and then we will know which one is
the best and suitable. Of course company but how? Because in sole- proprietorship money come from
personal (Saving), loads regarding investment. Partnership personal saving loans. Company limited by
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shares two types; public limited company and private companies. In investment in private capital is same
like partnership but more facilitated for taking loans form bank and personal savings, loans from individuals
and banks or financial institutions. Public limited company, this is for huge projects such as electricity
producing company, its sources are personal savings of share holders, loans, banks, FI, public money
(Equity). This is by buying shares. It is only public limited company to ask public to share in the shares is
called stock exchanges. So company is very better for investment.
2. Minimizing Risk: we have to analyze the risk for the business which one is minimizing the risk?
In partnership the risk is highly because if business collapse due to circumstances so they have to pay from
any where they find the loans to the creditors so the risk is high. If business is in risk in company so the
assets of the company will be sold for the paying. If not satisfied then sharing are sold. The creditor sues the
company not the share holders. So risk is minimum in company. In company share holders are not asked to
pay the debt or loans. This is called in partnership unlimited liability, and in company limited liability.
3. Organizational Structure: where it is provided? In sole- proprietorship no need of this so much. In
partnership as well. But in company there is law and well defined structure for organization; duties are
there, director, executive, etc. tow bodies are there in company:
1. Director which includes executive and no executive.
2. Share holders.
So from these angles company is preferred than other forms of the business.
Corporate Bodies or body corporate
Corporate bodies are not just work of company law, parliament can make or confer the legal
personality such as NADRA, NHA, and they are separate from government. They are corporate body but
they are not company, any act of parliament can make a corporate body. Corporate bodies have limited
liabilities, and have separate entities. The company ordinance in S.2 (4) defined corporate as, “ a body
corporate includes a company incorporated outside Pakistan but does not include e following “ legal
person” :
1. a corporation sole.
2. a corporative society register under any law relating to the registration of corporative societies.
3. any other body corporate not being a company as defined in the ordinance, i.e. not formed and
registered under this ordinance or an existing company.
So body corporate is wider then the term company it seem that it includes;
a. a company registered under the Ordinance.
b. A company or corporation established by any special enactment.
c. A foreigner company.
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Types of Corporate bodies (Pages 31)
Corporate Bodies
By special Law such as
NADRA
By General Act or Ordinance
Company limited by Shares
Public Limited Co
Single Member Co
Private Company
Company limited by guarantee
For profit
Not For Profit
Company
Shares: will be the concern
limited
by
here, because
Unlimited Company
mostly business are done
under this. A company limited by shares means a
company having the liability of its members limited by the memorandum to the amount if any unpaid on the
share respectively held by them” . The members of this company are paid according to their shares. Page 44
for more details.
Company Limited by Guarantee: only in case of winding up they are given guarantee to give some limited
of money just guarantee not according to their shares. A company limited by guarantee means, “ a company
having the liability of its member limited by the memorandum to such amount as the members may
respectively thereby undertake to contribute to the assets of the company in the event of winding up” .
Initial funds not raised form members in this company. And the guarantee company usually in its pure form
is always a private company, as its has no share capital, it cannot satisfy the requirements of a public
company. There should be a contribution clause in its memorandum of association. Details P.45.
Public Ltd Co: that can take shares from the people.
Private Ltd Co: they cannot go to public, just loans can be taken and also numbers are limited.
Non-Profit company such as NGO’ s S.42 of ordinance.
Unlimited Company: an unlimited company is a company not having any limit on the liability of its
members. This fact need not be mentioned in the memorandum and the purpose is achieved by omitting the
limed liability clause and not using the word “ limited” . The major purpose of this company is to
accommodate large partnership and unincorporated associations. The maximum number will be 20.
Single Member Company: “ it means a private company which has only one member” The company has to
display its name as ABC (SMC-Private) Limited. It can be limited by shares or guarantee, which is
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incorporated with one shareholder or shoes membership is reduced to one person. A guide issued by SECP
for SMC is as follow;
a. any person can forma a single member company.
b. All the requirement for incorporation of a private limited company apply.
c. If the membership of SMC is transferred to a new company the company shall within
fifteen days from transferee, register.
d. A SMC can be converted into a private company.
e. A private company with two member can become SMC
f. A SMC is also required to appoint a company secretary.
Legal person
It is creation of law, whether human being or any other person. Exp: under 18 (minor) is not a legal
person. Company is treated as a legal person because law has accepted as legal person. Company can sue a
case against any one and can be sued as well, can take loans and give loans for others as well.
Today in U.K the lengthiest statute is Company Act 2006 which includes 1300 sections in it.
Limited liability or corporate legal personality is explained well in case of Salmon V Salmon, this case is
the root of company law.
Salmon V Salmon
Facts: leather merchant Salmon, Business expansion, formation of company, 7 shareholders, wife, 2sons, 2
daughters, 2 sons and Mrs. are directors, 39,000 Value, 20000 shares one pound each, 10000 debenture
holder (debenture holder is creditor of company and shareholder is member of company), he secured his
loan through charges in assets of company, the business was going down, company was going to pay debt.
Issue: liquidation (the affairs go to the hand of liquidator), the court in first instant decide that he will not be
paid first.
Principles: principle of agent and principal, court of appeal upheld that company is trustee of Mr. Salmon,
H.L revised the judgment company was incorporated so it was separate from the shareholder it was
incorporated. It was under company ordinance 1862, legal formalities are fulfilled, he is secured creditor he
should be paid in priority from unsecured creditors of the company.
Secured creditors are those who have debenture + Charge in asset of company. And unsecured are
those who have just debenture.
Lee V Lee
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Lee was major share holder of company, and governing director as well. He appointed himself as
chief polite of company as well. Unfortunately during a plane crash he was died. Lee’ s wife clamed
insurance in Newzland. The insurance company objected that Mr. Lee was not the worker of the company.
And we have insured just the members of company. Court applied the case of Salmon in it. He was worker
of company and as well director of the company. The insurance company has to pay the insurance. In this
case because of limited liability and legal personality of company he had to be paid.
Lifting the Veil of incorporation (Page 72)
The principle of separate corporate personally as established by Salmon’ s case formed a corner
stone of company law. This principle is knows as curtain, a veil or shield between the company and its
members. There are however exceptions to this authority or theory. In some instance the law is prepared to
disregard the corporate personality and take into account the realities of the situation. The approach of
disregarding the legal entity in the certain cases which has come to be known as “ lifting of the corporation
veil” . The following cases and the rules may be examined for this;
1. When the company becomes an enemy company in times of war. As in the case of Daimler Co V
Continental Tyre and Rubber Company. In England with Germany.
2. When the company is acting as an agency of its member.
3. When the company is used to perpetrate fraud.
4. When the company is used to evade contractual obligation.
5. When the statutory law required that the veil be lifted.
Stake-holders or shareholder
Company
Government (Regulatory
Authority)
General such as SEC, SECP, SECI
Others
Specific such as OPRA, NADRA, CCP
Shareholders
Directors
Employees, Works, Professionals,
Technical
Customers
Company Ordinance
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General public, Environment
Preamble: it is not the operative part of the ordinance or act; it is just intention and object of the law.
Heading are also not the operative part of the law.
Object and purpose
1. Health growth of corporate.
2. Promotion of investment and development of economy.
3. Protection of investors and creditors.
4. All other matter relating to the company.
S.2: Definition clause
Article: it is article of association s. 26 to 28 relates to this.
Associated companies and undertakings: group of different of companies it is undertaking. Company can
buy the share of other companies 20 %, so it becomes associated company.
Subsidiary and holding or parent company: both they are associated companies, legally they are both
separate. If a company buy more then 51 % of a company so it becomes parent company and other company
becomes subsidiary company. Such as A-------------B, A buy 51 % shares of B, B becomes subsidiary
company and A parent or Holding company.
Commission: SECP (Security and Exchange Commission of Pakistan) is the regulator of companies in
Pakistan. CRO is Company Registration Office.
Company limited by shares: a company having the liability of its member limited by the memorandum to
the amount, if any unpaid on the shares respectively held by them;
Company limited by Guarantee: means a company having the liability of its members limited bye the
memorandum to such amount as the members may respectively thereby undertake to contribute to the assets
of the company in the event of its winding up.
Director: includes any person occupying the position of a director, by whatever name called. We look to the
nature and function of the office not to the name.
Listed company: which shares are registered in stock exchange.
Members:
1. Subscriber.
2. a person who is allotted
3. Who holds shares, documents which give him right of voting.
4. Any person whose name is in registration.
5. A grunter, in company limited by guarantee.
Private Company: which has three things by its article:
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1. Restriction, transfer of shares is restricted.
2. Limitation, 50 members.
3. Prohibition; of invitation for shares to the public.
Public company: This is not a private company.
Prospectus: Document issued by company to explain something to the public, related to the company. For
subscription to the public for invitation. What is effect of fraud and misrepresentation of prospectus? Till
about company and it is offer to buy the shares.
Special resolution: a resolution passed by a majority of not less then ¾ of members entitled for voting and
who is present in person or by proxy at a general meeting.
S.3: Subsidiary and holding Company
SECP has formed a company for the maintenance and keeping electronic record of share
transactions. So this is recorded in CDC (Central Depository Company)
Provided: sometimes CDC keeps some shares but it is not subsidiary.
S.6: Ordinance to override memorandum, articles, etc
Company’ s ordinary is in the top and there is memorandum and article of each company. These are
also laws in company. In case there is conflict the provision of company prevails and article will be void.
S.14: obligation to register certain associations, partnership, etc as company
1. No association more than 20 members can enter into the profit until they are registered; they will b illegal
if they don’ t register their association with registrar.
2. Every person who is the member of this un registered association will be punished with fine which may
be extent to five thousand rupees and he will be liable for all the things.
Exception:
1. If there is any special law and registered under that.
2. joint family
3. joint family partnership not more than 20 joint family with tow or more joint family
4. Partnership of lawyer, doctors, etc.
Memorandum of Association
S.15: Mode of Forming Company: any three or more persons associated for any lawful purpose may, by
subscribing their names to a memorandum of association and complying with the requirement of this
ordinance in respect of registration, form a public company and any one or more person associated may in
like manner form a private company. So the company which is formed under this rule may be:
1. Company limited by shares.
2. Company limited by guarantee.
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3. Unlimited company.
S.16: Memorandum of Company limited by shares
Two main documents are in a company, MOA, AOA. The first is constitution of company which is
drafted by the company and the second is by law for company. The company has to make these two
documents and then register it with registrar.
Memorandum of Association is a document which has five main clauses:
1. Name Clause: mentions the name of the company, at the end Private limited company, exp: ABC
Limited means public limited company, if mentioned in parenthesis (Pvt) means private limited
company.
2. Registered office: which mention the address of the company in which province the company is
situated. Full address is not required.
3. Object Clause: it is most important clause; it has to be drafted carefully. In order to avoid objection
from authority so it is important. If the company does any thing which is not mentioned in object
clause then it is Ultra Vires acting. No protection for the other person if entering with company
which is not the object of company. And MOA is public documents, public should know it. Now a
day the value of object is decreasing before it was very brief, because the scope was limited. The
Company Act 2006 in UK removed the object clause because company mentioned wide and court
interpreted wide as well. And it now option in the company.
4. Liability Clause: the liability of members is limited. Liability of company is not limited, the
members of company has limited liability up to the extend of their shares. It is formal clause.
5. Capital Clause: the amount of share capital, signature, number of shares. Example; 15 million capital
up 15000 shares each share such 10000 and also value of shares.
S.19: Printing, signature, etc of memorandum
2. Whether it is written in MOA or not the power of company to contract or to take loan, even if it is not
mentioned in object clause specially it is deemed to be included.
S.20: General restriction on Amendment of MOA
The company cannot alter its memorandum of Association except as it is provided in the ordinance.
S.21: Alteration of Memorandum
The registered office clause or any clause may be altered by special resolution by the BOD, and
share holders in general meeting, by this the decision will be democratic. There are ordinary resolution and
special resolution in the meetings. The one which law requires it is special resolution. S.2 (36) which
explains that ¾ of the majority is required. For amendment of MOA of company special resolution is
required. The amendment of object clause, this section is limiting the scope of emending object clause.
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Conformation from commission is necessary, and power has been given to commission by S.22 to
confirm it partly or wholly or any other reasoning.
Articles of Association
It is internal regulatory rule of company, it is by law.
S.26: Registration of Article
S.26 (2) explains the regulation which is mentioned in Table A of First Schedule which can be adopted in
Article of Association. Page 525.
Article of association which is made by law companies can adopt their own article of association but usually
small companies adopt the same article of association, this is regulation. Article of association cannot go
beyond of memorandum of association, it still remains in the limit of that circle.
S.30: Registration of Memorandum & Article of Association, etc
Memorandum and article of association shall be filed with the registrar. Page: 267
S.33: certificate of incorporation
The certificate which is given by registrar shall be deemed to be the conclusive evidence that all the
requirements of this ordinance in respect of registration have been fulfilled.
Capital Clause of Memorandum Page 104
Capital: any thing which has finical value with company is capital. In a company there is shares capital and
loan capital. Broadly two types of capital in a company: share capital which is also called equity, and loan
capital which is debt. A person who gives money he has shares with him who is called share-holder. And a
person who gives debt he has debenture he is called debenture holder. The person who has shares, he is
members and the person who gives debt he is creditor.
Capital Clause shows nominal capital or authorized capital (company can rise up to a limit; it is the
limit up to that can be raised).
Issue Capital: is real capital of a company. It is reality, authorized capital is merely a limit. The nominal
capital in its original or altered form sets the limit of capital available for issue. .accordingly the issued
capital of the company can never exceed its nominal capital. Page 105
Subscribed capital: subscribed capital is that part of the issued capital that has been accepted by the public.
Accordingly it is possible for the subscribed capital to be less than the issued capital, because the capital
issued for subscripting may be more than the capital actually subscribed. Page.106
Kinds of Shares in general
Basic there are two kinds; Ordinary, and preference.
1. Ordinary: will have all rights available to holder, pure shares. The holder will have voting right,
ownership interest up to the value of shares. And right of payment of dividents.
2. Preference: they have priority over ordinary in paying dividents, when it is agreed that this amount will
be paid it is dividents. They don’ t have voting rights.
Relevant Provisions: Section 90-108
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Capital
Share Capital (Equity)
Loan Capital (debt)
Shares
Denture
Winding Up S.
Concept
of
297-420.
Share holders
Debenture Holder
Member
Creditor
main organs of Company: tow
main organs
1. Board
of Director.
2. Share-holders.
Separation of ownership from control it is concept by Barli and Menis they made survey of
companies in U.S.A. ownership is in the hand of some one else and control is in the hand of another.
Management and control, the function of BOD is management. The Directors are responsible for all affairs
of company or by the person who is appointed by BOD. Other organ is share holders. And plate form is
general meeting of shareholders. The biggest work of share holders is appointment of Directors and
withdrawal of him. In large we can say all control is in the hand of share holders. Because of dispersed
ownership normal share holder are not interest in the affairs of company because of this they appoint
directors and all affairs related to him.
General meeting is like cabinet and parliament. He other power is to check reports. Any policy is
made that is present to the share holders.
S.2 (13) defines Directors; whoever holds the position of Director whatever name called such chief
executive, chairman, chairperson and all director are Board of Director.
Can a legal entity become director of another company? S. 175 explain that only natural person to
be director, not a minor, same not insolvent, sound mind. Detail page 159. duties of director is necessary. In
Pakistan there are no codified duties. Page 162. Details.
Companies in UK they have recently codified those duties in 2006. it does not mean that we don’ t’ have
duties. It is available in different judgments of cases. Statutory duties of director. Common laws duties of
director thy have along history.
Duties of Directors Page 169:
1. To act within power: the action should be intra Vires. Power should be for the purpose which is
given to them.
2. To promote success of the company.
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3. Exercise independent judgment; leadership qualities.
4. To exercise reasonable care, skill and diligence.
5. Avoid conflict of interest, whether he takes benefit or not he should avoid such situation. How
can? He should not inter that transaction which risks are there. Or he should declare that interest
to BOD. If he does not follow he is breaching duty and can be sued for the breach of duty. Sued
can be filed against him by BOD, Majority of share holders, Company, or minority. Example:
company taking employee and BOD takes on the benefit his own relatives which he is not
qualified for that post.
6. Not to accept benefit from the third party.
7. declare interest in the proposed transaction (if there is person interest he should declare that to
the BOD)
The relationship of director is as trustee and agent in the company.
Directors are indemnified
If any case against any director two test are necessary:
1. objective: in a station ordinary prudent acts, whether that director acted or not.
2. Subjective: if a station came those reasonable criteria did he follow or not. If a director breaches a
duty then he would be tested whether he has done diligently that act or not. And why he didn’ t do
any thing in that situation is subjective type test.
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Prepared by: Mohammad Ismail
Principles of Equity-II
The Specific Relief Act
Historical Background of Equity
It is in common law system. King’ s court to implement the law of king. It was proved they don’ t’
act fairly for this the people were going for mercy to the king. King appointed a chancellor (Court of
Chancery). Then the concept of Lord Chancellor in 17th. The Dispute arises between two courts so
“ Jurisdiction shopping” . There was no end of litigation. By virtue of a Judicator Act in 1872 both courts
got together. Now there is no concept of equity in separate court. It is mixed with common courts. S.151 of
CPC/: inherent power: the power which is wasted without any authority. This was outcome of equity.
Definition of equity
Equity is good consince, fairness, justice. Another definition of equity is to mitigate the ragger of law.
Kinds of law
Civil law and Criminal law
Criminal law: any proceeding the object which is to punish the other person is criminal proceeding.
Civil law: any proceeding for the enforcement of civil right and the object is to get remedy is civil
proceeding.
Substantive law and Adjective law or Procedural law
Substantive law: creates rights and duties. Exp: Contract Act. Agency (principal and agent).
Procedural law: If they breach, where it can be enforced it s subject of procedural law.
Specific Relief Act is just concern with procedure, remedy and it is enactment of equitable Relief.
Exp: A------------B. A is seller and he has both B his property and took 10,000 so before equity it was that B
has to recover his money 10,000 and nothing else at the case of breach, and how good consiece says that
you have to sell to B so this is principal of equity there was no concept of specific relief and this remedy is
known as specific Relief.
Exp: A------B, A threat B. so equity temporary injection (restricting A from doing anything against B)
Specific Relief Act just provides the remedies. The practical procedure of contract Act is SRA.
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Specific Relief
Specific: exact. Relief: Remedy, obtainable from court against a wrong.
Wrong: injury (actual – infect, or apprehended which is to be happened) these two are subsequences of
wrong.
Kinds of Relief
General and Specific.
General Relief: a relief which is generally for all. Damages + Compensation. Which is also called
Compensatory relief.
Specific Relief: complete justice.
Positive and negative
Positive Relief: by order compel party to do something.
Negative Relief: to compel party to refrain from doing something.
An Act to define and amend the law relating to certain kinds of specific relief.
Define means to create. Amend means which is already exist, it is amended.
Certain: this is just for certain but there are some other reliefs which are not here under equity. Exp: TOP,
53A part performance. Land Revenue Act (Injunction)
Preamble: preface, what kinds of benefit we take from this? If there is any ambiguity we should approach
to preamble. It is non-operative part of any act.
Civil Suits: civil matters. Application of a case which the person require relief from the court.
The remedies which are available in specific relief can be obtained from civil courts only.
S.1: Local Extent: jurisdiction is authority. Jurisdiction is three kinds:
1. Pecuniary: Exp up to 10,000 Civil Judge 1, and up to 10,0000 CJ2)
2. Subject Matter: Certain subjects are classified in this, exp: Family Judge.
3. Territorial: Exp: CDA laws are just for urban areas of Islamabad.
Article 247 of constitution binds the operation of any law in PATA and FATA unless the president
extends that to FATA and governor extend to PATA by given ordinance.
Commencement: there is no effect before commencement.
S.2: Repeal: to cancel, omitted, having no effect, Abrogation. No effect of this section. There is two part of
law in common law countries:
1. Statute law.
2. Case history.
The section which is repealed we cannot take help of its case as well. No jurisprudence is there.
Omitted its precedent law can be used.
Having no effect: any provision of law if the court said having no effect so it is available in the books of
law but has no effect. The previous precedent can be used.
Abrogation: it is used in constitution, to finish.
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Reason of repealed
1. Change of circumstance, no need of this section.
2. It does not apply full meaning so the legislation makes it new so it is repealed. Exp: ADR no need of
this section in CPC because of full fledged law is created. So there is no need for this in CPC.
S.3 Interpretation
In this section the words which has been defined and same words come in other sections have same
meaning. Exp: abc means x, so abc is available in any provision means x provided that if section contrary
defines it against this section.
Obligation: every duty enforceable by law. It includes is used so it means that it can be defined without this
meaning. If we use means then it is closed no other meaning is possible for this.
Right means any interest+ recognition + protection by law. So it is any interest which is recognized and
protected by law.
Duty: every right has a correspondent duty. So obligation includes every duty enforceable by law.
Trust: confidence. Includes every species of express, implied, or constructive fiduciary relationship. In trust
there persons are included creator, trustee, beneficiary.
Exp: creator ----------------------trustee
Beneficiary
Creator is owner of property. He creates ownership of property and purpose of trust. So the creator he losses
all ownership. He transfers to trustee and he work for the purpose of that trust. Trust are implied, chartable,
express, public, ect. There is private trust as well.
Exp: father ----------------------son (trustee)
(Creator)
grand son (beneficiary)
Implied trust
Exp: A--------------B. A is shopkeeper and B is buyer, so B left articles in A’ s shop so here an implied trust
is created. Another example is finder of goods.
Fiduciary relationship is relation of trust + confidence. Such as principal and agent, teacher and student,
parent and son.
Trustee: any person who is holding expressly or implicitly a fiduciary character.
Settlement: it is a private management between people. Not by court but for enforcement it can be taken to
court.
A settled a settlement of Property to B. ¼ of his property goes to B before his death at 1 st Feb 2010. It is
settlement.
Will settlement: A---------P---------B. A settled ¼ of his property after death (will) it is will settlement.
There is also Family settlement is private. Settlement of will is excepted here.
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Words defined: this is enabling clause: it imports some concepts from other law. Exp: contract is not
defined in specific relief so it is defined in contract Act, it enables that it is same as Contract Act.
S.4: Savings: by using the word saving exception is created in this section. This act will not be applicable to
(if expressly not enacted). There are three principles they have to be followed if expressly any exception
created so they are banned.
a) To give any right to relief to any agreement which is not contract.
Agreement is set of promises + consideration. Agreement+ enforced by law is contract. Social agreements
are not contract. No relief or remedy can be given to these contracts. Relief will be on base of valid contract.
Valid contract is offer + acceptance+ consideration.
b) To deprive any person of any right to relief, other than specific performance, which he may have
under any contract.
Exp: A--------------B.
A is seller and B is purchaser. A wanted to sell his property to B and has taken from him about 2,000
earnest money, and says if A fails to give property he should give double amount and if B fails to pay
amount so the earnest amount will be forfeiture. If A refused to transfer land, what will be the remedy?
1. Double earned money 4,000.
2. Full compliance is specific performance.
Specific relief act does not creat a bar for person to seek remedy other than specific performance.
c) Nothing in this act should be deemed to effect the operation of the Registration Act on document.
Registration Act: the purpose is to register the documents, and every person should be aware of that. S.17 of
Registration express a list of documents which are compulsory registered because of presumption. Effect of
non- registration is explained in S.49 explains that it can be used as evidence.
Any document which is not registered cannot take remedy or use Specific Relief. This section provides
three principles. These three are not available in other sections. If anything which is expressly declared and
that should be applied not these three principles. This is in especial cases.
S.5: Specific Relief how given? In the following situation specific relief are given:
1. By taking possession of certain property and delivering it to a claimant.
A----------B. A is claimant and he claims property against B so the possession is with B by taking that
possession from B and delivering it to A is called that specific relief is given. S.8-11 explains this.
2. By ordering party to do which is under an obligation to do.
A is seller and B is purchaser of a property. Specific Relief order A to do obligation. Chapter 2 explains this.
3. By preventing a party under obligation not to do. Ch- 9, 10. Injunction is related to this. S.52-57.
4. By determining ad declaring the right of party other than compensation. A----B, the court will
determine that who is the owner of property Ch- V, so 42 explain.
5. By appointing a receiver. S. 44 explain this.
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S.6: preventive relief: is sort of relief which is granted by injunction to prevent from doing something.
Exp: A----------------------B, B wants to Construct a building in A’ s land so court says B not to construct in
land of A. this is preventive relief.
Injunction: is judicial process where as a party is required to do or refrain from doing a particular thing,
according to the existences of the matter.
S.7: any act the purpose is merely to enforce penal law the specific relief cannot be given to that.
For whom Contracts may be specifically enforced
S. 23: Who may obtain specific performance
Who can ask specific performance and against whom. General rule is that third party (not privities of
contract) cannot ask for specific relief.
If there is an exception provided in this chapter, following are the person who can be granted
specific performance.
a) any party of contract
b) the representative in interest or the principal can ask for the specific performance, A-----B -------- C
(principal), but here any representative can ask although he is not the party but can ask for specific
performance. If the contract is personal services or skill then cannot be specifically performed by
representative or principal unless his part thereof has been performed already.
c) If it is settlement of marriage or a compromise of doubtful rights between the members of the same
family then any person who is beneficially entitled can ask for specific performance.
A ------------- B C D. A is deceased and BCD are creditors, F can ask for Specific
performance.
F.
A (father) ----------B (Bridegroom) A can ask for Specific performance.
C (Bride)
d) If the contract has been entered into by a tenant for life in due exercise of power, the reminder man
can ask for specific performance.
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Reminder man: he is a person taking the remainder; and remainder is an ulterior estate limited to
take effect and to be enjoyed after a prior estate is determined, both estates being created at the same
time. It arises out of express grant.
A __tenant B. is not the party, he is the reminder so he can ask for specific performance.
C.
e) A reversioner in possession where the agreement is covenant (agreement), entered into with his
predecessor-in-title and the reversioner is entitled to the benefit of such covenant. It means that the
reversioner must have been entitled to the benefit of the covenant.
f) A reversionarer-in-remainder, where the agreement is such a covenant and the reversioner is entitled
to the benefit thereof and will sustain material injury by reason of its breach.
g) When a public company is amalgamated, the new company can ask for specific performance.
A (company) ---------------------------B (individual Co), Company A amalgamated with Company C and
made a new company by the name of D. so D can ask B for specific performance of the contract.
h) When the promoter of a public company has, before its incorporation entered into a contract for the
purpose of the company, and such contract is warranted by the terms of the incorporation, the
company can ask for specific performance.
Promoters: the persons who want to make a company. If promoters contracted so the company
subsequently can ask for the Specific performance.
For whom Contracts cannot be specifically enforced
S.24: person bars to the relief
Specific performance of a contract cannot be enforced in favour of a person:
a) who could not recover compensation.
b) Who has become incapable of performing, or violates any essential terms of the contract that on his
part remains to be performed cannot ask for specific performance. It means the person who by
himself is in default cannot ask for SP.
A contract to sell B a house and garden in which there are ornamental trees, a material element in the
value of the property as a residence. A without consent of B, fells the trees. A cannot ask for specific
performance.
c) who has chosen his remedy for breach of contract cannot ask for SP.
A contracts to let and B contracts to take, a house for a specific term as specified rent. B refuses to
perform the contract. A thereupon sues for, and obtains compensation for the breach. A cannot obtain
specific performance of the contract.
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d) who knew and had notice that settlement of the subject matter thereof had been made so he cannot
ask for specific performance.
A------------------B------------C . A settlement between B and C, A who is in knowledge of this settlement, he
has settled sell with B so he would be barred and cannot ask for SP.
S.25: Contracts to sell property by one who has no title or who is a voluntary settlor
In this section plaintiff is lessor or vendor, and defendant is lesee or purchaser. A contract of the sale
or letting of a property, whether movable or immovable cannot be specifically enforced in favour of vendor
or lessor in below situation:
a) a person who has no title to the property has contracted.
A, without C’ s authority, contracts to sell to B an estate which A knows to belong to C, A cannot enforce
specific performance of this contract, even though C is willing to confirm it
b) who, though he entered into the contract believing that he had a good title to the property,
cannot, at the time fixed by the parties or by court for the completion of the sale or letting, give
the purchaser or lesee a title free from reasonable doubt;
c) who has previously made a settlement of the subject matter of the contract.
A, out of natural love and affection, makes a settlement of certain property on his brother s and their
issue, and afterwards enters into a contract to sell the property to a stranger. A cannot enforce specific
performance of this contract so as to override the settlement, and thus prejudice the interest of the person
claiming under it.
For whom Contracts cannot be specifically enforced except with variation
S.26: Non-enforcement except with variation
Five categories of the contract will not be specially enforced except with variation:
a) where by fraud or mistake of fact the contract of which performance is sought is in terms different
from that which the defendant supposed to be entered into contract.
This clause contemplates the case of an error on the part of the defendant as to the terms provided he is
induced by fraud or mistake of fact;
P---------------------D for 10000. But D says that it is not the amount, the terms and conditions are
changed, by fraud or mistake so if P wants specific performance he should accept this with variation. But D
has to prove this.
b) Where by fraud, mistake of fact, or surprise the defendant entered into a contract under a reasonable
misunderstanding as its effect is between him and plaintiff.
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A --------- B, to compel specific performance of a contract in writing to buy a dwelling house. B proves
that he assumed that the contract included an adjoining yard, and the contract was so framed as to leave it
doubtful whether the yard included or not. The court will refuse to enforce except with the variation.
c) If the defendant knowing the terms and conditions entered into the contract relying upon
misrepresentation of plaintiff or by stipulation on the plaintiff’ s part which adds in the contract, but
he refuses to fulfill that. So it is not performed except with the variation of defendant.
d) If the object of the parties was to produce a legal result, which they entered into a contract, but is not
calculated to produce so it is not SP except with variation.
e) If the parties have subsequently to the execution contracted to vary the previous contract then it is
specifically performed with variation.
Rectification of Instruments
Rectification: correction
Instruments: any document which creates, transfers, or exceeds right. Or any document which determine
rights and liabilities. Exp; will, trust, lease.
S.31: When instrument may be rectified
When there is need of rectification, if there is a mistake and the court will see the intention of the
party. In this section there are two grounds of rectification:
1. If the written instrument executed by fraud.
Seller-----3 houses (ABC) ------- purchaser. Purchaser includes all houses but seller intended to sell
house A through fraud of purchaser house B and C is also included. Who has to proof? The seller, initial
presumption is in the favor of the purchaser, seller has to proof that he wanted to sell just one house not
all.
2. if fraud of mutual mistake, if there is a mutual mistake of the parties it is also rectified. If both
parties mistake (mutual mistake has to be removed) subsequently they can rectify in order to create
legal rights.
Any party or his representative in interest can sue for the rectification of the instrument, every instrument
can be rectified such as will, trust, etc. it is not limited to contract. The satisfaction of court is necessary and
sees what intention of the party is so then the instrument can be rectified. Two things should be created by
court:
1. To see or find the fraud.
2. To know the intention
There is a limitation for the third party.
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A (seller) ------- B ------- C (Purchaser). The house was sold to C and he bought it with value and
good faith it cannot be rectified so the consideration will be paid to the owner. But if is not in due value so
then it can be rectified.
S.32: Presumption as to intent of parties
This section is confining just in contract not other instrument. It is related to the intention of parties.
The court presumes that it was bought true and honest or not for the purpose of rectification.
S.33: Principles of rectification
What are the guidelines for the court for rectification of a written instrument? The court will have to
look and inquire the intention of the parties. Not to wording of the parties. The court will not ascertain the
language of it.
S.34: Specific enforcement of rectified contract
This section gives discretion to the court to grant specific performance along with rectification if
court deems it fit. First the contract may be rectified and then if the plaintiff has so prayed in his plaint so
the court may decree for specific performance as well.
P--------------------------D
If there is claim of right and denies of right so the plaintiff has to declare his right by S.8, and proof
possession if in a case it is rectified then specific performance so the plaintiff has to sue all in one case.
Declaration, possession, rectification, injunction.
The Rescission of Contracts
S.35: When rescission may be adjudged
Any person who is interested in the contract can rescind the contract and recession may be adjudged
(to resolve the controversy) by the court in the following cases;
a) if the contract is voidable or terminable by the plaintiff. It means if plaintiff wants to void the
contract he has to sue for rescission of the contract under this section.
b) if the agreement is unlawful for cause not apparent on its face. And defendant is more to blame
than the plaintiff.
c) where a decree for specific performance of a contract of sale, or a contract to take lease, has been
made, and the purchaser or lessee makes default in payment of the purchase money or other sums which the
court has ordered him to pay then the party can sue for rescission of contract.
When the purchaser or lessee is in the possession of subject matter and the courts finds that such
possession is wrongful, the court may also order him to pay to the vendor or lessor the rents and profits, if
any, received by him as such possessor.
In the same case the court can order for rescinds either for the default or completely, as the justice of
the case may require. Leading case: 2009 CLC 809.
S.36: Rescission for mistake
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Rescission of the contract cannot be made for mere mistake, unless the party against whom it is
adjudged can be restored to substantially the same position as if the contract has not been made.
The plaintiff sued to set arise the lease on the ground of mistake, but relief was refused to him
because he was not prepared to give up possession of the lands comprised in the lease.
S.37: Alternative prayer for rescission in suit for specific performance
The party can ask for alternate, either by rectification or rescission such as if the court cannot give
specific performance so the court can rescinds the contract. It means if the plaintiff sued a case for specific
performance if the suit cannot be specifically enforced, it may be rescinded alternatively.
S.38: Court may require party rescinding to do equity
According to justice there should be fund or monetary compensation for the other party against
whom the rescission of contract is ordered. This section is not concerned with the case of plaintiff who
seeks rescission and also damages; it refers to the special case where a defendant on a decree for rescission
of a contract is entitled to compensation.
The Cancellation of Instruments
S.39: When cancellation may be ordered
Any person against whom the following things occur he may sue for cancellation:
1. Any instrument written is void or voidable. Void instrument is which does not create nay right. Exp;
if a person execute without any authority. And voidable means with authority but consent was with
undue influence or coercion, misrepresentation. That person can sue for cancellation of that
instrument.
2. Reasonable apprehension, it means preventive relief, protection for the plaintiff.
3. If it is left it would be cause him serious injury.
A--------------------B
C
A executed another sale deed with C regarding same land, B sue that if A does not give land so it
will cause him huge injury and loss.
A (husband)----------------------B (wife)
C (2nd Wife)
A refused C to be her wife and she has Nikah Nama so B can sue for cancellation of this Nekah
Nama because this will give a big injury after the death of A.
A, the owner of a ship by fraudulently representing her to be seaworthy, induces B, an under-writer
to insure her. B may obtain the cancellation of the policy.
If the instrument is registered under registration Act so after cancellation court shall also send a copy
of its decree to the registrar office and he will note on the copy of the instrument contained in his books the
fact of its cancellation.
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Difference between rescission and cancellation that in rescission the contract is either voidable only
or unlawful or nullity is not apparent on its face. But in cancellation it includes void as well as voidable
instruments, whether the nullity be apparent or not and there must be reasonable apprehension of serious
injury.
S.40: What instrument maybe partially cancelled
If the court has power to cancel fully, it has power to cancel partly as well. If there are different
rights, and obligations so the part which is valid will not be canceled and the part which are void may be
canceled.
A draws a bill on B, who endorses to C by whom it appears to be endorsed to D, who endorses to E,
C’ s endorsement cancelled, leaving the bill to stand in other respects.
There is an instrument half is gift, and half is attorney, attorney is forged so this part of instrument
will be canceled not gift.
S.41: Power to require party for whom instrument is cancelled to make compensation
The court may require the party to whom such relief is granted to make compensation to other which
justice may require.
Declaratory Decrees
S.42: Discretion of Court as to declaration of status or right
If any person entitled of any right and other person denies it, he can go to civil court for declaration
of his right. Any person shows his entitlement he would be entitled for that there should be three things:
1. Any person.
2. Entitlement.
3. Legal right + character.
Character: example; there is a lesee and lessor says that you are not any more he can go to the court and
proof agreement.
Right: A------B says about one property and person who shows his entitlement that is his right.
Declaratory things can be obtained in both ways if denied or interest to deny.
Bar to such declaration: this is exception that the court will not declare if that plaintiff can ask for
more than declaration but he does not do so. The court will not declare that, because there might be some
fishy things in that case. Such Declaration + possession.
A is in lawful possession of certain land. The inhabitants of a neighboring village claim a right of
way across the land. A may sue for a declaration that they are not entitled to the right so claimed.
A is in possession of certain property. B, alleging that he is the owner of the property, requires A to
deliver it to him. A may obtain a declaration of his right to hold the property.
S.43: Effect of declaration
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The declaration made under this chapter is binding only to the privity of the contract (the contract is
binding just on the parties) not the third person. But if he dies then his legal hires.
A-----------------------B
A suit B for declaration, it is just binding on B not C because C is not the party of this plaint.
Appointment of Receivers
S.44: Appointment of Receivers discretionary
The appointment of a receiver in a pending suit is a discretionary matter of the court. And Cross
reference of appointing is explained in the Code of Civil Procedure Order 40. Order 40 gives 4 rules and
how appointment will be made, what are duties and rights of receivers.
He is appointed when it appears to the Court necessary for the realization, preservation, or better
custody or management of the property the subject of a suit.
Preventive Relief
Injunctions Generally
Injunction: to refrain from doing or claming something.
S.52: preventive relief how granted
Preventive relief is granted by the discretion of the court by injunction temporary or perpetual.
S.53: 1. Temporary Injunction: It is granted during the hearing of suit, to continue until specific time or
further order of the court. It is regulated by the CPC.
2. Perpetual Injunction: it is only be granted by a decree after hearing the case, at the end of litigation. It
will restrain him forever.
Perpetual Injunction
S.54: Perpetual Injunction when granted
In order to prevent the breach of obligation, perpetual injunction is granted. Example; right of
property, obligation to all public not to interfere, so any interfered the court will grant perpetual injunction.
The court may grant perpetual injunction in the following cases:
a) where the defendant is trustee of the property for the plaintiff.
b) If there is no standard for ascertaining the actual damage caused by the invasion.
c) Where the invasion is such that pecuniary compensation is not adequate relief.
d) Where the injunction is probable that pecuniary compensation cannot be got for the invasion.
e) Where the injunction is necessary to prevent a multiplicity of judicial procedure.
S.55: Mandatory Injunction
Writ of Mandamus means to perform your obligation, to do what your oblized to do.
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A builds a house with eaves projecting over B’ s land. B may sue for an injunction to pull down so
much of the eaves as so project.
S.56: Injunction when refused
Injunction cannot be granted:
a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought,
unless such restraint is necessary to prevent a multiplicity of proceedings.
b) To stay proceedings in a court not subordinate to that from which the injuctoin is sought.
c) To restrain person from applying to any legislative body.
d) No stay can be against any department of federal or provincial government.
e) To stay proceeding in criminal court.
f) To prevent the breach of a contract the performance of which would nto be specifically enforced.
g) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be
nuisance.
h) To prevent a continuing breach in which the applicant has acquiesced.
i) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding
except in case of breach of trust.
j) When the conduct of the applicant or his agent has been such as to disentitle him.
k) Where the applicant has no personal interest in the matter.
S.57: Injunction to perform negative agreement: if part of contract is to do and part not to do any thing the
court will not restrain to grant injunction. Prepared by: Mohammad Ismail
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Constitutional Law III (Administrative law)
Prepared by: Mohammad Ismail
Definition of Administrative Law
It is difficult to define administrative law in a precise manner. Attempts have been made over the
years by various writers to define administrative law as precisely as possible. Sir Ivor Jennings wrote that
“ administrative law is the law relating tot the administration. It determines the organization, powers and
duties of administrative authorities” .
Maitland says that constitutional law deals with structure, and administrative law deals with
function” .
Pr. Wade says, “ It is the law relating to the control of the governmental power and as a second
approximation to the definition, administrative law may be said to be the body of general principles which
govern he exercise of powers and duties by public authorities” .
K.C. Davis defined it as, “ the law concerning the powers and procedures of administrative agencies,
including especially the law governing juridical review of administrative action” . Administrative law
primary concerning with the following:
a. What is the structure of the administration?
b. What sort of powers and procedures does the administration exercise?
c. What are the limits of those powers and procedures?
d. How fairly such powers and procedures are exercise?
e. What are the ways in which the administration is kept within those limits?
f. How the contents of those exercised powers are are to be examined?
g. What machinery can be provided to check maladministration or excessive use of power?
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Nature and scope of administrative law
In order to determine the nature and scope of administrative law, it is imperative to know what it
deals with. Administrative law deals with the structure, powers and functions of the organs of
administration, the limits of their powers and functions, the method and procedures followed by them in
exercising their powers and functions, the methods by which their powers are controlled including the legal
remedies available to a person against them when his rights are infringed by their operation.
Study of administrative law of today seeks to emphasize not only the extraneous control but also the
processes and procedures which the administrative authorizes themselves follow in the exercise of their
powers. In the modern day onslaught of administration, the individual is affected in many ways in the name
of “ public good” and “ public interest” . The individual is in the weakest defensive position against the
mighty power of the administration. It is for this the important function of the administrative law to ensure
that government’ s powers are exercise according to law, on proper legal principles, according to the rules
of reason and justice, and not on the mere caprice or whim of the administrative officers, and that the
individual has adequate remedies when his rights are effected by the administration.
Historical Development of Administrative Law
Administrative law is one the development of the twentieth century, but it does not mean that there
was no administrative law in any country before that. It is as ancient as the administration itself as it is
connection of organized administration. Now we will see in below the development of administrative law in
India, USA, UK and other states:
1. Centralized administration of Guptas & Mauryas in India.
In India administrative law can be traced to the well organized and centralized administration of
Mauryas and Guptas (these two were two dynasties which were ruling India) several centuries before the
Christ, this was the first administrative setup.
2. Mughal era of administration
Following then to administration under Mughal system which is the precursor of the modern
administrative system. In this system they have separated executive from judiciary.
3. Administrative set up under East Indian Company: they started colonization, and
educational system.
4. British & American Articulate and Definitive Democratic Administration.
5. Emergence of Separation of power b/w Constitution and Administrative law.
Pre- 1688 Period
a) Centralized control of Privy Council: Privy Council used to be three organs, judicial,
legislative, judiciary, it was time of emerges of powers and Privy Council used to control over the three
organs.
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b) Administrative functions of judiciary: Judiciary used to perform executive power, there were
no separation of power, and a body was working in three organs.
c) Democratization of relation b/w parliament and Crown: democratization of two powerful
institutions crown and parliament, there was a tussle between these two. It ended by decentralization of
crown and parliament.
d) Gradual reconciliation between power and liberty: process of reconciliation between power of
administration and liberty of individual was on that time. The two opposites have to be reconciled.
1688-1900 Period
a) Impact of civil war and industrial revolution of 17 th: industrial revolution and civil war cased
development. Industrial revolution in France, they have separated from England. The revolution of 17th
caused two which were liberal and millionaire (industrial) and this caused exploitation of labour by the hand
of industrial and it cased emergence of Marix and it resulted to different revolution and world wars.
b) Shift of powers from crown to parliament: out come civil wars was that it was shift of powers
from crown to parliament. The shift of power caused another theory which is called welfare state theory.
And on that theory there was less interference of state in the affairs of individuals. But welfare state theory
every phase of our life is running by the state. It has increased the environment of government in the life of
the people.
c) Separation of power emerged: result of theory of Montus. He came out with the solution that the
problem that there must be separation of power. The three powers or organs have to work in their
framework and not to interfere with others.
d) Extension in supervisory jurisdiction of courts: it is judiciary which reverses the wrong
decision of executive. There are limitations of executive power and this limitation is fixed by judiciary. And
scope of writ jurisdiction extended and it befitted to the individuals and gave liberty to the people.
1900 – to date
a) Increased use of delegated legislation: this principle was first departure of separation of power.
Each organ of the state should work according o their functions. This rule was although law making is in the
hand of legislation, for some specialized function some law should be made for the regulation of them by
other authority. Such as rules for universities. If every and each work of law is in the hand of parliament
they cannot make everything. The power of law making to be given to specialized institution is called
delegated legislation.
b) Report of committee on Ministers powers 1932: in 1930 there was more demonstration against
the ministers. It was agitation against administration or ministers. There was a committee for mister to
report eh powers of Ministers which was known as Donoughmore Committee on Ministers Powers 1932,
this committee is reported to the parliament that rights of the people should not be demolished by the
ministers.
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c) Increase use of Tribunals as against regular courts: the above report resulted another new
thing which is called Tribunals as against Regular courts. In on those Tribunals a person can go by himself,
no court fee, is speedy and judicial is lengthy process. These tribunals are such ITAT, Labour Courts, SEC,
and Consumer Courts.
d) Emergence of judicial activism: reversing many administrative actions, when judiciary is
empowered to reverse even legislative action, even constitution amendments can be set a site.
e) New justification of judicial review emerged: new malafide administration can be checked and
balanced.
Causes of development of administrative law
1. Acquisition of vast powers by government due to defence reasons.
The rapid growth of administrative law in modern times can partly be attributed to the critical
international and international situation leading to a sense of insecurity which compels the government to
acquire vast powers to provide for the defence of the country, particularly in an emergency and to maintain
law and order within the country? But mainly, the growth of administrative law is to be attributed to a
change of philosophy as to the roe and function of the state. As we can see in the case of Liversidge V
Anderson 1942 AC 206. In this case it was between an aggrieved person and secretary of state which he has
detained him because of national defense.
2. Radical change in role of state
That was minimum state control and maximum free trade which based on the theory of Laissez Fair
theory. This was the ruling political gospel of the 19th century which manifested it self the theories of
individualism, individual enterprise and self help. The philosophy envisaged minimum government control,
maximum free enterprise and contractual freedom. The state was characterized as the “ law and order”
state and its role was conceived to be negative as its interest marinating law and order within the country.
The management of social and economic life was not regarded as governmental responsibility. But Liaises
faire doctrine resulted in human misery. It can to be realized that the bargaining position of every person
was not equal and uncontrolled contractual freedom led to exploitation of the weaker by the stronger.
3. Emergence of welfare states.
The emergence of the social welfare concept has affected the democracies very profoundly. It has led to
state activism. There has occurred a phenomenal increase in the area of state operation; it has taken over a
number of functions which were previously left to private enterprise. The state today pervades every aspect
of human life; it runs buses, railways ad postal services, planning of social and economic life of the
community with a view to raise the living standards of the people and reducing concentration of wealth,
look after health, moral and education of the people, electric, works, mines. The function of state now a day
extended to five categories, as protector, provider, entrepreneur, economic controller and arbiter.
4. Maintenance of social justice through nationalization and privatization
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The ideal of social welfare state is sought to be translated into practice through state planning of economic
resources and social control of private enterprise with a view to create a socio-economic pattern of society
which involves improvement the economic condition of the people keeping in view the demands of social
justice. A large number of government enterprises have been nationalized such as industries, finical
institution and transports;
5. Delegation of power to administration (legislative, executive, judiciary)
State consists of three organs, while increase in state activities has meant increased work for all organs,
yet the largest extension in depth and range of function and powers has taken place at the level of
executivcum administrative organ. Administration exercise today not only the traditional factions of
administration, but all types of powers, it exercise legislative power and issues order, and delegated
legislation has been assumed more important, and has acquired power of adjudication over disputes between
itself and private individuals, and private inter se.
6. Anticipatory polices of government. (to make a policy before occurrence of any event)
Judicial Contribution for Development of Administrative Law
a. The outcome of Report of Committee on Ministers powers 1932:
To what extent judiciary in England help in development of administrative law? The excessive
power used by ministers in England is out of jurisdiction and arbitrary. And with clear violation of law, and
fundamental rights. Availability of service, issuance of matter was the matter of discretion. Such as no one
can ask a right for licenses and NAPDA, Kota, etc. so this committee submitted that today we are much
governed people and it is sub Serbian of state.
b. Liversidge V Anderson 1942
If some body is arrested by detentive prevention, then Ministry has no power to deny the access of
advocate to that person.
The order of home secretary without making that he should choose council is null and void, before
that it was that detention was legal but after this case the court entered into this issue and they reversed the
order of minister.
c. Recourse betting control board V secretary of Air (1944)
Supervisory jurisdiction of court for review of orders of ministers both question of law and fact. It is
subject to review, before it was subject to review just the question of law, but in this case it was decided that
the court can review both the question of fact and law. And this is supremacy of judicial.
If even there is ouster clause in any order the court can review that order because the court has
inherent power to review this as well. And this power has been given by constitution to the court.
d. Duncan V Canmel Laid & Co 1942
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This case dealt with separation of evidence for national security is untenable, unjustifiable not
allowed. If the court permits then it is allowed.
e. Nakhuda Ali V Jayaratne 1951
Deals with the cancellation of license or permits, if any authority without any reason cancels so this
is illegal and not reasonable so the court can revise the order.
f. Frank’ s Committee Report 1958: After this administration made a committee for determination of this.
And judicial protism is justified but should be in a limit and law should be changed because of this the
Tribunal Acts 1958 has been enacted.
Utility of Administration
1. Regulating the relations between citizen and state: Administrative law gives us the idea of
regulating the relations between citizens and state. Two aspect in a society, administrative and common
people, senior consulate of lawyer will hip the people for administration of people and solving problems. for
example; service tribunals. This is a court which hear the cases of civil services and if there is any
aggression against the state. So these matters are dealt with these tribunals and follow summary procedure.
Administrative law gives or helps service tribunals to end the litigation fastly.
2. Protection of interest of people against state: Between individual liberty and the powers of the
government, there is an age old conflict. There thus arises the nee for constantly adjusting the relationship
between the government and the governed so that a proper balance may be evolved between he the private
and the public interest.
3. Precaution against misuse and abuse of power by administrative: all powers are correct and
absolute power corrupts absolutely this is an old adage containing a lot of truth in it. By studying
administrative law we come to know that the protection of abuse of power is necessary. it is the demand of
produce that even when sweeping powers are to be conferred on administrative organs, adequate controlmechanism be also evolved so as to ensure that the officials do not use their powers in an undue manner or
for an unwarranted purpose.
4. Ensuring rule of laws, fair play, implementation of principles of natural justice and
democratic values: it is the task of administrative law to ensure that the governmental functions are
exercised according to law, on proper legal principles and according to rules of reason and justice.
5. Developing adequate control mechanism: administrative law provides the adequate controlmechanism, judicial and otherwise, to check administrative abuses without unduly hampering the
administration in the discharge of its functions efficiently.
6. Protections against arbitrary and capricious exercise of powers and exercise of discretion:
Administrative law controls the misuse of discretionary powers. The objective of administrative law is to
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ensure legal control of the administrative power and to provide protection to the individual against abuse of
such power.
7. Regulating private and public interests: individuals are also included in contest of public rights
and private rights. It helps us in private law reviews as well as public laws such as constitution and
administrative law. It is the law which deals with the regulation of three powers. Administrative law seeks
to adjust the relationship between public power and personal rights.
8. Preventing state despotism: a country in which the roots of democracy are not very deep, a
strong bureaucracy may have the tendency to undermine the rights of people. If exercised properly, the vast
powers of the administration may lead to the welfare state; but if abused, they may lead to administrative
despotism.
9. Evolving powers control mechanism: a careful and systematic study and development of
administrative law may help to keep the control of administration in check and geared towards the larger
public interest.
10. Ensuring judicious administrative adjudication: a decision making not by regular court but
by tribunals, by inquiry or administration.
Logical Nexus between Rule of Law & Administrative Law
a. The doctrine of "Rule of law" & its three manifestations
Albert Dicey has given the idea of rule in 1885, means "the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of
prerogative or even wide discretionary authority on the part of government". He said that England was ruled
by law and law alone. He said wherever there is discretion there is room for arbitrariness which led to
insecurity of legal freedom of the citizens. He said rule of law has three manifestations:
1.
No one is above the law: every person was subject to one and the same law.
2.
Every one equal before the law: equality before the law or the equal subjection of all
classes to the ordinary law of the land administered by the ordinary law courts.
3.
The rights of people and protection of it is judicial responsibility.
b. Dicey's criticism of French "Driot Administratiff" system
Dicey criticized the system of droit administratif prevailing in France where there were separate
administrative tribunals for deciding cases between the government and citizens. He went on the state that in
England there was no administrative law. This thesis of Dicey has had impact on the growth of
administrative law in England.
c. The legality or legitimacy of Royal immunities and prerogatives
Dicey he ignored the privileges and immunities enjoyed by the Crown (thus the whole government such
as King, local offices, and even diplomatic immunities). Under the cover of constitution maxim that the king
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can do no wrong. He also ignored the growth of administrative tribunals, quite a few of which had come
into existence by 1885. It is interesting to understand that Dicey was denying the existence of administrative
law in England.
d. Board of education V Rice (1911)
It was held that the power of executive is subject to review by the court on the ground of natural justice.
It can be reversed in this case shows that rule of hearing is presumed in every statutes, by any body. Even by
legislative or executive. This finished the finality clause in England.
e. Local government Board V Arlidge 1915
This case is also same above that discretionary power is not used such that. And executive discretionary
became under the judiciary. Means that executive discretionary is subject to review.
f. Lord Hewert's opinion in book titled "the new despotism" (1929)
Lord Herwert, in 1929 in his book, The New Despotism made a scathing attack on the expansion of
administrative powers of legislation and adjudication, and warned that vast opportunities had come to exist
for misuse of powers of officials. He claimed that bureaucracy had become the true rules of the country.
g. Establishment of committee on Minister's powers in UK (1929)
As a result of Lord Herwert idea and opinions the Committee on Ministers Powers was appointed in
1929 to consider the powers exercised by or under direction of Ministers of the Crown by way of:
1.
Delegated legislation.
2.
Judicial or quasi-judicial decision.
And to report what safeguards are desirable to secure the constitutional principles of the sovereignty of
Parliament and the Supremacy of law. The Committee has submitted its report in 1932. It found nothing
fundamentally wrong tin the developments which were taking place. It accepted that there were
opportunities for misuse of powers by the administration and therefore, made a number of suggestions to
improve the control and supervisory mechanism. The report called attention to three main defects in the
existing system of administrative law:
1. The legislation.
2. The lacuna in the law caused by the inability of a subject to sue the Crown in trot.
3. The extent to which the control and supervisory of administrative decisions were passing out of hands
of the courts and were being entrusted by Parliament to specialist tribunals and enquires.
h. Statutory instruments Act 1946 & Crown proceeding Act 1947
As a result of these finding, the House of Commons established a committee on Statutory Instrument in
1944. In 1946, the Statuary instruments Act was enacted to tidy up, to some extent, matters relating to
subordinate legislation. This Act has been characterized as purporting to enact a “ comprehensive
procedural code for the making of subordinate legislation” . It formulates rules for publication of statutory
instruments and also regulates the laying procedure before Parliament. In 1947, Parliament enacted the
Crown Proceedings Act of liberalize the law relating to civil proceedings against the Crown.
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i. Frank’ s Committee Report
The Crichel Down Affairs52 1954 not let only to the resignation of the Minister of Agriculture, but also
to the appointment of the Franks Committee to look into the system of adjudication by the administration.
The Franks Report of 1957 was formed by a committee of inquiry chaired by Sir Oliver Franks in respect
of growing concern as to range and diversity of the tribunals and uncertainty to the procedures they
followed and worry with lack of cohesion and supervision. The catalyst for this was the Crichel Down
Affair. However, this was a result of a high-handed decision by the government, but the Franks committee
was told to limit its discussion to formal statutory procedure and not go into decisions of the courts or oneoff decisions
j. Tribunals and Inquiries Acts 1958
As a result of the Committee’ s finding and recommendations, the Tribunals and Inquires Act was
enacted in 1985. It led to the appointment of a Council on Tribunals and the making of various procedural
improvements in the working of the tribunals and inquires in the country.
k. Establishment of office of ombudsman in UK 1967: International Commission of Jurists
suggested the appointment of ombudsman so it has been adopted firstly.
Separation of Powers & Administrative Law
1.
Introduction of concept
The doctrine of separation of powers had a deep impact on the growth of administrative process and
administrative law in the United States. The doctrine of separation of powers is implicit in American
Constitution. It emphasizes the mutually exclusiveness of three organs of the government. The legislature
cannot exercise the executive or judicial power, executive cannot exercise legislative o judicial power, and
the judiciary cannot exercise the other two powers. This doctrine was introduced in USA by Montesquieu in
late 17th. There would be an end of everything, were the same man or the same body, whether of the nobles
or the people, to exercise those three powers, that of exacting laws, that of executing the public resolutions
and of trying the causes of individuals.
2.
Elements of separation Doctrine
1. The same person should not form part of more than one of the three organs of the government. For
example, misters should not sit in Parliament. The parliament is not to work in disputes.
2. One organ of the government should not interfere with any other organ of the government.
3. One organ of the government should not exercise the functions as signed to any other organ.
3.
Practicality of exclusives of elements of government
Whether it is possible that all these three organs work separately in practical? No because there is a
system of check and balance in USA such as President is the highest administration, the appointment of him
52
. The affair of land being leased by the Ministry of Agriculture in the Attlee government instead of it being returned to origi nal owners as promised by Churchill. More information
of the Main Topic of Rule of Law is from page: 19-21 of Hamid Khan’ s book.
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should be rectified by Senate. Or the law can be made null and void by Supreme Court in USA. The
doctrine of separation of powers does not apply rigorously even in USA for instance, a bill passed by the
Congress may be vetoed by the President, and to this extent, the President may be said to be exercising
legislative functions. Again certain appointments of high officials are to be approved by the Senate, and also
the treaties made by the President do not take effect until they are approved by the Senate; to this extent, the
Senate may be said to be exercising executive functions. The president of the USA interferes with the
exercise of powers by the Congress though the excise of his veto power. He also exercises the law making
power in exercise of his treaty making power. The president also interferes in the functions of the Supreme
Court by appointment of judges. So it is not possible strictly to follow the separation of power even in USA.
This exercise of some functions of one organ by the other is justified as checks and balance. The functioning
of one organ being checked to some extent by the other. From the above discussion it becomes clear that the
doctrine in its classical sense which is structural rather than functional cannot be literally applied to any
modern government because neither the powers of the governments can be kept in watertight compartments
nor can any government run on strict separation of powers.
4.
System of check and Balance in USA
If the doctrine of separation of powers in its classical sense, which now considered as a high school
textbook interpretation of this doctrine, cannot be applied to any modern government, this does not mean
that the doctrine has no relevance in the world of today. Montesquieu himself never used the word
separation. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise
of power by the three organs of the state is soul of the doctrine of separation of powers. Hence the doctrine
can be better appreciated as a doctrine of ‘ check and balance’ and in this sense administrative process is
not an antithesis of the doctrine of separation of powers.
5.
Exception to the separation rules
i. establishment of tax court in USA
It was introduced by congress by Administrative Procedure Act 1946. It produced some exceptions.
This law allowed the establishment of Tax Tribunals (only in the tax matter) specialized tax officers as
litigation. They are not the court but working subordinately. The reason was that specialized issues and
technical maters should be dealt by the technical persons. And if not then delay in the process of litigation
will be occurred. This Tribunal gave good result.
ii. Independent Statutory commission
Independent Statutory Commission means that a commission to check out the legislative policy. To
guide the congress with reference to law making policy. The ordinary courts must follow the principles of
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justice. A much more serious dent in the separation theory was made with the development of independent
statutory commissions to handle and regulate new areas of activities endowed with the triple functions of
legislation, execution and adjudication along with powers of investigation and prosecution.
iii. Administrative procedure Act 1946
There was an insistent demand that a full fledged investigation be carried out in the new trends and
that due safeguards against abuse of powers be devised. As a result of this the US Attorney-General
appointed a committee to review the entire administrative process and to recommend improvements therein.
The committee made its report in 1941, and there were number of recommendations to reduce the chances
of abuse of power, after sometime the most tangible result was the enactment of the Administrative
Procedure Act 1946. The Act lays down minimum procedures to be followed by administrative agencies.
6.
Innovation in existing State Craft
i. Reduction of abuse powers/ discretion
The aim of the doctrine is to guard against tyrannical and arbitrary power of the state. The rationale
underlying the doctrine has been that if all power is concentrated in one and the same organ, there would
arises the danger that it may enact tyrannical laws, execute them in a despotic manner, and interpret them in
an arbitrary fashion without any external check.
ii. Uniformity in Administration procedure
The above enactment has been characterized as representing a compromise between contending ideas. The
one, to provide for greater uniformity and certainty in administrative procedure, and to expand the role of
judiciary in controlling the exercise of administrative powers.
iii. Expansion of jurisdiction of court
On the other side, there were the administrative agencies wishing to retain flexibility and diversity in
the administrative process and certainly they were not in favor of increasing the scope of judicial review. It
has affected changes and extended judicial review keeping in view the needs of flexibility and diversity in
administrative process.
iv. Research in Administrative system and reform
Another innovation in the United States has been the establishment of the Administrative
Conference of the United States which carries on continuous research into the problems of administrative
law and initiates proposals for reform.
Administrative Action
1. Different between judicial and Administrative Action
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There should be differentiation of judicial action and administrative action. Judicial involves application
of regulatory mechanism, but administrative action is summary oriented. Judicial is lengthy process which
follows lengthy procedure, in judicial action there is need of consul or advocate but in administrative action
no need of such councils or advocates. In judicial action there is requirement of court fee and suit valuation,
but administrative does not need such things. Judicial follows principles of natural justice, but
administrative does not. Both systems involve adjudication, and both come up with discussion, both resole
disputes, both are separate but both perform decision making.
2. Classification of Administrative Action
a. Rule making action or Quasi legislation
It is the legislation which is the law-making organ of any state. In most written Constitutions the
law-making power is expressly stated to vest in the legislature. Rule-making action of the administration
partakes all the characteristics which a normal legislative action possesses. Such characteristics may include
generality, prospectively and a behavior pattern based on policy considerations and extends a right or
creates a disability. These characteristics are not without exception. In some cases administrative rule
making action may be particularized, retroactive and based on evidence.
The committee on Minister’ s Power which was appointed in England distinguished between
administrative and quasi-legislative action on the ground that whereas the former is a process of performing
particular acts and the latter is the process of formulating a general rules of conduct without reference to
particular cases.
Administrative rule-making action is generally controlled by the parliament and the courts through
legislature and judicial review.
b. Decision making action—Quasi Judicial
Today the bulk of the decisions which affect a private individual come not form the courts but from
the administrative agencies exercising adjudicatory powers. In some jurisdiction the term quasi judicial is
used to denote administrative adjudicatory or decision making process. Administrative decision making may
be defined as power to perform acts, administrative in character, but requiring incidentally some
characteristic of judicial dispensation.
The Donoughmore Committee on Ministers powers was of the view that a true judicial decision
presupposes a lies between two or more parties and then involves four requisites:
a. Presentation of a case.
b. Ascertainment of question of fact..
c. Ascertainment of question of law.
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d. A decision.
The committee reported that quasi-judicial decision involve the first two determinate through it may
or may not involve the third but never involves the fourth determinate.
There are distinct administrative agencies exercising adjudicatory powers like courts though it is
only the will of the legislature that these are not classifies as courts. However, it does not mean that
administrative decision-making action is required to follow the elaborate judicial procedure. It is sufficient
if, in the absence of any statutory requirement, the action is rendered by following the minimum
requirements of natural justice.
c. Rule application action--- Administrative Action
Administrative action as rule application action; through the distinction between quasi judicial and
administrative action has become blurred, yet it does not mean that there is no distinction between the two.
Administrative action is the residuary action which is neither legislative nor judicial. It is concerned
with the treatment of a particular situation and is devoid of generality. It has no procedural obligation of
collecting evidence and weighting argument. It is based on subjective satisfaction where decision is based
on policy and expediency.
Administrative action may be statutory or may not. The bulk of administrative action is statutory
because a statue or the Constitution gives it a legal force but is some cases it may not non statutory. A
further distillate of administrative action is ministerial action.
3. Judicial Guidance
a. Ridge V Baldwin (1964)
Lord Reid held that the duty to act judicially must arise from the very nature of the function intended
to be performed and it need not be shown to be superadded. And Lord was of the view that if there is power
to decide and determine to the prejudice of a person the duty to act judicially is implicit in the exercise of
such power. So this case give idea for proper execute of judicial action. If any administrative action
willfully or on the base of policy violates the nature of justice, so that decision even reasonable and well
may be null and void because of violation of natural justice. So it can be void and revised.
b. Rex Vs Legislative Committee of Church Assembly (1928)
Lord Heward, read this observation that the duty to act judicially should be an additional
requirement existing independently of the authority to determine questions affecting the rights of the
subjects, sometimes super-added to it.
c. Rex V Electricity Commissioners (1924)
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Duty to act judicially was spelt out in this case. It was held that whenever any body of persons
having legal authority to determine questions affecting the rights of the subjects, and having the duty to act
judicially, acts in excess of its legal authority, they are subject to the controlling jurisdiction of the King
Bench Division.
d. Indira Gandhi V Raj Navain (1975)
Article 329-A clause 4 of Constitution of India was challenged, whether the election of PM and speaker
of National Assembly can be reversed? Under what capacity, whether rule making or judicial reverse that or
not?
4. Administrative Instruction
Administrative instruction is a most efficacious technique for achieving some kind of uniformity in the
administrative discretion, and to regulate in an area which is new and dynamic. Those instructions also give
desired flexibility to the administration without adhering with the technicalities of rule making process.
Administrative instruction may be; specific or general and directory or mandatory. The instructions which
are generally issued not under any statutory authority but under the general power of administration are
considered as directory and hence are unenforceable. Fernandez V State of Mysore, the court held that
Mysore P.W.D Code of instructions are not having the force of law because this is issued under no statuary
authority but in exercise of general administration power. If administrative instructions are construed as
making a representation to the people then any one who acts on such representation, can hold the
administrative agency bound by it on the ground of equitable estoppel.
5. Administrative function
It is stage of implementation. This term is widely used to denote administrative actions of various kinds
and nature like rule making, quasi judicial or administrative. It is generic expression and is difficult to
compartmentalize. Although no clear definition of the term is possible, yet the nature of an administrative
function is determined by looking to its purport, by evaluating its implications for the person against whom
it is taken and by looking at its general background including the wording of the relevant statutory
provisions.
6. Administrative Directions
i. Directions as distinguished from rules:
In addition to rules and other forms of delegated legislation, there is an increasing trend of issuance of
directions or instructions by the administration. Directions are issued for a variety of purpose.
Administrative authorities churn out directions through letters, circular, orders, memoranda, and pamphlets,
public notices, press notes, etc. at times, directions may even be published in the government gazette.
ii. Determination of the nature of Directions:
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Government is continuously engaged in the process of legislation, in the sense of laying down general
norms of public behavior or administrative behavior. As discussed that government legislation may be
classified as either delegated legislation or administration direction. This may, at times, be a complicated
exercise. In doing so at the threshold, an administrative lawyer may be faced with a problem arising from
terminological inexactitude. Expression like code, rules, regulations which are appropriate fro being used in
the area of delegated legislation.
iii. Enforceability of directions:
The basic rule is that a direction is not enforceable in a court of law against either an individual or the
administration. The rule of non enforceability of directions is well established. However the rule of nonenforceability of directions is not immutable and is subject to some exceptions. In some cases, the courts
have enforced direction on certain grounds. IRC (Industrial Regulatory Commission), ITAT (Income tax
appeallet Tribunal), SEC are three Admn which are do both legislation and judicial actions.
Delegated Legislation
1. The Concept, General Rule:
Delegated legislation means that powers of rule making are given with some limitations to the
administrative body. Today in all democratic countries, only a relatively small part of the total legislative
output emanates directly from the legislature, and much more extensive law making is undertaken by the
executive which is known as delegated legislation.
The term delegated legislation is generally given two meanings;
1.
The exercise of a subordinate agency of the legislative power delegated to it by the legislature.
2.
The subsidiary rules themselves which are made by the subordinate agency in pursuance of the
power as delegated to it.
Delegated legislation is defined by Salmond as, “ that which proceeds from any authority other than the
sovereign power and is therefore dependent for its continued existence and validity on some superior or
supreme authority” .
2. The Justification of exceptions/ reasons for growth of Delegated Legislation
The traditional constitutional theory which postulates separation of powers was exposed to an enormous
strain when the legislatures started delegating legislative power to the executive in a big way. Irrespective of
whether the constitution purists approve of it or not, delegation of legislative power has become the need of
the day. The main cases that led to the growth in the volume of delegated legislation are discussed as:
a. Expansion in state craft function
Expansion in state craft function caused for the growth of delegated legislation. Legislation on everwidening frontier of a modern state is not possible without the technique of delegation. It may be correct if
the parliament sits all days in a year and all the 24 hours, it may not be able to give that quantity and quality
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of law which is required for the proper functioning of a modern state. Therefore delegation of rule making
power is compulsive necessity of the modern time.
b. Technical legislation:
Legislation has become highly technical in the present day world. Nature of many acts is technical, it
may be necessary to obtain the assistance of experts in providing for matters of detail. Thus once a
legislature decides to restrict the use of dangerous drugs, it must be left to the medical experts to decide
which drugs should be considered dangerous. It cannot be laid down by legislature itself because the subject
matter is highly technical.
c. Complexity in modern governance:
Legislation has become highly technical in the present day world because of the complexities of
modern governance. Therefore, it is convenient for the legislature to confine itself to policy statements only.
d. Lack of flexibility in conventional legislative process:
Ordinary legislative process suffers from lack of flexibility. A law passed by the Parliament cannot
be amended till its next session. This takes time. It is therefore, in situations which require adjustments
frequently administrative rule making may be the only answer through subordinate legislation. Delegated
legislation requires less formal procedure and can be a good device for flexibility.
e. The concept of participatory legislation:
There is a growing emergence of the idea of direct participation in the making of law by those who
are supposed to be governed by it because indirect participating through their elected representatives has
more often proved to a myth. Therefore, the administrative rule making can be more convenient and
effective way and can provide for this participation.
f. Pre-occupied parliament:
The legislative activity of the State has increased manifold in response to the increase in its functions
and responsibilities. The legislature is preoccupied with more important policy matters and rarely finds time
to discuss matters in detail. Therefore formulates the legislative policy and delegates power to the
administration to make subordinate legislation for the purpose of implementing the policy.
g. Dynamic Blicies.
h. State of Emergency:
In times of emergency, the government may have to take swift action. All the necessary future action
cannot be anticipated in advance and hence provisions cannot be made by the legislature to meet all
unforeseeable contingencies. It is safer to empower the executive to lay down rules in accordance which it
would use its emergency power.
i. Regulation of economic enterprises:
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A legislature is particularly inappropriate to perform the continuance tasks of regulation and
guardianship which the State is required to perform with respect to private trade and business. And
administrative agency must be free to formulate policy within the framework of a broad legislative policy
embodied in the enabling Act.
4. Classification of Delegated Legislation
I. Title Base
1. Rules: exercise of power conferred by any enactment and includes regulations made as
rules under any enactment.
2. Regulations: an instrument by which decisions, orders and acts of the government are
made known to public, but according to administration it means where power is given to fix the date
for the enforcement of an act.
3. Order: order may be specific or general; specific refers to administrative action while the
latter refers to administrative rule making.
4. Bye-laws: rules made by governmental authorities established under legislation.
5. Directions: expression of administrative rule making under the authority of law, or rules
made there under, it is recommendatory or mandatory.
6. Schemes: situation where the law authorizes the administrative agency to lay down a
frame-work within which administrative action is to proceed.
II. Purpose Base
1. Enabling Act: it contains an appointed day clause under which the power is delegated to
the executive to appoint a day for the Act to come into operation.
2. Extension and Application Acts: power may be delegated to extend the operation of the
Act to other territories. Sometimes power may be given to extend the operation of the Act to objects
or persons other than those for which it was originally made.
3. Dispensing and Suspending Acts: power may be delegated to the administrative
authority to make exemptions from all or any provision of the Act in a particular case or class of
cases or territory.
4. Alteration of Acts: the power to modify Acts has mostly been delegated as a sequel to the
power of extension and application of laws. Power to modify has also been given to administrative
authorities in cases which may be described as legislation by reference. Two kinds of alteration
modification and amendment most common example of amendment is the power to change the
schedule of an Act.
5. Taxing Acts: Normally the purpose, incidence and rate of tax must be determined by the
legislature. But it can be delegated to administrative.
6. Supplementary Acts: the power is delegated to the authority to make rules to carry out
the purpose of the act.
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7. Approving and Sanctioning Acts: the power is delegated not to make rules but to
approve the rules framed by other authority.
8. Classifying and Fixing Standards Acts: power is given to the administrative authority to
fix standard of purity, quality or fitness for human consumption.
9. Penalty for Violation Acts: power is delegated to an administrative to prescribe
punishment for the violation of rules.
10. Clarify the Provisions of the Statute Acts: the power is delegated to the administrative
authority to issue interpretations on various provisions.
III. Discretion based
On the basis of discretion the administrative rule making may be classified into subordinate and
contingent or conditional legislation. This classification has been taken from Field V Clark the court held
that Congress cannot delegate its power to make a law, but it can make a law to delegate the power to
determine some factors or state of things upon which the law intends to make its own action depend.
IV. Authority Based
Sometimes the rule making authority delegates to itself or to some subordinate authority a further
power to issue rules, such exercise of rule making power is known as sub-delegated legislation. Such
authorization may be either express or by necessary implicating. If the authority further delegates its lawmaking power to some other authority and retains a general control of a substantial nature over it, there is no
delegation as to attract the doctrine of deglatus non potest delgare.
V. Nature Based
1. Normal Delegation
a. Positive: where the limits of delegation are clearly defined.
b. Negative: power is expressed in negative terms.
2. Exceptional Delegation: Instance of exceptional delegation may be;
a. Power to legislate on matters of principle.
b. Power to amend Acts of Parliament.
c. Power conferring wide discretion.
d. Power to make rules without being challenged in a court of law.
Such exceptional delegation is also known as Henry VIII clause. Under this clause very wide powers
are given to the administrative agencies to make rules including the power to amend and repeal. This type o f
delegation is delegation running riot.
Limitation of Delegated Legislation
In Britain the doctrine of sovereignty of parliament prevails which implies that parliament has
unlimited power to make nay law, and that the courts cannot question a parliamentary law on any ground.
The result is that the parliament can delegate any amount of legislative power to any administrative agency.
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So no restriction exists on the capacity of parliament. The delegation can be left free to draft in any way he
likes to evolve his own policy or standard. But it has been often emphasized that Parliament should not
confer power too broad or general term, it can control the delegation of power by itself.
In USA the courts have power to interpret the Constitution and declare the congressional statute
unconstitutional if it does not conform with their views of Constitution. Thus the court argues being a
delegate of the people cannot further delegate its law making functions to any other agency. The courts
insist that the Congress hold itself declare the policy regarding the subject matter of legislation and only the
power to lay down details to effectuate that policy may be delegated to administration. The test is the test in
the words of Justice Cardozo, is that “ to uphold the delegation there is need to discover the terms of the Act
a standard reasonably clear whereby the discretion must be governed” in the case of Paname Refining Co V
Ryan 293 US 1053. it is known as Hot Oil Case.
In Pakistan & India the question of permissible limits of delegation of legislative power have
become important. The court held that there could be no delegation of legislative power in India beyond
conditional legislation.
1. Judicial Control
i. Delegated Legislation if Ultra vires the Constitution
Delegated legislation may be ultra vires the constitution if the enabling act itself is unconstitutional or
the enabling act is constitution but delegated legislation is unconstitutional. So in the first the delegated
legislation also becomes ultra vires the constitution. In the second the delegated legislation which is ultra
vires the Constitution also must be ultra vires the enabling act because the legislature could not have given
power to act ultra vires the Constitution which is valid argument.
a.
Subordinate Legislation invalid because Enabling Act is unconstitutional: a typical
example where delegated legislation was held ultra vires the constitution because the
enabling act was ultra vires the Constitution in Tan Bug Taim V Collector of Bombay.
b.
Enabling Act is Constitutional but subordinate Legislation is Unconstitutional:
subordinate legislation may be held unconstitutional if it is discriminatory.
ii. Delegated Legislation if Ultra Vires the Enabling Act
Subordinate legislation may be assailed as ultra vires if it encroaches upon the rights of private parties
derived from the common law in the absence of an express authority under the enabling act. In Chester V
Bateson a statute authorized the making of regulations for the public safety and successful prosecution of
the war. It was held that the enabling Act could not have gone so far as to forbid access to courts in such a
case and that so grave an invasion of the rights of the subjects was not intend by legislation, the regulation
was held invalid as being ultra vires the Act.
iii. Reasonability of Delegated Legislation
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Another aspect of substantive ultra vires of delegated legislation is the question of its reasonableness. In
Britain the rule is that while delegated legislation enacted by government departments is not subject to the
test of reasonableness, other delegated legislation may be assailed as being unreasonable. In USA
unreasonableness of a statutory regulation would render it invalid as it would be hid by the due process of
law.
Closely allied to the ground of unreasonableness is the ground of mala-fide or bad faith on the part of
the administration. In Britain the courts have long exercised the right to declare invalid administrative
actions which, while prima facie authorized by statute, are proved to have been taken for ulterior motives.
2. Legislative Control
The fact is that due to the broad delegation of legislative powers and the generalized standards of control
also being broad, the judicial control has shrunk raising the desirability in necessity of parliamentary control
of delegated legislation.
i. Direct General Control: Direct but general control over delegated legislation is exercised through:
a. Debate on the Act which contains delegation.
b. Question and notices by any Member of Parliament.
c. Moving resolutions and notice in the House.
d. Vote on grant.
e. A private member’ s bill seeking modification in the parent Act or debate.
ii. Direct Special Control: This control mechanism is exercised through the technique of laying on the
table of the House rules and regulations framed by the administrative authority. Laying in Pakistan and
India may take various forms:
a. Laying with no further direction. It is simple just inform the house.
b. Laying subject to annulment or laying subject to negative resolution.
c. Laying subject to affirmative resolution. It has two shape
i. that rules shall have no effect unless approved by House.
ii. that the rules shall cease to effect unless approved.
d. Laying in draft subject to negative resolution.
e. Laying in draft subject to an affirmative resolution.
f. Legal consequences of non-compliance with the laying provisions.
iii. Indirect Control: this control is exercised by the parliament through its Committees. In India the
Committee on Subordinate Legislation of Lok Sabha was appointed 1953; its main functions are to
exam:
a. Whether the rules are in accordance with general object of the act.
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b. Whether the rules contain any matter which could properly be dealt by act.
c. Whether it contains imposition of tax.
d. Whether it directly or indirectly bars the jurisdiction of the court.
e. Whether it is retrospective.
f. Whether it involves expeditor from the Consolidate Fund.
g. Whether there has been unjustified delay in its publication.
h. Whether, for any reason, it requires further elucidation.
3. Procedural Control: procedural control mechanism operates in three components:
i. Antenatal publicity: to announce for the public. Antenatal publicity requires by the enabling act
attract the application of S23 of General Clauses Act which are:
a. That the rules be published in draft form in the gazette.
b. That objections and suggestion be invited by a specific date mentioned there.
c. That those objections and suggestion be considered by rule making authority.
American experience shows that antenatal publicity is most beneficial in practice. In Britain there is no
requirement for antecedent publicity or any right to hearing.
ii. Consultation with stake holder or affected persons: in Pakistan and India there is no general law
which provides for prior consultation with affected person before rule and regulations are framed by the
administrative authority. In India provision for prior consultation made in enabling act may be grouped
into five headings:
a. Official consultation with a named body.
b. Consultation with Administrative Boards.
c. Consultation with a statutory board in charge of particular subject.
d. Consultation with the interest persons.
e. Preparation of rules by the affected interests.
iii. Post-natal publicity: it is necessary element in the rule making process because the dictum that
ignorance of law is no excuse is based on the justification that laws are accessible to the public.
The supreme court of India in Harla V State of Rajasthan held that a law cannot be enforced unless
published.
Unless the rule making authority has laid down a date on which the rules shall come into force, the
rules generally come into force on the date of publication.
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Administrative Adjudication
1. The Concept
Normally the function of adjudication upon disputes between two individuals or between the state and
an individual is vested in the court, but it would be wrong to suppose that the courts enjoy a monopoly of
the entire business of adjudication. Side by side with the courts, innumerable administrative bodies have
sprung up on to carry on the function of adjudication in a variety of situations, claims and controversies.
2. Justification / Reason for growth of Administrative Adjudication: the main causes of evolution of
the system of adjudication outside the court are practically the same as have led to the emergence of
delegated legislation.
a. Expansion of government activities: because of socio-economic changes which are taking
place in the country. As for example government is engaging itself progressively more and more
in planning, in providing social service to the people, in controlling condition of employment.
The modern government has come to undertake many functions and regulate many matter which
generate number of issues with the administrative or another citizen and this creates the need of
adjudicate on disputes sometimes between citizen and the government and sometimes between
citizen and citizen. This turn necessity for development of administrative adjudication.
b. Informal adjudication by administration: administrative adjudication is mostly done by
informal process. In a case written representations by the parties to administrative adjudication
were considered sufficient compliance with the principles of natural justice.
c. Cheap dispute resolution: it is proverbial that an ordinary judicial proceeding is tardy, dilatory
as well as expensive and consequently in most of the cases arising in the course of administrative
functioning such a procedure would be complete inadequate. The formality of atmosphere in a
court is not always conductive to the quick disposal of the innumerable problem which the
modern administration generates. Effective implementation of new polices often demands
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speedy, cheap and decentralized determination of a large number of cases which advantages are
offered by the administrative adjudicating.
d. Duty.
e. New stir economic legislation disputes: in all case generated by the operations of the newly
enacted socio-economic legislation of today were to be left to the courts of adjudication, then not
only will it place a huge burden on the judicial machinery clogging it beyond redemption, but it
will also slow down the administrative process because of along delays which usually occur in
the court proceedings. And question of expertise, a judge is a generalist, while many cases
arising out of the modern administrative process need an expert knowledge of particular subject
to which these cases relates.
f. Effort importation and reasonability: another important reason for the new development is
that while the courses are accustomed to deal with cases primarily according to law, the
exigencies of the modern administration often make it incumbent that some types of
controversies be disposed of by applying not law, pure and simple; but by applying
considerations of policy, public interest, expedient or reasonability. Such questions often arise
and these have to be answered not only on the basis of law and fact but also by applying
reasonability.
3. Inherent drawback (problems) of Administrative adjudication
a. Mushroom Courts: administrative agencies with adjudicatory powers have mushroomed. A
large number of parallel bodies adjudicating on the same kind of disputes and giving divers
decision are no exceptions. This complicates the task of administrative law in drawing uniform
principles.
b. Absence of uniformity of procedural law: variety of procedures adopted, as the administrative
agencies are reproducing, so is their procedures. Even the best of the lawyer cannot say with
certainty how he would proceed before a particular agency.
c. Unpredictability: unpredictability of decision, the judicial decision are required to have a
certain degree of predictability. On similar facts, decisions are expected to be the same because
of the doctrine of precedent. Predictability of decision is an essential ingredient of doctrine of
rule of law. In administrative adjudication this essential element is frequently absent.
d. Non-systematic appeals system: an appeal is a definite safeguard against an unfair decision in
the administration of justice. However, no uniform system of appeal has been followed in
administrative adjudication.
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e. Mayer of administrative & judicial powers: in India, except in the case of civil servants, in all
disciplinary proceedings the functions of a prosecutor and the judge are either combined in one
person or in the same department. In such situation bias is generally inevitable.
f. Official bias: in administrative justice official perspective is inherent and can be presumed. In
any disciplinary proceeding, the presumption is of guilty rather than innocent. Official or
departmental bias is one of the most baffling problems of administrative law. At times, bias
arising from strong and sincere conviction as to public policy may operate as a more serious
disqualification than even the pecuniary interest.
g. Plea 53 bargaining: it means the bargaining of a plea of guilty within lesser charges and
punishment. It is very common that a poor employee is bullied by an over bearing superior to
accept the charge against him on promise of lesser punishment will be awarded. It is being
immoral, violate of justice.
h. Lack of participatory decisions & proper publication: in administrative adjudication, though
not always, the decisions are made in a hole and the corner fashion, no one knows from where
the decision comes from. Unlike courts, not all the administrative agencies exercising judicial
power publish their decision. Their decisions, therefore, escape the plea of public criticism. The
absence of this necessary safeguard can cause the quality of administrative justice to suffer.
4. Suggestions for improvement
a. Should contain reason of decisions.
b. Legislative uniformity of procedure.
c. Expansion of jurisdiction of courts.
d. Minimizing exclusionary / finality clauses.
e. Systematization of appellate.
53
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Appeal.
Judicial Control of Administrative Discretion
1. The concept
Discretion is a capacity to choose among different alternatives. Entire criminal law is law of discretion.
There are different methods for granting statutory discretion such as “ as it may deem it, may, if he is
satisfied” all are subjective type. Discretionary powers of the administrative authorities have enormously
increased since the functions of the State have increased and become complex. Why control of
administrative discretion is necessary? Because an administrative should know that discretionary power
does no be unreasonable, there should be certain grounds and standards for use of discretionary power.
Administrative discretion is one which is to be exercised in accordance with policy or expediency. It does
not involve any judicial element. The need of discretion arises because of the necessity to individualize the
exercise of power by the administration; the administration has to apply a vague or indefinite statutory
provision from case to case. There are three possible ways in which exercise of discretion can be made
objective:
a. The laws conferring discretion may itself seek to lay down the elements and standards which
authority must apply in exercising discretion.
b. When legislature fails to lay down standard, the administration can itself lay down standards by
using its powers of delegated legislation.
c. On a lower plane and to some extent administrative directions and norms of practice can be used,
instead of rules, for the purpose of achieving uniformity in discretionary decisions.
2. Review and appellate Jurisdiction
PLD 1974 SC 139, in this case Supreme Court defined the nature and limits the review and appellate
jurisdiction of discretionary power.
3. Grounds of Judicial Review: what are grounds in which court can interfere in the discretionary power.
A court become operative if there is any violation by administration.
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a. Reasonability
Government even in administrative acts is bound in duty to act justly, fairly and reasonably. A
failure in such direction tenders an action invalid in law, such as in case of Presiding Officer V Sadruddin
Ansari ALD 1967 SC 569. And Mohammad Ismail V East Pakistan PLD 1964 SC 475. While reviewing
exercise of administrative powers, courts have also used such language as that the authority should consider
the question fairly and reasonably before taking action. Kishan Chand Arora V Commr. O Police AIR 1961
SC 705. reasonableness provides quite a flexible basis for the courts to interfere, and in other factual
situations requiring reasonable administrative action, the scope of judicial review may be such wide, as has
been stated in such situation “ the scope of review is determined by practical realties and it would be absurd
to suppose that the attitude of the courts towards such words as reasonable grounds in one legislative
context must necessarily be reproduced in every other” .
b. Malafide / improper purpose
Malafide or bad faith means dishonest intention or corrupt motive. Even though it may be difficult to
determine whether or not the authority has exceeded its powers in particular case because the broad terms in
which the statute in question may be conferred power on it, the administrative action may be declared to be
bad if the motivation behind the action is not honest. In the case below PLD 1965 Dac 467 the court held
that for land acquisition for public purpose there must be justification, if there is not justification for
acquisition of any land then it is considered to be malafide. So it is ultra vires exercise of administrative
power. The burden of proving malafide is on the individual making the allegation as the order is regular on
its face and there is presumption in favor of administration that it exercises its power in good faith and for
public benefit.
Improper purpose is if a statute confers power for one proper, it is use for a different purpose would
not be regarded as a valid exercise of the power and the same could be quashed. Improper purpose become
an important ground to control the exercise of administrative powers and thus to control administrative
action.
c. Irrelevant consideration
A power conferred by a statute must be excised on the considerations mentioned in the statute or
relevant to the purpose for which it is conferred. If the authority concerned pays attention to, or takes into
account, circumstances, events or matters wholly irrelevant or extraneous to those mentioned in the statute,
then the administrative action would be ultra vires and should be quashed. Whenever any administrative
authority is given power to pass some order, it should exercise its authority independently by taking into
consideration all relevant circumstances.
The ground of irrelevant consideration gives an additional dimension to the judicial review because
courts assess the relevancy of considerations on which power is exercised with reference to the purpose and
tenor of the Act.
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d. Acting under dictation
A situation of non-application of its mind by the authority concerned arises when it does not
consider the matter itself but exercises its discretion under he dictation of a superior authority. This, in law,
would amount to abdication of power by the authority concerned and would be bad. The Supreme Court
quashed an order of the Cane Commissioner, Bihar, by which he had excluded 99 villages from the area
reserved by him in favor of appellant sugar company. The reason was that the Cane Commissioner had been
dictated by the Chief Minister who had imposed his opinion on him. The court observed that under the
sugarcane law, the power was exercisable by the Cane Commissioner only; therefore he alone should have
exercise the power and could not abdicate his responsibility in favor of the state government or the Chief
Minister. Purtabpore company Ltd V Cane Commissioner of Bihar 1969, 1 SCC 308.
e. Subjectively formulated discretion
There was no statutory discretion for him but he thinks that he had discretion. Whenever any
authority acting in good faith thinking that he has discretionary power to use, but there is no discretionary
power for him to use by statute or any act so it is called that he acted subjectively and this ground is good
reason for reviewing that discretionary power by the court. As in the Case the court revised that
discretionary power which was used by administrative authority PLD 1967 SC 373.
f. Non compliance of procedural requirements
Exercise of discretionary power can be held to be bad because the authority concerned did not
comply with the procedural requirements laid down in the statute, provided that the court holds the
compliance what the procedure to be mandatory. If property is acquired without complying with the
procedure, it would be quashed.
g. Administrative discrimination
The other ground for review of administrative action by the courts that is administrative
discrimination under Article 25 and 15 of respective Constitution of Pakistan and India. The principle is that
every person against arbitrary discrimination whether occasioned by the express terms of the statue or by
their improper application through duty constituted agents. Though the principle is established that
discriminatory administrative action can be challenged on the ground of discrimination.
h. Colorable exercise of power
The courts use the idiom “ colorable exercise of power” to denounce an abuse of discretion.
Colorable exercise means that under the “ color” or “ guise” of power conferred for one purpose the
authority is seeking to achieve something else which it is not authorized to do under the law in question.
The colorable exercise of power is used in the sense of using a power for a purpose not authorized by act
conferring the power on the authority concerned. It is also used as malafide action.
Judicial Review of Administrative Action
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1. The concept
General principles of law are applicable to judicial review, in respect of executive acts. Judicial review
has developed as principle like the Common law itself, gradually from case to case, due to the pressure of
particular situations the lessons from experience, the guidance of ideal and general principles, and the
influence of legislation. It has developed by the Courts which have the power to provide judge made
remedies where the statues are silent. The function of judicial reviews to act as a check against excess of
power in derogation of private right.
2. Grounds of Judicial Review
a. Doctrine of ultra Vires or Jurisdiction Principles
Study of judicial control revolves around the question of how far the courts can go in examine the
decisions of administrative tribunal in proceedings of review. The limits of judicial control are however, set
by the distinction between review and appeal. Where a court has jurisdiction to entertain an application, it
does not lose its jurisdiction by coming to a wrong conclusion. It has been repeatedly held the superior
courts in the common law countries that a court having jurisdiction to decide a matter has jurisdiction to
dice it rightly or wrongly and that the superior courts have no jurisdiction to interfere with its decision.
b. Review of finding of fact and law
A distinction between questions of law and a question of fact has to be drawn in this context. There
is often no difficulty in making such distinction. The courts have established their authority to review facts
if they are collateral and go to very basis of jurisdiction of the tribunals. This has become an exception to
the general unreviewablity of question of fact. This is known in American jurisprudence as jurisdictional
fact and in English law as the Collateral Fact.
The error of law apparent on the face of the record as a principle of judicial control is not without its
problems as a line has to be drawn between ordinary error of law and error of law apparent on the face of
record.
c. Principles of natural justice
The principles of natural justice occupy a unique place in administrative law. They provide the
standards of administrative justice; they focus attention on the import question; how far is it right for the
courts of law to try to impart their own standards of justice to the administration. In Pakistan the law is that
principles of natural justice are applicable to proceedings of all authorities, judicial, quasi judicial or
administrative, unless their application is excluded by the statutes under which the authority acts.
i. Audi- alteram (no one can be condemned unheard)
This principle to hear both sides of the question, goes back several centuries and has been applied in
a variety of circumstances; it may be regarded as one of the foundations of English justice. It is said that this
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principle is upheld in Magna Cara and Lord Coke subscribed to that view. The rule of Audi alteram partum
is not confined to proceeding before courts, but extends to all proceedings, including the administrative
proceeding which affect the person or property or other right of the parties concerned in the disputes.
ii. Rule against Bias
The maxim of nemo ju dex in causa sua, a judge should not adjudicate upon a cause in which he is
interest, was recognized in English law even in the formative stage of common law, and now constitutes a
very import principle of judicial control of administrative action. Where the mind of judge is influenced in
favor of one party or against another party, it is described a personal bias.
Types of Bias
i. Professional Bias: it is known as official bias, there may be no personal ill-will, but there may
be evidence of an abnormal desire to uphold a particular departmental policy which would
prevent an impartial adjudication of the dispute.
ii. Personal relation: a judge may be actuated by an attitude of hostility or favoritism towards one
party or the other. The likelihood of bias because of personal attitudes and relationship.
iii. Pecuniary: pecuniary interest however slight disqualifies an adjudicator. The test is not whether
a decision has been actually affected by such interest but whether a litigant could apprehend that a bias
attributable to a judge might have operated against him.
j. Remedies: the remedies provided for redressing the wrong done to the citizen by the actions of
the administrator can be divided into two;
i. Public law remedies: they are as follow
a. Generally: it is derived their authority from the constitutional provision.
b. Certiorari and prohibition: writ of prohibition prohibits a person from doing something in excess
of his authority and writ of certiorari has the effect of declaring that something done by him is
without lawful authority and of no legal effect.
c. Mandamus: writ of mandamus is a judicial remedy issued in the form of an order or direction
from the SC or HC to any constitutional, statutory or non-statuary agency or body to do some
specified act which the agency or body is obliged to do under the law and which is in the nature
of a public duty or a statutory duty.
ii. Private law remedies: they are as follow:
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a. Action for damages: it is used against the local authority or public corporations, but not against the
crown.
b. Injunctions: it has been as wide as prohibition in its function in English law. It is judicial process by
which one who has invaded or is threaten to invade the rights, legal or equitable of another is
retained from continuing or commencing such wrongful act.
c. Declarations: it signifies a judicial person entitled to any legal character, or to any property, may
institute a suit against nay person denying or interest to deny, him title to such character or right and
the court may in its discretion a=make therein a declaration that he is so entitled.
Conveyancing & Pleading
Prepared by: Mohammad Ismail
Conveyancing
Generally it is known as deed, it is taken from convey. Transfer of right from one person to another.
And knowledge of transferring the rights from one person to another is called Conveyancing. The below
things possible in right through the Conveyancing (means when the Conveyancing is written the below
things exist):
1. Create the right.
2. Extinguish right (define rights)
3. Transfer the right.
4. Divide the right.
The instrument (stamp) which is used in it is called conveyance. This has been developed through
the practice. No enacted law is there.
In England it is know as Indenture (Deed) document. In deed there might be one side deed, which is
known as Pol Deed such as latter of attorney.
Elements
1. It should be so worded that no ambiguity would be there. Every person should know it.
2. Intention of the parties must be conveyed.
3. Perfect in eyes of law- legal.
Division of Conveyancing (Parts of Deed)
Whenever we write a deed it is divided into three parts:
1. Non operative parts.
2. Operative Parts, such as rent, lease, mortgage.
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3. Formal Parts, such as signature, registration, stamp, etc.
1. Non Operative Parts
i.
Description of deed: in the top with capital letter and name is given to the deed. Such as SALE
DEED, RENT DEED, LEASE DEED, etc. the top is not enough we have to go in detail of the
deed.
ii.
Date of deed: it is written in running English not in figures. (This sale deed is being written on
twenty seven day of September, nineteen ninety eight). Normally it is the date of executation,
there are certain deeds which will be executed afterward such as will deed. If there is no date
then the date of registration is considered.
iii.
Parties of the deed: the parties of the deed must be described in sufficient detail that might be
easy of identification such as name, father name, caste, age, resident, profession, NIC. (Between
Moh Ismail Shahid caste Arian, age twenty five, resident of H: 548, St: 46, G10/4, student
of Faculty of Shariah and law IIUI, NIC: 2256322456249524 [Hereinafter called “ the
seller” ]. And Sayed Zakrai, caste Hashimi, age: twenty seven Y, resident of Room:57,
Hostel:4, New Campus, H:10, NIC: 5213, [Hereinafter called “ the buyer” ] )
Parties:
1. Companies: name, having registration, registered office. Such as (between noor sugar mill
having registration no: 27658, which has registered office located in Main sadder Road
Rawalpindi [Hereinafter called “ the seller” ] and Ismail Shahid, caste Arian, age: 25,
residing in G10/3, NIC [Hereinafter called “ the buyer” ])
2. Minor: minor cannot contract, if need to sale or buy property then court will appoint a
guardian such in the deed the following description should be mentioned; name of guardian,
age, resident, etc. ( Rashid, age 12, student of class 6th of Alpha Public School, resident of
Barako, Rawalpindi a minor, acting through a guardian appointed (proposal guardian)
by Rawalpindi District Court, Muhamamd Ismail Shahid, age:25, residing in Barako
Rawalpindi, age: 24, NIC:254564 [Hereinafter called “ the seller” ] And.………)
iv.
Recital: it explains the relationship of parties, it means to bring the parties together, it starts with
(WHERE AS the buyer is agreed to buy, or to sell, or to rent, WHERE AS the seller is
agreed to sell 10 Marla of land located in G11/3, St: 45, H: 562 by the price of 40 lak
rupees. Or WHERE AS the owner of the house is agreed to rent his house located in G10/4,
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St:46, H:420, for the period for one year, for the price of 40000 per month which total
amount of one year is 480000/ rupees)
2. Operative Parts
1. Testatum or premises: after the recitals, it starts with (Now this deed witnesses) this part give
effect tot the intention of the parties. (Now this deed witnesses that seller has received an amount of
Rupees 60000/ for selling the plot and has absolutely transferred the plot the buyer. Or has rented the
house, or has leased the house, etc).
2. Habendum: purpose to define the intention or interest of parties. If there is limitation in that it is
mentioned here. Such as duration of rent. If there are any taxes in the property, it is also mentioned here.
(The buyer will pay all outstanding dues of electricity, gas, etc)
3. Exceptions & Reservations: anything which is excepted so it should be mentioned here. (The ten
trees which are located in the yard or backside are not part of the deed) reservation of passage of water
or animal or road, etc.
4. Covenants, terms & Conditions: (The party will get the property registered by his name and if
not happened then he would be responsible) (if rent is not paid properly there will be fine of 10%)
(Sub rent is not allowed).
3. Formal Parts
1. Testatum: testifies that both the parties have signed the deed. It starts with (IN WITNESS
WHERE OF the parties for said deed namely buyer and seller on this date have signed (or put their
hands) on this deed in the presence of two witnesses)
2. Signature & Attestation: Minimum two is the requirement of attestation. If the document consists
more than one page the parties and witnesses have to sign in every page of that deed.
3. Parcels & Description of the Property: Parcel means additional, to attach any other document such
as power of attorney, any form, any document of the property should be written in the deed.
Additional Info about the deed
1. Execution: signing and giving consent by parties if document needs, if by law, it should be
attested for execution. It also means delivery; document must be presented at the time of executation and
also include reading the document.
2. Attestation: S.3 of TOP explains attestation; signing of witnesses in front of parties. And signing
of parties in front of witnesses. Two witnesses are generally sufficient. Documents which are required by
law should be executed, such as bond, gift of immovable property, and mortgage.
3. Registration: if the law does not require registration, the document is complete as soon as it is
written. But if required it must be represented to registrar. S.17 of Registration Act explains that documents.
There are certain documents which must be compulsory registered such as gift of immovable property, any
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instrument which creates, declares, limits or extinguishes, assigns in future or at present any right, any title
or any interest in the property of the value of rupees of one hundred or more, any acknowledgment of
payment received in respect of value, from year to year lease of any immovable property.
4. Time of Registration: S.23 of Registration Act leads us. Generally four months have been given
for registration. The registration may condue the delay by levying fine not exceeding ten times of the
amount of registration fee. But for will he can register any time he likes.
5. Place of Registration: any where, where the major portion of property is situated. But it is not
mandatory. All property can be registered in one place.
6. Who may present Registration: party in whose favor the right is created, representative or
authorized agent.
7. Effect of Registration: it will be authenticated record for future litigation. Documentary evidence
excludes oral evidence.
8. Delivery: after the document should be delivered to the person to whose favor right is created.
9. Stamp duty: appropriate value of stamp is needs which is in Stamp Act.
SALE DEED
This Sale Deed is being written on twenty seven day of September two thousand ten, between Sayed
Zakria S/o Sayed Shamsudin, caste Hashimi, age: 25, student of FSL, IIUI, resident of house no : 548,
St:46, G10/4, Islamabad, NIC: 454132-553-3251 [Hereinafter called “ the seller” ]. And Mohammad Ismail
Shahid S/o Abdul Hamid, caste Arian, age: 26, residing in H: 54, St: 53, Phaze 3, Hayatabad, Peshawar,
NIC: 65475-351-12 [Hereinafter called “ the buyer” ]
WHERE AS the seller is selling a plot which is located in St: 21, No: 96, G11/3, 10 Marlas, Corner
plot, by the price of 80 lak rupees, through power of attorney dated 10 January 2010, registered under
Registration no :452, book 5, volume II, in District Court Rawalpindi which he is the absolute owner of the
above mentioned plot.
NOW THIS DEED WITNESSES that the seller has received all the amount of 80 Lak rupees for
selling the above mentioned plot and has absolutely transferred the plot to the buyer.
The plot is free from all encumbrances. The buyer has to pay all outstanding dues of electricity and
gas.
The buyer will get the plot registered by his name and if not happened he will be responsible for the
consequences of non registration.
IN WITNESS WHERE OF the parties for said namely the seller and the buyer on this date have put
their hands on this deed in the presences of two witnesses.
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Seller: Sayed Zakrai Hashimi
Buyer: Mohammad Ismail Shahid
1. Witness
Muhamamd Ramzan Qosoori
H: 458, St: 62, Kamran Block, Lahore.
2. Witness
Qasim Mahmood
H: 95, St: 752, Iqbal Town, Karim Block, Lahore.
RENT DEED
This Rent Deed is being written on twenty seven day of September two thousand ten, between Sayed
Zakria S/o Sayed Shamsudin, caste Hashimi, age: 25, student of FSL, IIUI, resident of house no : 548,
St:46, G10/4, Islamabad, NIC: 454132-553-3251 [Hereinafter called “ the owner” ]. And Mohammad
Ismail Shahid S/o Abdul Hamid, caste Arian, age: 26, residing in H: 54, St: 53, Phaze 3, Hayatabad,
Peshawar, NIC: 65475-351-12 [Hereinafter called “ the tenant” ]
WHERE AS the owner is giving on rent a plot situated in H: 96, St: 21, E7/3, 10 Marlas, corner plot,
for the price of 30000(thirty thousand rupees) per month, for the period of one years which the total amount
of one year is 3 lak and sixty thousand rupees.
NOW THIS DEED WITNESSES that the owner has received amount of 1 Lak and twenty thousand
rupees for the rent of three months in advance for renting the above mentioned plot and absolutely has
transferred the plot to the tenant.
The plot is free from all encumbrances. The owner has to pay all the outstanding dues of electricity
and gas. The tenant is not allowed to sub, lease or to keep animals in the house. The tenant has to pay the
remaining the rent money at the 3rd of every month and if late 10% will be added. The tenant must be
careful about the cleanness of the house. The house is not allowed to be used by bachelors just family living
is allowed. Painting or any other damages are on the owner of the house. After one year new agreement will
be written. Both the parties have to give notice before one month for leaving the house.
IN WITNESS WHERE OF the parties for said namely the owner and the tenant on this date, have
put their hands on this deed in the presences of two witnesses.
Seller: Sayed Zakrai Hashimi
Buyer: Mohammad Ismail Shahid
1. Witness
Muhamamd Ramzan Qosoori
H: 458, St: 62, Kamran Block, Lahore.
2. Witness
Qasim Mahmood, H: 95, St: 752, Iqbal Town, Karim Block, Lahore.
Power of Attorney
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This is poll deed, one side deed, and single person. It requires authentication (verification by the
court).
Power of Attorney Act 1882: this is an act which guides for the writing of power of attorney deed.
Power of attorney authority of given by one person to more or vice verse to act on his behalf to carry
out any legal transaction. It is delegation of authority in writing. The person who gives is doneer and to
whom is given is donee or called attorney.
The appointment of attorney may be for some special job or specific work, it is called special power
of attorney, such as selling, giving rent, etc. if it is for general purpose it is called General Power of
attorney.
A person who is competent to contract can make power of attorney; no legal disability should be
there. It can be executed by or in favor of two or more persons.
Attorney of donee is in accordance with instruction of doneer he is legally covered. He cannot go
beyond of what has been authorized to him. S.2 of this act explains the power of doneer. There is an
indemnity clause in the deed. It explains that what ever he does is as if I do it. (All acts, deeds, and things
done lawfully, done by the said attorney shall be construed act, deeds, things done by me. And I
undertake to ratify and conform the same as if personally done by me)
GENERAL POWER OF ATTORNEY
This power of attorney is being written on twenty first of October two thousand then that I
Muhammad Ismail Shahid S/o Abdul Hamid , cast Arian, age: 27, residing in H: 567, Azam Garden, Abbas
Block, Lahore, NIC : 42142-52137-823, hereby constituent and appoint Sayed Zakria, caste Hashimi, age:
30, residing in room:57, hostel 4, New Campus, H 10, Islamabad, NIC:54226-62114-2222, as my attorney
in my name and on my behalf to do all or any of the acts said hereafter mentioned:
1. To collect the rent of my house which is situated in H:53, St:565, G11/3.
2. To sell my house which is mentioned above on any cost which is according to the market price.
3. To buy a land for me in PWD, Islamabad.
4. To present in the court on my behalf.
5. To sign and verify plaints, written statements, petitions of claims and objections,
6. To appoint any advocate at the time of any dispute in civil cases.
7. To compromise, compound or withdraw cases, to confess judgments and to refer case to
arbitration.
8. To file and receive the bank statements.
9. To realize debts due to me.
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10. To detrain the crops of my tenant for arrears of rent.
11. To apply for the inspection of and to inspect judicial record.
I hereby agree that all acts, deeds, and things done lawfully by the said attorney shall be construed
acts, deeds and things done by me. And I undertake to ratify and conform the same as if personally done by
me.
I witness and hereby set my hand to his deed on this date.
Mohammad Ismail Shahid
SPECIAL POWER OF ATTORNEY
This power of attorney is being written on twenty first of October two thousand then that I
Muhammad Ismail Shahid S/o Abdul Hamid , cast Arian, age: 27, residing in H: 567, Azam Garden, Abbas
Block, Lahore, NIC : 42142-52137-823, hereby constituent and appoint Sayed Zakria, caste Hashimi, age:
30, residing in room:57, hostel 4, New Campus, H 10, Islamabad, NIC:54226-62114-2222, as my attorney
in my name and on my behalf to do all or any of the acts said hereafter mentioned;
To collect the rent of my house situated in block H, house: 54, Defence, Lahore and to rent the house
to any other person as well.
Provided that he will deposit all amount on my account which is in HBL, No: 5611212442121, on
three months basses and render the account.
I hereby agree that all acts, deeds, and things done lawfully by the said attorney shall be construed
acts, deeds and things done by me. And I undertake to ratify and conform the same as if personally done by
me.
I witness and hereby set my hand to his deed on this date.
Partnership Deed
Partnership is mutual relationship between two parties; individually they are partners and
collectively firm.
Elements which must be mentioned in the deed are: agreement, management, distribution of profit,
liabilities, duration, responsibilities, bank account, principal place, how to be dissolved, registration, no
legal entity, account, render or use of account.
PARTNERSHIP DEED
This partnership deed is made on the first day of Feb two thousand ten, between Mohammad Ismail
Shahid S/o Abdul Hamid, caste Aria, age: 25, resident of G11/3, H: 646, St: 65, Islamabad NIC:5642312 of
the first part, and Sayed Zakria S/o Sayed Shamsudin, caste: Hashimi, age:27, residing in room 57, hostel 4,
New Campus, IIU, H10, Islamabad, NIC:621485214-52114 of the second part (each of them hereinafter
called “ the partner” )
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WHERE AS both the parties agreed that they become the partner for a firm of Cigarette Shop which
is located in G 10 Markez, Abbas Market, Shop: 5, upon the following terms:
1. The capital of the firm shall be Rs. 50000/ rupees to be contributed by the partners equally.
2. The business to be carried for the period of five years from the date of executation of the deed.
3. The name of the firm shall be Ajmal Cigarette and Pan House.
4. The duty of Zakria is to bring Cigarette and Pan or any other things which are needed for the
shop.
5. The profit must be distributed equally.
6. The profit should be calculated after deduction of all expenses of the shop.
7. The profit must be calculated on 4th of every month.
8. To make an account for the firm to put the capital and daily income of the shop in that in HBL.
9. Zakria is authorized to use the account according to the need of the firm.
10. Zakria cannot buy any thing for shop more than 10000/rupees.
11. No new partner can be admitted within two years.
12. Any partner who wants to retire must send notification before one month of his retirement.
13. If the firm is to be dissolved all the property of the firm must be liquated arbitrarily.
14. The firm must be opened for public from 9:00 am to 10:00 p.m.
15. One person can be taken for help as a labour for the firm.
16. His salary to be paid from the profit.
17. If there is any contract by any partner in account of the firm it would be held that both the
partners are liable for that.
18. The death of any partner shall not have the effect of dissolving the partnership.
19. The firm shall, upon dissolution be wound up and assets and liabilities dealt with in accordance
with the provision of Partnership Act 1932.
20. Any dispute or difference which may arise between the partners regard the profit, losses or
dissolution shall be referred to two arbitrators, one to be nominated by each of the party, and in
case of difference of opinion between them, by the umpire selected by them.
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IN WITNESS WHERE OF the parties for the said deed on this date have signed on this deed on the
presence of two witnesses.
Sayed Zakrai Hashimi
Mohammad Ismail Shahid
1. Witness
Muhamamd Ramzan Qosoori
H: 458, St: 62, Kamran Block, Lahore.
2. Witness
Qasim Mahmood: H: 95, St: 752, Iqbal Town, Karim Block, Lahore.
GIFT DEED54
This Gift Deed is being written on twenty seven day of September two thousand ten, between Sayed
Zakria S/o Sayed Shamsudin, caste Hashimi, age: 25, student of FSL, IIUI, resident of house no : 548,
St:46, G10/4, Islamabad, NIC: 454132-553-3251 [Hereinafter called “ the doneer” ]. And Mohammad
Ismail Shahid S/o Abdul Hamid, caste Arian, age: 26, residing in H: 54, St: 53, Phaze 3, Hayatabad,
Peshawar, NIC: 65475-351-12 [Hereinafter called “ the donee” ]
WHERE AS the doneer for his love and affection freely and voluntarily transfer a plot which he is
the absolute owner of that property located in House: 35, St: 12, G11/4, Corner plot, 10 Marla to the donee.
NOW THIS DEED WITNESSES that the doneer has transferred the above mentioned plot to the
donee. The plot is free from all encumbrances. The donee has to pay the outstanding dues of electricity for
three months.
IN WINTNESS WHERE OF the parties for the said namely the doneer and donee on this date have
put their hands on this deed in the presence of two witnesses. And donee has accepted the gift.
The Doneer: Sayed Zakrai Hashimi
The Donee: Mohammad Ismail Shahid
1. Witness
Muhamamd Ramzan Qosoori
H: 458, St: 62, Kamran Block, Lahore.
2. Witness
Qasim Mahmood
H: 95, St: 752, Iqbal Town, Karim Block, Lahore.
MORTGAGE DEED55
54
. Basic information regarding gift deed can be studied from note of Transfer of Property, Chapter of Gift.
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This Mortgage Deed is being written on twenty seven day of September two thousand ten, between
Sayed Zakria S/o Sayed Shamsudin, caste Hashimi, age: 25, student of FSL, IIUI, resident of house no :
548, St:46, G10/4, Islamabad, NIC: 454132-553-3251 [Hereinafter called “ the Mortgagor” ]. And
Mohammad Ismail Shahid S/o Abdul Hamid, caste Arian, age: 26, residing in H: 54, St: 53, Phaze 3,
Hayatabad, Peshawar, NIC: 65475-351-12 [Hereinafter called “ the Mortgagee” ]
WHERE AS the Mortgagor is taking loan of 5 lak rupees from the mortgagee, and for security of
that loan he transfers the interest of his property which is located in St: 21, Plot No: 96, F10/2, Corner plot,
for the period of two years to the mortgagee.
NOW THIS DEED WITNESSES that in pursuance of the said agreement and consideration of 5 lak
rupees, the mortgagor does herby agree with the mortgagee that the mortgagor will on twenty seven
September two thousand eleven, pay the mortgagee a sum of rupees of five lak rupees. The mortgagor has
to pay 5 % annual interest on the loan. If the interest or loan money remains unpaid from due date additional
interest of 10 % will be added till it is paid totally. For the security of repayment of said load with interest,
the mortgagor herby mortgages by the way of simple mortgage to the said mortgagee, the property which is
mentioned above.
IN WITNESS WHERE OF the parties for the said namely the Mortgagor and Mortgagee on this date
put their hands on this deed in the presence of two witnesses.
The Mortgagor: Sayed Zakrai Hashimi
The Mortgagee: Mohammad Ismail Shahid
1. Witness
Muhamamd Ramzan Qosoori
H: 458, St: 62, Kamran Block, Lahore.
2. Witness
Qasim Mahmood H: 95, St: 752, Iqbal Town, Karim Block, Lahore.
Rectification Deed
It means correction, if any mistake which is in deed and it has to be rectified. The first deed becomes
principal deed and referring to that.
RECTIFICATOIN DEED
This Deed of rectification is being written on twenty seven day of September two thousand ten,
between Sayed Zakria S/o Sayed Shamsudin, caste Hashimi, age: 25, student of FSL, IIUI, resident of house
no : 548, St:46, G10/4, Islamabad, NIC: 454132-553-3251 [Hereinafter called “ the Seller” ]. And
55
. Basic information regarding mortgage deed can be studied from note of Transfer of Property, Chapter of
mortgage.
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Mohammad Ismail Shahid S/o Abdul Hamid, caste Arian, age: 26, residing in H: 54, St: 53, Phaze 3,
Hayatabad, Peshawar, NIC: 65475-351-12 [Hereinafter called “ the buyer” ]
WHERE AS by a deed of sale made on nineteenth September two thousand ten, between the same
parties, the seller has transferred the plot to the buyer, and registered the previous deed under registrar of
District Court Islamabad (Hereinafter called the “ principal deed” )
WHERE AS certain mistakes have accidentally occurred in the principal deed which the parties are
now agreed to rectify in the manner hereafter mentioned.
NOW THIS DEED WITNESSES that the principal deed shall be rectified and corrected in the
manner namely;
1. For the word Noor Elah it is Ihsanullah.
2. Plot No: 450 in second Para, it is 452.
3. in line 3 for plot D12 read E12.
That as rectified and corrected the principal deed shall remain in full force and effect.
IN WITNESS WHERE OF the parties for the said namely the seller and buyer on this date put their
hands on this deed in the presence of two witnesses.
Sayed Zakrai Hashimi
Mohammad Ismail Shahid
1. Witness
2. Witness
CANCELLATION DEED
This deed of cancellation is written on second November two thousand ten, that I Muhammad Ismail
Shahid s/o Abdul Hamid, cast: Ariya, age: 25, student of FSL, IIUI, resident of house no: 548, St: 46,
G10/4, Islamabad, NIC: 454132-553-3251 (Hereinafter called “ executant” )
WHERE AS the executant has executed a power of attorney in favor of Sayed Zakria S/o Sayed
Shamsudin, caste Hashimi, age: 25, student of FSL, IIUI, resident of house no : 548, St:46, G10/4,
Islamabad, NIC: 454132-553-325, which is registered with registrar or Peshawar district court under
Registration No:54222, Book 2, Volume VIII.
WHERE AS the executant decided to cancel the power of attorney granted by the sub deed.
NOW THIS DEED OF CANCELLATION WITNESSES that executant does herby revoke and
cancel the power given by the above deed and it is herby declare that the deed shall be void and unaffected
from the date of the execution of this deed.
IN WINTNESS WHERE BY the executant above mentioned set his hand to this deed.
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PLEADING
S. 26, Order 6, 7, 8 of CPC deal with the subject of pleading. Plead means to address the court by the
advocate of the both parties.
Pleading: a plaint and written statement containing in concise form in material facts on which the party
pleading relies for their claim or defence. As general there are two pleading: plaint and written statement.
1. Plaint: is a statement of claim, in which the plaintiff sets out his cause of action with all necessary
details.
2. Written Statement: is a defense, in which the defendant gives reply to the plaint. He can make new
fact and can raise the legal objection.
There is no pleading subsequent to the WS of the defendant other than by way of claim of set of (to
reduce) the burden can be presented except by leave of the court. Order 8/R9. That should be additional
written statement. And if plaintiff wants to answer then that is not a plaint that is WS. In CPC pleading only
means plaint and WS.
Golden Rules of pleading
1. Every pleading must state fact not law- facta probenda not facta probentia.
2. It must state all the material facts.
3. It must state only the facts on which the party pleading relies and not the evidence by which they are
to be proved.
4. It should state such facts concisely, with precession and certainty.
Material Facts : are those facts which are required to plead before the court or relevant to the case. Those
facts which are required to be the part of the pleading. Or facts which are required to establish the claim or
defense.
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Test to establish the material facts? Through the experience. O6/R6: there are some exceptions not to
write and cannot be challenged:
1. condition, precedent (notice to the defendant)
2. Legal presumption, such as map.
3. Stamp of the courts.
4. Appointments, constitutional appointments.
Signature: if there are several plaintiffs, one can sign on behalf of the others. There is no bar to sign every
body on that. Fore being plaintiff signature is not mandatory. Signing also means thumb impression and
stamp of any office.
Verification: of the contents of the plaint. Order 6/R 15 of CPC explains that verification can be by any
person of party, all can certify or anybody who acquainted with the content of the plaint. Verification will
fix the responsibility for contents. False verification is an offense under PPC S.191 and seven years
imprisonment is punishment of that. The verification must be in stamp paper but in Supreme Court
verification is not necessary, however the court may require submitting verification in stamp paper.
Pleading by corporation: any body detained can verify the pleading such as attorney general, chief
executive.
Generally if there is any defect in signature and verification the plaint is not rejected, because these
are technical bases and plaint is not rejected for technical bases.
Framing of a Suit (Writing of the Plaint)
First we have to know cause of action. Joinder of Plaintiff may be possible; if claim is conflicting
then they can not be joined. There are three parts of a plaint:
1. Heading & Title: every plaint must be addressed to the court which is going to be initiated (In the court
of) it is in the head of the plaint because of this it heading. Name of judge is not important. Where the court
has various jurisdictions, the jurisdiction of which he wants to address may be written (In the Lahore High
Court, Rawalpindi Bench, Company jurisdiction/ordinary/civil/criminal jurisdiction) then suit number
has to be mentioned normally it is month wise such as Suit No: 2564/ November 2010.
Parties: the name of plaintiff first then followed by defendant. O7/R1. The parties should sufficiently
described as in Conveyancing. And also if plaintiffs are more than one it is written (and others). If name is
written wrongly so he received and come to court, his defect is overed. The suit is not against name, it is
against the person.
If several plaintiffs or defendants for them serial number must be written on that. If he wants to write
in order that is no problem otherwise it is immaterial.
Certain defendant against whom no relief is required is called Performa Defendants they have to
come at the end.
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Several sets of plaintiff and several sets of defendant then it is written as plaintiff of the first part and
defendant of the second part.
Minors as the plaintiff: his legal capacity is unable to contract. The person who files on behalf of minor is
next friend. And the person who defend minor is guardian. Guardian at litem: guardian in a specific case.
(Zahid S/o Rahim, age: 15, students of class seven, resident of, a minor by Muhamamd Ismail s/o
Abdul hamid, age: 25, resident, NIC, next friend (Plaintiff).
Date of presentation and institution: the admition may be after hearing and he may discuss with the plaintiff.
The court may not be admitting the case. The date of admition may be detect from the date of presentation.
2. Body: cause title such as (suit for declaration, specific performance, breach of contract, correction of
name, etc) then (Respectly shewth, the above plaintiff submit the plaint) then facts are mentioned in
paragraph vise, every paragraph one face. Facts are written in third form and it use such as (the defendant
breach the contract, or the plaintiff suffered harm, etc).
Formal part in the body:
1. When, where the cause of action arose?
2. Jurisdiction, once has to write fact of jurisdiction such as (as the defendant residing in
Rawalpindi, hence the court has jurisdiction. Or the cause of action happened in
Rawalpindi, hence the court has jurisdiction)
3. Valuation: for jurisdiction and court fee purpose.
4. Limitation: if any limitation which is going to be waived off must be written in the plaint. (the
plaintiff was admitted in hospital for three years)
3. Relief Claimed: it is part of the plaint. What ever relief is claimed should be mentioned specifically.
Because relief sought by plaintiff cannot be supplemented with oral prayer, nor can a court provide which
has not been prayed. One can pray more than one relief in a plaint even cost of plaint can be prayed
specifically in the plaint such as (honorable court is prayed to award the cost as well) then signature of
both plaintiff and advocate or pleader.
Verification: it is verification of the content, can be by parties and any other person who has interest in the
plaint. (It is verified that the contents mentioned above are correct) then date of the execution of the
plaint.
Plaint 1

Firm: Karim Din Export.

Nature of service: Accountant.
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
Service on contract for two years weft 1 January 2009.

Salary Rs. 10,000/ per month.

Dismissed without assigning any reason on 30 September 2010.

Write a plaint
In the court of civil judge – Rawalpindi
Suit No: 1256/A, Dated 11/12/2010
Mohammad Ismail S/o Abdul Hamid, caste: Ariya, age: 25, resident of St: 46, H: 548, G10/4, Islamabad
(Plaintiff)
Versus
Karim Din Export Company, located in Block G, shop; 10, Sadar Road, Raja bazaar, Rawalpindi
(Defendant)
Suit for Specific performance of the contract or (wrongful dismissal)
Respectly shewth; the above plaintiff submit the plaint as under:
1. That on the 1st January 2009, the plaintiff contracted with the defendant for service of account
with the salary of Rs. 10000/ per month for two years.
2.
That the plaintiff performing very well and ability and no complain was against him during the
performance.
3. That the defendant without assigning any reason before expiry of the date dismissed the plaintiff
from his service.
4. That the cause of action arose against the defendant in 30 September 2010.
5. That the contract and breach of that happened in Rawalpindi hence the respected court of civil
judge has jurisdiction to try the suit.
6. That the value of the subject-matter of suit for the purpose of court-fee and jurisdiction is
Rs.30000 rupees.
7. That the court fee has been paid by the plaintiff.
It is therefore respectfully prayed that the decree for specific performance or (for recovery of rupees 30000)
be awarded to the plaintiff against the defendant with the cost of the suit.
Rawalpindi; dated: 11/12/2010
Muhamamd Ismail (Plaintiff)
Through
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Mr. Nazir Ahmad Khan Advocate
Verification
Verified on oath at Rawalpindi on 11 th December 2010 that the contents of pars, 1 to 7 are true
to the best of my knowledge.
Mohammad Ismail Shahid (Plaintiff)
Plaint 2
In the Court of Civil Judge Rawalpindi
Muhamamd Ismail Shahid S/o Abdul Hamid, caste Ariya, age 25, resident of H: 548, St: 46, G10/4
Islamabad (Plaintiff)
Versus
Sayed Zakria, caste Hashimi, age 27, resident of Saddar Road, Raja Bazar, Rawilpindi (Defendant)
Suit No: 5689 of 14/12/2010
Suit for recovery of 90000 as breach of contract
Respectfully: the above plaintiff states as follow:
1. That the defendant contracted plaintiff for a vacant plot suited in Rajza bazaar, Rawalpindi.
2. That the defendant had to pay 20000/ per month to the plaintiff.
3. that the defendant contracted to use the plot for car parking.
4. that the defendant breached the contract and he used the plot for construction material dump for
three months.
5. that the plaintiff claims now rupees 90000 for three moths use of the plot for consutction material as
the amount of rent.
6. that the defendat resides in Rawilpindi hence the respected court has jurisdiction over this suit.
7. The value of subject matter of the suit for the purpose of suit valuation is 90000/.
It is thereby respectfully prayed the decree for recovery of 90000 to the plaintiff against the defendant.
M. Ismail through Mr.Nazir Advocate
Verification:
Verified on oath at Rawalpindi on 14th December 2010 that the contents of pars, 1 to 7 are true to the
best of my knowledge.
Muhamamd Ismail (plaintiff)
Written Statement
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It is pleading by the defendant. It is not mandatory in every case, such case which is small.
Generally within 30 days and two adjournments there must be written statement. It is the defense of
the defendant.
The plaintiff will remain the same.
Caption also will remain same such as (Suit for declaration, injunction, etc….) just he will write
Written statement by defendant or on behalf of defendant No1.
The answer must be Para-vise (admitted or denied) (the defendant respectively submits)
Dilatory statements are allowed such as (I admit but ……..)
New things can be added in written statement as well.
If any objection in Jurisdiction, or limitation they can be raised such as (the honorable court has no
jurisdiction)
No relief can be asked in written statement. (The plaint may be dismissed with cost) it is not
claiming, it can be written.
An application can be submitted before written statement that the deficiencies of plaint may be
added for further information.
At last Verification and signature of defendant & advocate are necessary.
In the court of civil judge – Rawalpindi
Suit No: 1256/A, Dated 11/12/2010
Mohammad Ismail S/o Abdul Hamid, caste: Ariya, age: 25, resident of St: 46, H: 548, G10/4, Islamabad
(Plaintiff)
Versus
Karim Din Export Company, located in Block G, shop; 10, Sadar Road, Raja bazaar, Rawalpindi
(Defendant)
Suit for Specific performance of the contract or (wrongful dismissal)
Respectively Shewth, the defendant respectfully submits
1. Para 1 admitted.
2. Denied because that the plaintiff did not perform his work well and he was absent for two weeks
from the office without leave from the director of the company.
3. Denied, because proper notice was issued for dismissing as per rules and copies are available in
record. (the plaintiff was admonished and it is in record)
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4. Admitted.
5. That the proper stamp paper is not attached.
6. That respectful court does not have jurisdiction to hear this case because the defendant does not
resides in this jurisdiction.
It is therefore that the plaintiff cannot precede the case hence the plaint may be dismissed with cost.
Karim Din Export Company (Defendant)
Through
Akram Niazi (Advocate)
Verification
Verified on oath at Rawalpindi on 11 th December 2010 that the contents of pars, 1 to 6 are true
to the best of my knowledge.
Karim Din Export Company (Defendant)
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LAW OF TORTS
Prepared by: Mohammad Ismail
CHAPTER I
FOUNDATIONS OF TORT LAW
Tort Defined
Tort is something that is not a contract and not a crime because crime is considered an offense
against the public, while tort is against an individual.
It is originated from the Latin torquere meaning to twist. And twisting is the bending of the rules of
proper human behavior resulting in harm to another person.
Tort: is “ a civil wrong resulting in injury to person or property to another” . The injury may be an
intentional act or omission or as a result of unintentional behavior. Black’ s law Dictionary defined torts as:
“ it consists of the existence of a legal duty owned the plaintiff by the defendant, breach of the duty, a
proximate casual relationship between the breach and plaintiff’ s injury and damage” .
Tortious Conduct: the intentional or unintentional behavior that results in harm to other is called tortious
conduct or conduct which is harmful to other individual rights.
Cause of Action: this is remedy which is the right of the injured person to bring a lawsuit against
wrongdoer.
Tortfeasor: The person, whose behavior resulted in injury to another, is called tortfeasor. Feasor means to
make or do, means who does a tort.
Object: the object of tort is to assign financial responsibility, referred to as liability to the tortfeasor for
tortious conduct that has resulted in injury to another.
History of Torts
Originated in English Common law which is the foundation of many principles and rules that are
followed in American jurisprudence. Tort law preceded criminal law in permitting vengeance by individuals
for personal wrongs. Personal revenge was later replaced by a system of monetary compensation, becoming
the first recovery of damages for tort.
This law is rooted in 13th Century concept of trespass. Trespass was considered as breach of the
King’ s peace by act of force or violence that result injury to any person or property. The victim petition to
court through a writ. Writ is still used in many systems. Two writs were available on that time:
1. The writ of trespass directly and forcefully it was available for involving in intentional torts.
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2. The write of trespass on the case of wrongful act indirectly causing injury to the King’ s peace.
Where redress is sough on basis of fault and negligence. And redress provided by the King’ s court was the
form of monetary damages compensating the victim for the loss of injury and pushing the wrongdoer.
The system evolved into urban industrial society in 18 th so the recovery for injury from ancient writs
changed to a system of recovery based upon the dual concepts of intentional torts and negligence.
Sources of Tort Law
The common law is the single most significant source of today’ s tort law.
Evolution
The evolution of tort law begins with appreciation of role of natural law. Natural law is a
fundamental legal principle that is essential to an ordered social existence. The English law was founded on
principles dictated by natural law.
A valuable research tool is legal treatise. Because it provides an exposition of the area of law
greater and deeper such as Prosser and Keeton on the law of Tort which is horn book.
Judicial review: is the power of the court to review legislative enactments to determine their
validity. And to interpret the meaning of statues in light of common law principles superimposed upon the
realties of our modern society.
Resources
1. Authorities: For legal research into the law of tort these resources are considered as Primary
Authority. And Secondary Authority is consisted of statements about the law. It presents
explanation, analysis, or criticism of the law.
2. Constitutions: it is highest law of land. It establishes the form for the organization of
government and provides for the rights and privileges of the citizens it protects. A right that
recognized in a constitution and protection n the law of torts is called Constitutional tort.
3. Statutes: is a formal written act of a legislative body that creates a law. Such as Federal Tort
Claims Act 1946, United States Code, etc.
4. Case Law: is made up of court decisions issued by appellate court reviewing the decisions of
lower courts. Court Reports can be found in volumes set. For example Federal Report 2d,
Michigan Report.
5. Finding Tools: are legal research aids to locate primary and secondary sources of the law. Such
as American Digest System, Regional Digests.
Purpose of Torts
The purpose of tort has been historically classifies in terms as follow:
1. Punishment: ancient tort remedies were based upon monetary punishment, in modern theories does
not include a penalty to teach the tortfeasor a lesson. And no exemplary damage (are last remnant of
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ancient tort to punish the tortfeasor) the goal is to punish the wrongdoer to make an example of the
consequence for egregious conduct. This has been criticized because of this the application is
limited. Now days it is monetarily responsibility which penalizes the wrongdoer.
2. Deterrence: individual tortfeasor will be deterred from acting in a tortious manner out of fear of
economic sanction. The goal of attempting to reduce tortious conduct through deterrence is valid.
The deterrence of harmful conduct in an important goal of tort law. Monetary sanction makes the
person to behave in such that no injury occurs to another person or property. And civil liability will
be imposed upon him.
3. Compensation: the most critical purpose of modern tort law is compensation for the victim of
tortious conduct. A recovery of money to compensate a victim of tortious conduct is called
Compensatory Damages. It is shifting the cost of an injury from the victim to the tortfeasor. His fault
will be legal excuse for this responsibility, make him to pay for this. It is shifted from victim to
tortfeasor in the turn of insurance carrier. The net result is that the individual consumer eventually
pays the cost for every injury caused by tortious conduct in a commercial setting.
Categories of Torts
No wrong without a remedy. So tort law establishes a remedy for wrongs provided that the basic
elements of the cause of action exist. The parties are Plaintiff who commences the action and he has
sustained an injury and Defendant the party in a lawsuit against whom an action has been brought. He is the
tortfeasor for tortious conduct. A cause of action must contain:
1. Legal right residing with the plaintiff.
2. Corresponding Duty.
3. Violation of that duty.
4. Damage to the plaintiff as result of that violation.
The body of tort law is divided into three categories:
1. Negligence.
2. Intentional torts.
3. Strict Liability.
The distinction between the above three lies with intent. Intent involves “ a state of mind at time
one carries out an action to bring about an intended result” . Intentional torts are discussed later on but
they are such assault and battery, false imprisonment, false arrest, infliction of emotional distress, fraud,
misrepresentation, conversion, trespass, invasion of privacy, defamation, malicious prosecution, abuse of
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process. There are some other categories which are not included such as premises liability, nuisance,
vicarious liability, product liability.
CHAPTER II
THE TORT OF NEGLIGENCE
Negligence Explained
Negligence is failure to use the care a reasonable person would under the same circumstances. It
does not refer to the state of mind of he tortfeasor, but rather focuses on his or her conduct. Intention is not
required from the tortfeasor. It is necessary that he fails to anticipate the risk of consequences and fail to
guard against such consequences appropriately. In Restatement of Torts ALI 56 defines neglect as: “ is
conduct which falls below the standard established by law for the protection of others against unreasonable
risk of harm” .
For determining negligent behavior Prf Keeton states that “ not to look to the mind of the tortfeasor,
but to the demands that society places on conduct” . And the court will determine the standard of negligence
and provide the elements for that.
Elements of Negligence
1. Did defendant own a duty of reasonable care to the plaintiff?
2. Did he breach the duty of reasonable care?
3. Was the defendant’ s breach the proximate cause of the plaintiff’ s injury?
4. Did the plaintiff suffer damages?
These above element presented in the order submitted to a jury in order to sustain a verdict for the
plaintiff.
1. Duty of Reasonable Care
It is a standard of conduct that is owed by the defendant- tortfeasor to the plaintiff in an action for
negligence.
Duty is an obligation requiring an individual to do or refrain from doing something to protect others
from harm. In Black law Dictionary “ an obligation, recognized by the law, requiring actor to conform to
certain standard of conduct for protection of others against unreasonable risks” . And determination of duty
56
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. American Law Institution.
is upon the court to decide, not the trier of fact (jury). It is legal question. The court has to decide that. It
would be understood if we examine it in the light of following categories:
1. Reasonable person standard.
2. Scope of the duty 3.Source of the duty. 4. An act or omission.
5.
Forseeability.
1. Reasonable Person Standard
The reasonable person standard compares the conduct of an individual to that of an imaginary person
under the same or similar circumstances in avoiding harm to another. The Restatement of Torts defines it as.
“ Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is
that of a reasonable man under like circumstances” .
Prf. Keeton stated that, “ the actor is required to do what such an ideal individual would be supposed
to do in his place. A model of all proper qualities, with only those human shortcomings and weaknesses
which the community will tolerate on the occasion” .
The reasonableness of the individual’ s conduct must be measured in the light of the following
characteristic:
1. Physical Attributes: generally the reasonable person has the same physical attributes as the
defendant-tortfeasor. A defendant who is in some way physically incapacitated cannot be held to a standard
of conduct that would be impossible for him to meet. Such as a deaf person is entitled to have allowance
made for his disability.
2. Mental Condition: the defendant is held to an objective standard of reasonableness regardless his
mental health. The courts are not as tolerant concerning the defendant-tortfeasor mental condition. The law
requires severely disturbed or psychotic individuals to conform to general standards of conduct and renders
the responsible for any harm caused. The Restatement of Torts provides that mental illness does not relieve
the actor from responsibility. Similarly voluntary intoxication and drug use render the defendant fully
responsible for his action.
3. Age: the trier of fact compares the individual with reasonable person of similar age and infirmity
under the same or similar circumstances. Prf. Keeton provides that the standard which is ordinarily applied,
and which is customarily give the jury, is to measure the child’ s conduct against what would be reasonable
to expect of a child of like age, intelligence and experience. The age may vary from state to state but a
common minimum age for responsibility is set at seven.
4. Knowledge, Skill and Intelligence: the person knows that his act involves a risk of causing
harm. Knowledge is defined as, “ an awareness or understanding gained through experience or study” . The
Restatement of Torts suggests the reasonable person standard for recognizing the existence of risk. The actor
is required to recognize that his conduct involves a risk of causing an invasion of another’ s interest if a
reasonable man would do so while exercising. Just as the reasonable person standard requires minimum
levels of knowledge for an individual, it also demands that an individual’ s possession superior knowledge
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or intelligence must act accordingly. The experience man such doctor are required beyond the exercise of
reasonable care, they are held to a higher standard.
2. Act or Omission
An act within the meaning of the law is the process of doing something. And an omission is the
failure to do something. To provide the basis of an action for negligence, the act must be a duty required of
a reasonable person under the same or similar circumstances.
Misfeasance: An act of misconduct is called misfeasance. And may form the basis of liability for
negligence if the act results in harm to another and fails to meet the reasonable person standard.
Nonfeasance: a failure to act is called nonfeasance. And may form the basis of an action for
negligence if a reasonable person would not have failed to act under similar circumstance. The key for both
of these two is the reasonable person standard.
3. Source of Duty
1. Case Law: the common law of this country, embodied in its case law, form the primary source for
authority establishing the duty of reasonable car.
2. Statutory: the application for the duty of reasonable care may be found in congressional and
legislative enactments.
2. Breach of the Duty of Reasonable Care
The second element for tort of negligence is the breach of duty of reasonable care. Breach is a
failure to perform a legal obligation or duty. A violation of the duty of reasonable care constitutes a breach
of the duty. If the defendant-tortfeasor’ s conduct is unreasonable, then he or she has breached the duty. If
he fails also he breaches duty.According to Prf. Keeton breach of duty is “ the almost universal use of the
phrase due care to describe conduct which is not negligent should not obscure he fact that the essence of
negligence is not necessarily absence of solicitude for those who may adversely affected by one’ s actions
but is instead behavior which should recognized as involving unreasonable danger to other” .
3. Proximate Cause
This is the third element to sustain a tort action for negligence. It means that the defendanttortfeasor’ s conduct caused a foreasable injury to the plaintiff. It is frequently called legal cause and refers
to conclusion by the trier of fact that the plaintiff’ s injuries are natural and probable consequences of
defendant’ s conduct. Cause: something that produces and effect a result. Proximate: something that is
closely related in space, time or logical order. A combination of both means closely related act or omission
by the defendant that produces an injury to the plaintiff.
Causation
Cause in Fact: it means that the defendant’ s conduct was the cause of the plaintiff’ s injury.
But-for Rule: just cause is not important but that it was legal cause of the injury. And the test used in the
court is called but-for rule. It states that if the harm would not have occurred without the conduct of the
defendant, then the defendant-tortfeasor is liable.
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Substantial factor Rule: it states that if the defendant-tortfeasor’ s conduct was a substantial factor in
bringing about the plaintiff’ s injury, then proximate cause may be found.
The actor’ s negligent conduct is a legal cause of harm to another if: His conduct is substantial
factor. And if there is not rule of law relieving the actor from liability.
In determining substantial factor in production of plaintiff’ s injury the jury must conclude that a
reasonable person would regard it as a cause.
Scope of liability
The determination of defendant’ s responsibility only begins with a finding of the conduct that was
the cause of injury. If the causation established by any above rule then the jury will find that whether he
should be held responsible or not? To find responsibility proximate cause is necessary, and finding of
proximate cause will support for finding of liability for the injury.
Forseeability or Unforeseeability
Forseeability is a reasonable anticipation that harm will occur from an act or omission. To find
proximate cause the jury must conclude that reasonable person would have anticipated the injury to others
resulting from his conduct.
Unforeseeability: it is beyond the scope of forseeability. It occurs when reasonable person could not
conclude that an injury would occur from an act or omission.
Intervening Causes: it is the act of a third person or some other force that produces injury to the plaintiff
after the negligent act of the defendant. It relieves the defendant from liability regardless of that his
negligence was a substantial factor in bringing about the injury. The Restatement of torts calls it a
superseding cause.
4. Damages
Damage consists of the recovery of money to compensate for loss or harm as a result of an unlawful
act or wrong by another. It is money awarded to the plaintiff for injury resulting from the tortious conduct of
the defendant. It is monetary in nature.
Types of Damages
1. Compensatory damages: it is to compensate the plaintiff for actual loss or injury. It includes
medical expenses, property damages, lost wages, permanent loss of bodily function and pain and
suffers.
2. Punitive damages: it occasionally awarded for intentional torts or gross negligence as
punishment to the defendant it is called exemplary damages.
3. Nominal damages: when there is not actual loss or injury happened to the plaintiff, they are
awarded in intentional tort cases in strictly liability.
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Loss of Consortium: it compensates the spouse of the injured party for loss of love, companionship,
services, affection and sexual relations. This form of damages ir referred to as a claim for loss of
consortium. The purpose this is to fully compensate the victims of negligent conduct.
Avoidable Consequences: if the plaintiff has sustained an injury, this doctrine mandates him that must take
reasonable steps to prevent any further injury. The defendant is not to be held responsible for the failure of
the plaintiff to seek medical attention when to do so would have been reasonable under the circumstances.
Collateral Source Rule: It states that the defendant tortfeasor may not benefit from the fact that the
plaintiff has received compensation for his injuries from some other sources. If he receives money from
other resources than the defendant the defendant’ s liability is not reduced. Such as medical insurance.
CHAPTER III
PROOF OF NEGLIGENCE
Legal Proof
Legal proof is the result of drawing valid inferences from the available facts. There are several types
of evidence are available to the jury.
Rules of Evidence: The rules of evidence are rules of courts that govern the admissibility of evidence in a
trial. Evidence: is something that proves or disproves a fact. Evidence is presented to the jury in the form of
witnesses, testimony, exhibits, document and physical objects. The general rule is that the judge decides the
law, and juries decide the question of facts. Question of Facts: is the resolution of an issue concerning the
existence of a fact, as opposed to a question of law. Opinion: is what a person thinks or believes as a
conclusion draw from facts. It is not fact itself it is inference from facts.
Principles of Evidence:
1. Evidence that is not relevant to the case cannot be received.
2. Hearsay evidence cannot be received.
3. Opinion testimony can be received only from expert witnesses.
4. The content of writing cannot be varied by oral testimony.
5. Privileged communication cannot be received.
6. Evidence must be offered pursuant to the formal rules of court.
Preponderance of the Evidence: standard of proof or evidence in the criminal case must be proven beyond
a reasonable doubt. In Civil case the standard is less stringent, requiring that existence of a fact be proven by
a preponderance of the evidence. The credibility of witnesses must be determined. Issues of proximate cause
and value of damage must be resolved through application of the same standard of proof.
Unavoidable Accident
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This doctrine states that an accident is unavoidable if it was not proximately caused by the act or
omission of the defendant-tortfeasor. Unavoidable accidents lack the requisite proximate cause to sustain an
action for negligence. This doctrine draws limiting in responsibility of human behavior. Every act is not
exposure for liability.
Act of God
Act of God is a sudden, unexpected, and extraordinary demonstration of the force of nature from
which human cannot protect themselves. When harm results from an act of God there is not liability for
negligence. However if the act of God combines with neglect of human being then he is being liable for the
damages. The defendant’ s negligence creates an element of forseeability upon which to base a finding of
liability.
Degree of Negligence
The old law held that the greater the risk, the greater the care required. It recognized three distinct
degrees of negligence.
1. Slight negligence: failure to use great care;
2. Ordinary negligence: failure to use ordinary care; and
3. Gross negligence: failure to use slight care.
One Standard: the difficulty in classifying conduct and care required most courts seek a single standard by
which negligence can be measured and that is ordinary negligence.
Willful, Wanton, and Reckless Conduct: modern negligence theory provides a category that exists
between ordinary negligence and purely intentional harm. That is called willful, wanton, and reckless
conduct. The three terms are used interchangeably in the law they together describe a form of highly
unreasonable behavior, departing far beyond ordinary negligence. The Restatement of Torts distinguish
between reckless conduct and negligence in terms of the amount of risk. The jury determines whether the
conduct is willful, wanton and reckless. They decide whether there has been a failure to exercise due care,
and whether there was a great probability harm would result from the lack of care. It takes two forms, one is
act and other is failure to act.
Negligence Per Se: in some circumstance state legislature explained some standard for conduct of a
reasonable person applicable to all persons such as regulation for doctor for performing the operation. Any
deviation from that standard is negligence. The proof of negligence is to show that the standard has been
violated. And violation of that standard is know as Negligence Per Se. the plaintiff must be a part of a class
of individual that the legislature sought to protect in enacting statute. If not then the theory of negligence per
se would be unavailable.
Guest Passengers Statutes: A statute which imposes liability for harm done to a guest in an automobile if
the driver’ s conduct is in reckless disregard the safety of guest. A guest passenger statue provides that the
driver of an automobile is liable to a gratuitous guest (as opposed to a paying customer) only for gross
negligence.
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Burden of Proof
The negligence must be proved by preponderance of the evidence. The party attempting to prove the
existence of negligence, as a matter of fact and law has the burden of proof by a preponderance of evidence.
The burden lies with the plaintiff.
Function of Court and Jury: in USA the existence of negligence in question of fact is the duty of jury to
decide, and question of law the court decides. The question of law which have to be decided are these:
a. Is there a duty? And imposition of legal obligation on one person?
b. What is the general standard of conduct?
And the questions of fact for the jury to decide are these:
a. Is the evidence sufficient?
b. What is the weight of the evidence, the value of proofs, and conclusion?
c. What is the particular standard of conduct? And reasonable person’ s conduct.
Presumptions: it is a rule of law stating that the jury may assume the existence of a fact. If there is no proof
then the assumption of jury to find the fact.
Prima Facie Case: once the plaintiff met all elements are negligence, he has proven a prima facie case
liability. Literally it means “ on the face of it” , and shifts the burden of proof the defendant to rebut the
evidence. It means the plaintiff proof is sufficient to establish the claim.
Res Ipsa Loquitur
This doctrine provides an exception. It permits an inference of negligence on the part of the
defendant under certain circumstances. There is an inference that that the injury arose from the defendant’ s
lack of care. The term literally means “ the thing speaks for itself” , and represents a fusion of the concept
of circumstantial evidence, which indirectly proves the existence of fact, with the plaintiff’ s burden of
proof.
Condition and Circumstance: the following conditions are necessary:
1. The event must be of the type that would ordinarily not occur without the defendant’ s negligence.
2. The accident must be cause by some instrumentality in the exclusive control of the defendant.
3. The accident must not be due to any contribution on the part of the plaintiff.
Joint Tortfeasor’ s Liability
If two or more defendant-tortfeasors were negligent, whether they acted in concert or alone and each
was the cause of a single harm to the plaintiff, they are liable to that plaintiff. The term for liability of two or
more persons together is called Joint Liability.
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Concerted Action: if two defendants acted in concert to commit a tort by common design and joint
enterprise in the act, so it is deemed that the act of one is act of all, and each individual is liable for the
damage done.
Joint and Several Liability: if the acts or omissions of two or more individuals, acting simultaneously or in
sequence, were the proximate cause of the injury to the plaintiff they are liable for the entire result, this is
known as joint and several liability.
Contribution and Indemnity: it is that all joint tortfeasors in a negligence action is the sharing of the
payment of any award to the plaintiff. This principle is that one defendant can recoup a proportionate share
of the judgment from any other tortfeasors who contributed to the injury. And Indemnification it is the full
reimbursement of the party paying a judgment to the plaintiff. The difference is that in indemnity the entire
amount is reimbursed and in contribution proportionate share of the award.
Survival Actions and Wrongful Death
The English law contained three principles that materially affect the ability to maintain an action for
negligence involving in death;
1. A defendant-tortfeasor’ s death terminated the right of the plaintiff to proceed.
2. The plaintiff’ s death before any recovery terminated the cause of action.
3. Relatives of a deceased plaintiff had no cause of action for loss of support.
The principles terminating the right of recovery with the death of either plaintiff or defendant were
termed as Survival rules because the action could not be maintained after the death of either party. To stop
the family not to proceed against the person for the death was termed as Wrongful death action.
CHAPTER IV
DEFENSES TO NEGLIGENCE
Contributory Negligence
If the plaintiff’ s falls below the standard of protection, the defendant may have a defense to the
action.
Definition: Contributory negligence is conduct on the part of the plaintiff that falls below the standard to
which he is required to conform for his own protection. The Restatement of Trots defines it as, “ conduct on
the part of the plaintiff which falls below the standard to which he should conform for his own protection
which is legally contributing cause co-operating with the negligence of the defendant in bringing about the
plaintiff’ s harm” .
Bar to Action: a defense of contributory negligence operates as a complete bar to action by the plaintiff.
Once a prima facie case has been proven by the plaintiff and the defense of contributory negligence has
been established, the plaintiff’ s case is defeated. Example is in page: 70 of the book in the last two
paragraphs.
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Distinguished from Negligence: Prof. Keeton pointed that the word negligence is used wrongly there
might be contributory fault. Because negligence involves a duty toward others, while contributory
negligence involves the conduct of the plaintiff creating an undue risk of harm to self.
Role of Causation: the jury must apply the principles of ordinary negligence to make a finding of
contributory negligence by applying the rules of causation. The court held that the plaintiff’ s own
negligence will bar him from recovery.
Avoidable Consequences: the doctrine of avoidable consequences is closely related to contributory
negligence. This rule denies recovery of any damage that could have been averted by the plaintiff’ s
exercise of reasonable conduct. The principle behind this is that the plaintiff must take proper care to protect
his own interests.
Knowledge of Peril: the doctrine of contributory negligence requires that the plaintiff had known the
danger and failed to prevent injury. If he known the danger but could not anticipate the hazard that cause
injury he is not barred.
Comparative Negligence (CN)
Nature of CN: Comparative negligence is a statutory system of apportioning damages between the parties
to a negligence action, reducing the recovery by the percentage of negligence attributed to the plaintiff.
Elements of CN:
1. Actionable negligence by the defendant causing harm or injury to plaintiff.
2. Negligent act by the plaintiff that contributed to his injury.
3. A measurement of the percentage of the relative contribution of the negligence of both plaintiff
and defendant.
4. An award of dames to the plaintiff reduced by the percentage of his own negligence.
System of Comparative Negligence: the system varies b/w states. There are three principal types of
comparative negligence systems:
a. Pure comparative negligence: a plaintiff’ s negligence does not serve to bar a claim, but does
reduce damages in proportion to fault.
b. Modified comparative negligence: some times called 50% system;
c. Slight-gross system: a plaintiff’ s contributory negligence is not a bar to his claim as along as his
negligence is slight and the negligence of the defendant is gross.
Joint Tortfeasors
When there is more then one defendant so the rule of joint and several liabilities which were
discussed in previous chapter is maintained by most states. Once liability of the plaintiff and the defendants
have been measured by the jury, the issue of contribution between the joint tortfeasors arises. Some allow
the apportioning of the damages equally among the defendants accordingly which is called equality rule.
Some other states they adopted a system of apportionment of damages between the defendants upon their
fault it is called Comparative Contribution. And the assessment of that will be by jury.
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CHAPTER V
INTENTIONAL TORTS
Intent
An intentional invasion of another’ s personal or property interest, regardless of fault or harm,
exposes the act of liability in tort is called intentional torts. Intend is derived from the Latin word intendere,
meaning “ to form a plan or purpose” . The Restatement of Torts defines it as, “ the word intent is to denote
that the actor desires to cause consequences of his act, or that he believes that the consequences are
substantially certain to result from it” .
Elements of Intentional Torts: most there are three elements for this:
1. A state of mind.
2. an intentional act; and
3. Substantially certain consequences.
Intentional torts involving to person are: assault and battery, false imprisonment and arrest, infliction of
emotional distress, misrepresentation and fraud, invasion of privacy, defamation and misuse of legal
procedure. And Intentional torts involving harm to property are: trespass to land and Chattels, and
conversion.
Harm to Person
1. Assault and Battery: The Intentional tort of assault provides remedy for an individual who has been
placed in apprehension of harmful or offensive physical conduct. Actual physical conduct is not required in
assault. The elements are:
i. an act.
ii. Intent to cause harm physical or apprehension.
iii. Apprehension of imminent harm.
The Restatement of Torts defines it as “ an act that causes apprehension of immediate contact
without requiring any tangible material harm to other” . The fear must be reasonable, and the threat must be
immediate. And plaintiff must be aware of the threaten. The words alone does not constitute an assault
unless accompanied by the means to carry them out.
Battery: is the actual harmful physical contact resulting from an intentional act on the part of
another. It is said that battery is completion of assault. Elements are:
i. an intentional act. ii. Harmful physical contact.
iii. Contact unpermitted by plaintiff.
2. False Imprisonment: freedom from restraint of movement is the basis of the intentional tort of false
imprisonment. It is an intentional confinement without consent or legal right. The confinement is such that
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the plaintiff does not have any way to escape. The Restatement of Torts added that “ the confinement cause
some form of harm. An actor is liability to another imprisonment if he acts intending to confine the other
within bound arise fixed by actor or his act directly or indirectly results the confinement of third person or
and he knows that the confinement harms the plaintiff” . A mere restrain is insufficient to support false
imprisonment. It must be perceived by the plaintiff to the real and be actual and total. There should be legal
right for confinement. And Restatement explains confinement, “ to make the actor liable for false
imprisonment, the other’ s confinement within the boundaries fixed by him must be complete, and there is
no way of escape for plaintiff, the person does not confine if he restrains other to go to any direction or way
he has right or privileged to go” .
3. Emotional Distress: it is state of mind characterized by fear, anxiety, horror, grief, shock, humiliation, or
embarrassment. Mental anguish and psychological harm form the basis for the cause of action for
intentional infliction of emotional distress. Mere insult, obscenity or indignity and boorish behavior will not
be recovered by law. Elements are: 1. outrageous conduct by defendant.
2. Intent to cause mental distress.
3. Actual emotional distress suffered by plaintiff.
Outrageous Conduct: is conduct on the part of the defendant-tortfeasor that is beyond decency.
The conduct which is directed at third person is also emotional distress. And the actor is liable if he
intentionally or recklessly causes sever emotional distress to a member of such person’ s immediate family,
to any other person who is present at the time, if such result in bodily harm.
4. Right of Privacy: it is right of an individual to be free from an unwarranted intrusion into matters with
which the pubic is not necessarily concerned. According to Restatement of Torts the right of privacy
invaded by:

Unreasonable intrusion upon the seclusion of another.

Appropriation of the other’ s name or likeness.

Unreasonable publicity given to other’ s private life.

Publicity that unreasonably place the other in false light before the public.
Four tort actions based up the right of privacy are:

Appropriation: the unauthorized use of plaintiff’ s name for economic gain.

Unreasonable intrusion: highly offense of interference with another’ s interest in solitude or
seclusion as to his private affairs.

Public disclosure: unauthorized and offensive disclosure of purely private.

False light: in the public eye.
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The burden of proof is on the plaintiff to prove the falsity of the statement. The court distinguished
between the public figures and private figures. If plaintiff is public figure, he must prove a knowing
falsehood. If the plaintiff is a private figure, he may recover merely by proving the falsity without the
necessity of proving that the defendant knowingly published it. If the false statement is defamatory it is
better to recover by the way of defamatory.
5. Defamation: it is aimed at the freedom from harm to an individual’ s reputation and good name.
Defamation is any false and intentional, oral or written communication, injurious to the other’ s reputation
and good name.
Defamatory Statement: it is a statement that harms the plaintiff’ s reputation and good name in the
eyes of another, causes the plaintiff to fall in esteem, or makes other cease association with him.
The communication may effect one’ s moral or financial standing. The person who is deceased may
not be defamed. Legal person, corporation, state can be defamed. Publication of defamatory statement is
key element in the tort. Elements are as below:

A defamatory statement by the defendant-tortfeasor.

False defamatory communication about the plaintiff.

Publication of the defamatory statement to a third person.

Harm to the plaintiff’ s reputation and good name.

A causal relationship between defamatory statement and damages.
Libel defamation: is a written defamatory statement communicated to third person, commonly, made in
newspapers, books, magazines, letters, or other publications. For the determination of libel the court test the
followings:

Wide areas of dissemination.

Record of the publication with some degree of permanence.

Deliberation and premeditation of the defendant-tortfeasor.
Any actual damage is not necessary in this tort.
Slander Defamation: is an oral defamatory communication to another and there must be proof of actual
damages.
Slander per se: that no proof of actual harm to reputation or good name is required to maintain the action.
The Slander per se consists of four:
1. Accusation of a crime: the slander must involve the suggestion of a crime that involves moral
turpitude.
2. Accusation of a loathsome disease.
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3. Statements affecting one’ s reputation in business or profession.
4. Accusation of unchastity: allegation the failure of moral charter of either sex.
The above are not required actual harm and they are award of nominal damages.
Defamation by Computer: this tort consists of the communication of intentionally false statements affecting
the reputation and standing of another in the community via computer. The use of internet for this reason
also included in it.
Truth: the basis is that the statement is false, but if the statement is true there is no liability upon him. But
difficulty is with substantially true, if reasonable person would decide that the accusation was justified, then
the truth will operate as a defense. And it must have been made without malice.
6. Misuse of Legal Procedure: the intentional use of legal process basis on three:
1. Malicious Prosecution: wrongfully prosecuted for a criminal act suffers both the reputation and
by confinement. It is unjustified use of the criminal process against another person. Elements are as follow:

Criminal proceeding instituted against the plaintiff.

Termination of the proceeding in favor of the plaintiff.

Absence of probable cause for the proceeding.

Malice on the part of the defendant-tortfeasor.
Actual harm must be shown through loss of reputation, mental distress, legal expenses, or loss of a
job.
2. Wrongful Civil Proceeding: elements are the same as malicious prosecution. The basis for this tort
is lake of probable cause for the commencement of the civil action.
3. Abuse of Process: improper use of legal proceedings that may have been properly initiated. The
elements are as follow:

An ulterior purpose in the use of civil process.

A willful act in use of the process.

Harm to the plaintiff.
This tort is similar to the crime of extortion in the civil process is used to gain some thing not
otherwise lawfully obtainable.
Damages: the damages of the above torts all share mental distress which suffered by the plaintiff. And the
plaintiff is entitled to recover for embarrassment, humiliation, anxiety, depression or an aggression many
underlying emotional conditions. And recovery for damage of illness. In the situation where the defendant
acted with malice, punitive damages may also be available. If more than one tort is involved, there will be
only one recovery.
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Harm to Property
Interference with the right of possession and enjoyment of property has been the basis of the tort
action of trespass. And trespasses are two types:
1. Trespass to Land
An action for harm to land occurs when there has been an entry on another’ s real property without
consent. There are three elements for trespass:
1. An entry upon the land of another without consent.
2. An intentional entry.
3. An interference with the use and enjoyment of the land.
Entry: the first requirement is an intentional entry on the land of another is invasion without consent that
interferes with the plaintiff’ s exclusive right of use and enjoyment of property. Entry can be by personal
invasion, by causing another to invade, or causing tangible things to invade the property. No entry without
tangible thing such as voice.
Intent: the defendant intended the invasion of the property interest of another. If it was negligent, then
theory of trespass will not apply.
Damages: the intended invasion need not cause any actual harm to the property, but only the interference
with its use and enjoyment.
Possession: the actual and exclusive possession of the property, and does not necessarily refer to the interest
of an owner. Such as a tenant he can use the property.
Vertical Possession: the possessor of land has a property interest that extends above and below the surface
of the land theoretically, but practically aircrafts and underground utility are allowed.
Toxic Torts: toxic which are produced by industrial society. It means an action in tort for toxic interference
with one’ s ownership and enjoyment of property.
2. Trespass to Chattels
Any intentional interference with another’ s personal property is called trespass to chattels. The
defendant must intend to deprive the plaintiff of the use and enjoyment of the property.
3. Conversion
Conversion is a tort action for harm to property and is similar to trespass of chattels. The theory of
trespass was that the owner of the property had his property interest interrupted, yet the plaintiff remained
the owner. In conversion, the defendant-tortfeasor deprives the owner of possession and puts the chattel to
his own use. The modern distinctions of both are lie with the seriousness of the interference. An action for
conversion is used to have the defendant to pay full value for the goods. Three elements:

Interference with possession of a chattel.

Intent to covert the chattel to one’ s own use, and
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
Lack of consent on the part of the owner.
Injurious Falsehood
It is a body of tort law that has evolved to address interference with economic relations. It began
with an action for written aspersion to title to property, called slander of title, and then extended to include
disparagement of the quality of property, called commercial disparagement. The following elements are for
this tort:

Publication of a false statement regarding the plaintiff’ s property, title or affairs.

Intent of defendant-tortfeasor to prevent others from dealing with plaintiff.

Communication of the falsehood to another.

Actual damages.
Deceit
The tort action for deceit is used to cover many differing types of action for misrepresentation, fraud,
and nondisclosure. This is result of false statement. Elements:

False representation by the defendant.

Knowledge by the defendant that representation is false.

Intent to induce the plaintiff to act or refrain from acting.

Reliance upon the misrepresentation by the plaintiff.

Dame to the plaintiff.
Note: This note may not be sufficient; one has to read full text of book. Thanks
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Minor Acts
Prepared by: Mohammad Ismail
The Arbitration Act 1940
It is a process to settle the dispute between the parties. The arbitration Act is law and Arbitration is
process of that law. The decision of third person is called arbitration. Arbitration is party Autonomous (selfdirection or parties to decide) and it is:
1. Method of dispute of settlement.
2. It is informal and private method or process of settlement.
3. It is the substitute of litigation. It is to avoid the lengthy process of law. And decision through
arbitration is called award.
4. Consent of parties is necessary.
5. Fast track to resolve the dispute.
Modes of choosing arbitration (writing)
1. In contract may include an arbitration clause.
2. Arbitration consent may be shown by an agreement. In that agreement the qualification of
arbitrator can be mentioned, and this is main agreement separated then the contract agreement.
Many arbitrators can be possible; there can be appointment of Umpire or chief arbitrator.
Types of Arbitration
1. Domestic: local through parties (Parties Autonomous) it might be with or without interaction
of the court. Domestic procedure under the procedural law of that state. Such as in CPC, 2 nd
Schedule.
2. International: it is between states, e.g. Pakistan v UK. No connection with the law of state,
the party may use another process of law.
For enforcement: Foreign, Private Arbitrator Award Ordinance 2005. New York Convention 1958,
regarding international enforcement of arbitration. PK signed 1998.
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International Institutions for Arbitration
1. ICC- International Chamber of Commerce.
2. UNCITAL- United Nations Contract International Trade Arbitration Law.
3. LCIA: London Court of International Arbitration.
4. AAA: American Arbitration Association. (Paris)
5. SIAC: Singapore International Arbitration Center.
6. CAC: China Arbitration Center.
7. ICDR: International Center Dispute of Resolution.
8. ICSID: International Center of settlement of Investment Dispute.
Kinds of Arbitration
1. Ad hoc Arbitration: without any supervision of any institution, the parties can modify its
rules. It is chosen by the parties.
2. Institutionalized Arbitration: with the supervision of any institution. Parties can modify the
institution. Such as ICC: Individual and Company. ICSID: National of a state + State.
One Lecture Remained
Islamic Concept of Arbitration
Arbitration is an act of agreeing about an arbitrator to issue a settlement between disputed. This
definition is given by Mujalatul Al Ahkamul Adleya ‫مجلةكاالحكبمكالعهلية‬
Arbitration is a domestic law. Arbitrator is a person who decides disputes after inquiry and
determination. He must follow procedure of natural justice and law of the land. Arbitrator must be
honest and impartial. He must act in his jurisdiction, term of reference (terms which are presented to
him) and according to agreement, having no interest and benefit.
Rule of arbitrator
To settle dispute between parties politely. By avoiding all types of technicalities of procedural
law. But with the following of substantive law. He must try to provide a form for a speedy justice.
Requirement for Arbitrations
1. dispute between parties is the requirement of arbitration
2. There must be an agreement between the parties for going to arbitration.
3. Award should be given by one or more arbitrators.
4. Arbitration is substance oust jurisdiction of court, exceptions are there:
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a. Controlling arbitrator can be intervened by the court.
b. To prevent misconduct.
c. Regulating procedure after the award.
Preamble: the objection of the act is mentioned, it is to supersede the provisions, to clarify the
ambiguity.
East Indian Company gave the concept of arbitration and en acted in 1940, governor General
Passed this act at first in 1899, then form was given after amendment in 1940.
Scheme of arbitration Act 1940 divided into three modes:
1. Arbitration without the intervention of court from Ss 3-19.
2. Arbitration with the intervention of court when there is no suit pending in the court Ss 20.
3. Arbitration with the intervention of Court when the suit is pending in the court Ss. 21-25.
1. Arbitration without Intervention of a Court
Implied conditions for arbitration Agreement
Section 3 along with the First schedule explains eight conditions for implied arbitration
agreement:
1. If number of arbitrator is mentioned then one arbitrator will be selected.
2. If two arbitrators are appointed then these two will appoint one Umpire within one month.
3. The award should be within four months.
4. After expiry of four month if arbitrators fail to award then umpire will award.
5. The umpire within two months shall make award.
6. The parties submit all books, deeds, papers, accounts, etc before the arbitrator or umpire if as
they require.
7. Award shall be final and binding to the parties and person claming under them respectively.
8. Cost of reference wills on the discretion of the arbitrators or umpire or in manner that client and
defendant (parties) pay both.
Different between Referee and Arbitrator: Referee makes statement on the bases of his own
knowledge or belief. Arbitrator pronounce award after inquiry. Referee statement is known as verdict,
and it is not binding. But arbitrator’ s statement is binding.
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S.4: the party can agree that appointment of arbitrator might be by third person and they mention his
name or any designation. Question is that whether any relative can be appointed as an arbitrator? If
relationship is disclosed then it is valid, but if it is not disclosed then it is invalid.
S.5: If once an arbitrator or umpire is appointed then his authority is irrevocable and cannot be taken
from him except by the permission of the court or any other contrary intention is expressed in the
arbitration agreement.
S.6: Agreement of arbitration is not to be discharge by the death of the party, and authority of arbitrator
is not revoked by the death of party as well, unless if by any law which any right of action is
extinguished by the death of person.
Powers of the Court
Related sections to this topic are Ss.7, 8, 9, 11, 15, 16, 17, 18, and 19. The powers of court have
been mentioned in accordance with sections below:
1. Powers in the case of Insolvency: S.7 if any party became insolvent but before the commencement
of insolvency he became the party of arbitration, any party of agreement may apply in the court having
jurisdiction in the insolvency proceeding for an order directing that the matter shall be referred to
arbitration in accordance with the agreement, and the court has power to order accordingly that the
matter ought to be determined by arbitration.
2. Power to appoint arbitrator or umpire: S.8: the general rule in this chapter is that the court will not
intervene in the arbitration proceeding. If dispute arises, the parties regarding the proceedings or
arbitration then court will interfere and shall appoint the arbitrators in the below three cases:
1. A valid arbitration agreement that arbitrators shall be appointment but the differences arisen and
the parties do not concur the appointment of arbitrators.
2. If an arbitrator or umpire neglects, refuses to act, dies or incapable.
3. If there is requirement of appointment of Umpire by parties or arbitrators but they don’ t
appoint.
A Notice must be served by any party to other to appoint the arbitrator or umpire, and after fifteen
days of that notice the court may on application of any party who gave notice and giving opportunity to
the defendant to be heard may appoint an arbitrator or umpire to make a reward.
3. Power to set aside any appointment in the case of appointment of new arbitrator by any party: S.9:
if there is an agreement that two arbitrator to be appointed one to be by each party. Unless if the
different intention expressed in.
a. If the appointed arbitrator neglect, refuses to act, dies, or incapable of action, the
party who appoint him may appoint a new arbitrator.
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b. If one party fails to appoint an arbitrator, the other gives him notice after 15 days,
that party who give notice may appoint the arbitrator to act as sole arbitrator and his
reward be binding to both parties.
But the court has power to set aside any appointment of sole arbitration on sufficient case being shown,
or allow further time for defendant for appointment of arbitrator.
4. Power to remove arbitrator: S.11, the court has power to remove arbitrator with some references and
party and conditions:
1. By an application of any party for removing of an arbitrator who fails to use all reasonable
dispatch in entering on or in proceeding with reference and making award.
2. The arbitrator who has misconducted himself or the proceeding.
If any arbitrator is removed under this section he is not entitled for payment for his service. And
proceeding with the reference means reference to the umpire become necessary giving notice of that
fact to the parties or Umpire. And the court has the power to appoint any other arbitrator, or sole
arbitrator or order to cease the effect.
5. Power to modify award: S.15, the court can modify or correct the award in the following
circumstances:
1. When matter (part of award is upon the matter) not referred to arbitration. If refer is not
included in award wholly. It can be separable, if it is separable it can be modify.
2. If award imperfect: if there is error, ex: not partiable property but he made it partiable. And
that modification does not effect the decision.
3. Award has certain clerical mistake, such as drafting mistakes.
An appeal is possible in modification but in limited extend, only to the extend of error.
6. Power to remit award: S.16 the court has power to remit the award to arbitrators or umpire for
reconsideration upon such matter as thinks fit that;
1. The court sends it back to arbitrators for reconsider.
2. The court fix the time within which they submit the decision to the court.
3. Then award would be void if arbitrate fail to remit within fixed time.
Ground of remission
1. If not completly determined, the TOR (Term of References) or determined any matters
which is not referred to them and cannot be separated.
2. award is indefinite or uncertain (the amount is mentioned but rate is not modified)
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3. If apparent objection arises such as legality of the award.
7. Power to give Judgment in term of reward: S.17 if court does not modify or remit, it has power to
give judgment as award, and that would be decree. No appeal lies except in excess use of power or not
otherwise in accordance with the award.
8. Power to pass interim order: S.18 The court has power to pass interlocutory order such as stay order
in some specific cases where the court feels that the party has taken or about to take steps to defeat,
delay or obstruct the execution of any decree, or speedy execution of award is just and necessary the
court may pass such an interlocutory order. Any person against whom such an order passed may show
cause against such order, and after hearing him the court may pass further order as it is just.
9. Power to supersede arbitration: the court has power to order supersede arbitration where award
becomes void according to S16 or is set aside according to Section 30.
10. Power to enlarge time for making reward: the court has power to enlarge time for making reward
if it thinks fit, whether the time expired or not or whether the reward has been made or not. Any
provision in arbitration agreement that the arbitrator may enlarge the time is void.
Power of Arbitrators
S.13: Unless different intentions expressed the arbitration or umpire have the following powers:
1. Administer oath to the parties and witness appearing.
2. State a special case for taking opinion of court on the question of law.
3. Make an award in conditional or in alternative.
4. Correct an award any clerical mistake or error from omission.
5. Administer to any party to the arbitration such interrogators as may be necessary in his opinion.
6. Power to make an interim award: this is according to section 27 of this act. And all reference in
this act to an award shall include reference to an interim award made under his power.
Award to be signed: if the arbitrator reached into conclusion and made reward they shall sign and give a
written notice to the parties and mention the amount of fee or charges payable in this respect. The
arbitrators or umpire shall at the request of any party or any who has interest may file the award in the
court, and give notice for the parties for filing the award in the court.
2. Arbitration with Intervention of a Court where there is no Suit pending
S.20: Application to file in Court arbitration agreement
Where any person who have entered in an arbitration agreement and different arise and he wants
to file a case before entering to arbitration under Chapter II, he may apply to a court having jurisdiction
in the subject matter that the agreement be filed in the court.
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He gives an application in written and number and registered like proper institution of a suit and
mention name of plaintiff or plaintiffs and defendant or defendants.
Then the court will send notice directing them to show cause within the time specified in that
notice.
If no sufficient cause is shown, the court order agreement to be field, and shall make an order
for arbitration appoint by the parties if cannot be agreed by the parties then can be appointed by the
court.
So the arbitration shall be proceed according to arbitration act and so far as they can be made
applicable.
3. Arbitration with Intervention of a Court where suit is pending
S.21: if there any suit pending before any court and parties are interest to take any matter to arbitration
before the final judgment they may apply in writing to the court for order of reference to send that
matter to arbitration.
S.22: the appointment of arbitrator will be as the parties agree.
S.23. Order of reference: the court order the reference to the arbitrators to determine and specify time
as thinks fit for award in that order. If the matter is referred to arbitration the court then shall not deal
with such matter in that suit.
S.24: if any party in the suit referred by an application any separable portion of the case to arbitration
according to section 21, so the remaining of suit will be continued in the court regarding the other
parties who have not joined in arbitration and to matters which are not in the order of arbitration and
award made in reference to such arbitration will be binding only on the parties who have joined in the
application.
S.25: the provisions of other chapters which are mentioned above applied to arbitration under this
chapter. Except that in S. 8, 10, 11, and 12 the instead of filling the vacancy the court may order the
superseding the arbitration and proceed with the suit.
General Provisions
S.26: the provision of this chapter will be applicable to all arbitration.
S.26-A: this section has been included in 1981. The arbitrators or umpire shall state reasons for the
award in sufficient detail that enable the court to consider any question of law. If they don’ t mention
the reason sufficiently the court shall remit the award to arbitrators and fix time within which they have
to submit reward with the reasons. And the time can be extended by order of the court. Upon their
failure within fix time the award shall become void.
S.29: if an award is for payment of money the court may fix the rate of interest in the decree order from
the date of the decree at the rate which seems reasonable, to be paid.
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Grounds for setting aside award: S.30. Three grounds are for setting side the award:
1. Misconduct of arbitrator or umpire to himself or proceeding.
2. The award became invalid award because of superseding or after the proceeding
3. The award improperly procured. The court shall make full inquiry for grounds.
Jurisdiction of Award: Section 31
1. An award may be filed in any court which have jurisdiction in the matter to which the reference
relates.
2. All question regarding validity, effect or existence of an award or arbitration agreement shall be
decided by the court in which the award under the agreement has been filed and not by any other
court.
3. All application regarding the conduct or arbitration preceding or any conflict raised for
proceeding shall be decided by the court in which has been filed not any other court.
4. If an application for any reference is given to any court, that court has alone jurisdiction over the
arbitration proceeding and no other court.
Challenging the Award: Section 33
Generally no challenging can be filed and there are some exception cases that any party or any
person claming to challenge the validity of arbitration shall apply to the court with application on
affidavits and court shall decide the question. If the court deems it just and expedient it may set down
the application for hearing on other evidence, and order for the discovery as it may be necessary in a
suit.
S. 34: Power to stay legal proceeding where there is an arbitration agreement: if there is an
arbitration agreement and the party of that agreement files a suit so any party of that agreement can give
an application to the court in which that file has been suit for stay of that legal proceeding and that
should be refereed to arbitration not in the court if the court satisfied may make an order staying the
proceeding.
Dispute as to arbitrator’ s payment (remuneration) or costs: Section 38
If any disputes arises between the arbitrators, umpire and parties regarding the payment and that
arbitrators they refused to deliver the award, the court may on application order the arbitrators to deliver
the award to the applicant on payment into court by the application of the fees demands, and make an
inquiry, or order that the money must be paid to arbitrators by way of fees sum. If there is any
provision in the agreement of arbitration regarding the payment that would be paid. If no provision then
the court may order as it thinks fits regarding the costs of arbitration if disputes arises of payment.
Appeals
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An appeal shall lie for the following order or provisions and not others, to the court authorized
by law to hear appeals from original decree:
1. Section 19, superseding arbitration.
2. Section 15, modifying or correcting award.
3. Section 20, filing or refusing arbitration agreement.
4. Section 24, reference to arbitration by some of the parties.
5. Section 13 (b), on an award stated in the form of a special case.
6. Section 34, Staying or refusing to stay legal proceedings where there is an arbitration agreement.
7. Section 30, setting aside or refusing to set a side an award.
No second appeal shall lie from an order passed in appeal under this section.
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Law of Transfer of Property
Prepared by: Mohammad Ismail
Mortgage
Security for taking loan is called mortgage. The whole concept of mortgage is based on:
1. Transfer of interest in the property. Any interest is transferred to him.
2. Interest is in specific immovable property.
3. The transfer is for any security for loan or payment of debt.
‫كانزك‬.‫ كجلهكاول‬511‫)كتفهيمكالقرآنك‬.......‫كفإنكأمنكلعضكمكلعضب‬،‫ ك (وكإنكانتمكعل كسفركوكلمكتجهواكابتببكفرهبنكمقبوضةك‬571‫سورةكالبقرةك‬
.89‫االيمبنكصفحةك‬
Section 58 of TOP: Mortgage defined as the transfer of an interest in specific immovable property for the
purpose of securing the payment of money advanced or the be advanced by way of loan, and existing or
future debt, or the performance of an engagement which may give rise to a pecuniary liability. Performance
of an engagement such as performance of a contract that one needs money so for this he can take loan for
the performance of that contract.
The Transferor is called Mortgagor.
The Transferee is called Mortgagee.
The money/ transferred is Mortgage money.
Instrument is called Mortgage Deed.
Requirement of Mortgage Deed
1. Parties (Mortgagor and Mortgagee)
2. Property.
3. Mortgage money: include interest, and rate of interest.
4. Terms and conditions such as period of payment, interest rate, security, property, rate, rent
default, etc)
Kinds of Mortgage
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1. Simple Mortgage: “ once a mortgage always a mortgage”
“ till the time the amount is paid, it will
continence” it may turn to ownership in some circumstances. In this mortgage right to sale is interest and it
has been transfer to him, this is without giving possession. The following essentials are:

The mortgagor undertakes personal liability.

No possession is delivered.

There is no foreclosure.

No power of sale out of Court.
2. Mortgage by Conditional Sale: water the mortgagor sells that property on condition:

Default of the payment he becomes absolute owner.

That on payment the is sale is void.

On payment the mortgagee should transfer to mortgagor, it means buyer transfers to seller.

It is transfer of ownership and possession.

There is no personal liability, unless expressly stipulated.
In this mortgage the mortgagor agreed to make over the property to the mortgagee by way of an absolute
sale and the mortgagee who was the ostensible buyer agreed to resell the property to the mortgagor at the
expiry of the stipulated period, the price being the loan advanced by him.
3. Usufructuary Mortgage: it is liked with the use of property. The essential are:

Delivery of possession to the mortgagee.

He is to retain possession until the payment of the money and to receive rents and profits or a part
thereof in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly
in payment of mortgage money.

Redemption when the amount due is paid by the mortgagor.

Remedy of the mortgagee is not by sale or foreclosure of the mortgaged property.
4. English Mortgage: where a mortgagor binds himself to repay the mortgage-money on a certain date, and
transfers the mortgaged property absolutely to the mortgagee but subject to a proviso that he will re-transfer
it to mortgagor upon payment of the mortgage-money as agreed.
5. Mortgage by deposit of title-deed: where a person transfer his immovable property deed to the
mortgagee for the purpose of securing the loan. It is on document, it is also called equitable mortgage.
Essentials:
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
A debt.

Deposit of title deeds.

An intention that the title deeds shall form security for the debt.
6. Anomalous Mortgage: a mortgage which is not simple mortgage, a mortgage by conditional sale, a
Usufructuary mortgage, an English mortgage, or a mortgage by deposit of title deeds within the meaning of
this section is called an anomalous mortgage.
Right of Redemption and foreclosure should be through the court with prior notice. And they are not
absolute right.
Gift
Gift Defined: Section 122: is transfer of certain existing movable or immovable property made voluntarily
and without consideration, by one person called the donor, to another called the donee, and accepted by or
on behalf of the donee.
In gift transfer of property is necessary, it means parties and property should be present. The
following are essentials of gift:
1. Transfer of property.
2. All types of property whether movable or immovable, tangible or non tangible.
3. Voluntary transferred no coercion or undue influence.
4. Without consideration, only consideration is love and affection.
5. Gift has to be accepted in the life time of doneer, if not accepted it would be void. On behalf it is
also possible to accept the gift.
S.123: Transfer how effected: for immovable property:
1. Written document.
2. Registration.
3. Attestation by two witnesses.
For movable property just document deed, and delivery of that property.
S.124: Gift of existing and Future property: if a person gift any existing and future property together, the
portion of future property will be void, not the whole document.
S.125: Gift to several that one does not accept: it is void as to the interest of the person who does not
accept, not the whole gift.
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S.126: When gift may be suspended or revoked: This section puts limitation for revocation of the gift. It
is not revoked easily. If at the time of gift both agree that gift may be suspended or revoked which is not in
the will of the doneer so it will occur. But for the will of doneer is void wholly or in part.
A gift may also be revoked in any of the cases in which if it were a contract it might be rescinded.
Illustration
A gives a field to B reserving to himself, with B’ s assent, the right to take back the field in case B
and his descendants die before A. B dies without descendants in A’ s life-time. A may take back the field.
A gives a lakh of rupees to B, reserving to himself, with B’ s assent, the right to take back at please
10000 rupees out of lakh. The gift holds good as to Rs 90000 but is void as to Rs 10000 which continue to
belong to A.
S.127: Onerous gift to disqualified person: a donee not competent to contract and accepting property
burdened by any obligation is not bound by his acceptance. But if after becoming competent to contract and
being aware of the obligation, he retains the property given, he becomes so bound.
S.128: Universal Donee: where a gift consists of the donor’ s whole property, the donee is personally
liable for all the debts due by and liability of the donor at the time of the gift to the extent of the property
comprised therein.
S.129: Saving of donations mortis cause and Muslim law: Mortis Cause: dying declaration. A gift in
competition of doneer immanent death. That gift is contract. And that is revocable. He has all the right to
take back. But the gift should be movable property. It is revocable. In Muhammadan law verbal gift (oral) is
also possible. So nothing in this chapter relates to gift of movable property made in contemplation of death
or rule of Muslim law.
Law of Evidence
II
Prepared by: Mohammad Ismail
Relevancy of Facts
Relevant Fact: According to Section 2 (2) one fact is said to be relevant to another when the one is
connected with the other in any of the ways refereed to in the provisions of this order relating to the
relevancy of facts. Relevant, strictly speaking means admissible in evidence. Erroneous admission of any
evidence does not make it relevant. It is used in two meanings, as admissible and as connected. Relevant
fact does not directly establish the fact in issue.
The relevancy is the matter of law, according to QSO. In England relevant is lift to the discretion of
the court, but in Pakistan relevancy has to be determined by QSO and be admissible as evidence. Anything
which is relevant it is admissible also, whatever not admissible mostly not relevant but there are some
exceptions for this because of some social family, policies, etc, such as communication of marriage; child
legitimacy is not relevant but admissible.
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Article 18: Evidence may be given of facts in issue and relevant facts: evidence may be given in any suit or
proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter
declared to be relevant, and of no others.
Explanation. This Article shall not enable any person to give evidence of a fact which he is
disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.
This Article determines the scope of relevancy. It gives the fact in evidence is the right of party not
the obligation of the party. The scope of relevancy from this Article is ‘ and of no other’ anything which is
not included under this chapter is not relevant. According to explanation if there is any conflict between
QSO and CPC so CPC will prevail, this article does not entitle any person to give any evidence in any fact if
he is disentitled by procedural law.
Here the fact in issue is mentioned and it is litigated fact, as mentioned in Article 2(3), and the
requirements are:
1. Dispute
2. Litigation in the court.
If there is no litigation then no fact in issue, so if there is denial by one party and admitting by the
other party so litigation starts and fact in issue are created.
Article 19: Relevancy of facts forming part of same transaction: Facts which though not in issue, are so
connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred
at the same time and place or at different times and places.
Transaction is a combination of facts so connected together as to be referred to by a single legal
name as a crime, and contract, a wrong or any other subject of inquiry which may be in issue. If facts are
such facts without which the whole cannot be understood. These irrelevant facts may be some time hearsay
evidence, they are not actually fact in issue but they are so connected that they are related to that transaction
without that they are not understood.
The object is to find the solution so for that the facts which are not related or facts in issue they are
also to be taken.
What are the limits and extend of this article? In what phoneme it can be interpreted? The
satisfaction of some person for understanding this thing varies from person to person, some are directly
jump to conclusion, but some conduct inquiry into many things and draw few conclusion. This is not the
exact limit but it can help to understand the limit of this article. Once if connection is established then the
other facts may form the part of the same transaction. The other activities are totally separate from the facts
in issue which that person does not participate by himself. The commonality of object is that connect each
other facts. To establish the gravity of the matter, unless once has gone though different activities in
consequences of these activities the matter happened, it cannot be determined or established.
Doctrine of Res Gestae: This Article is enacted the rule which in English textbooks is treated as Res
gestae. Res Gestae is broadly defined as matter incidental to the main fact and explanatory of it, including
acts and words which are so closely connected therewith as to constitute a part of the transaction and
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without a knowledge of which the main fact might not be properly understood. What is the statute of the
fact whether the main fact is not understandable without it, so the use of this Doctrine has given rise to four
confliction conceptions.
1. One which applies the term Res gestae to the main fact in relation to its constituent details.
2. One which applies to the detail of the fact merely.
3. One which is applied with the surrounding circumstances of some central facts.
4. One which applied with the holistic concept of Res gestae.
It is therefore suggested that this outlandish phrase should be deleted from English Legal
nomenclature. We cannot understand the formula for determining but there are some suggestion and
recommendations:
1. Unity of place.
2. Commonality of purpose.
3. Continuity of the action.
But there may be proximately of time and place brings or continuity of the acts brings that acts and
that is par of the same transaction. All are not supposed to co-exist. Conditions for admissibility: There are
certain basic requirements for different acts, in order that the chain of such acts may constitute same
transaction they must be :
1. Connect together by proximate of time.
2. proximity or unity of place
3. Continuity of the action.
4. Community of purpose or design.
The statements which are admissible under this Article do not come under the rule of hearsay
because, as has been aptly remarked in such cases it is the act that creates hearsay, and not the hearsay the
act.
A statement of a raped woman is relevant under this Article if the statement is so connected with
here rape as to constitute a part of the transaction of rape.
Article 20: Facts which are the occasion, cause or effect of facts in issue: Facts which are the occasion,
cause or effect, immediate or otherwise, of relevant facts, or facts, in issue, or which constitute the state of
things under which they happened, or which afforded an opportunity for their occurrence or transaction are
relevant.
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Where the fact in issue is whether the accused had committed the murder of he deceased the fact that
the accused had taken money and ornaments from the deceased and that the deceased had on the day of his
murder, gone to he accused to demand the money and ornaments are relevant facts showing occasion, cause
or effect of the fact in issue.
Whether A murdered B, marks on the ground, produced by a struggle at or near the place where the
murder was committed are relevant facts.
Article 21: Motive, preparation and previous or subsequent conduct: 1. any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue or relevant fact.
2. the conduct of any party, or of any party, or of any agent to any party, to any suit or proceeding, in
reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent
thereto.
Under this Article the motive which induces a party to do an act or the preparation which he makes
in its commission, will be taken into account. Evidence of motive or preparation becomes important when a
case depends upon circumstantial evidence only. The reason of conduct or the act that why a person do
something? Motive and intention are also relevant. The motive has no impact responsibility but can narrow
down the circle of investigation (The investigation starts that whom will be benefited by the act?)
specifically in police inquiry. Such as start running from police is relevant. A person who washes a way the
evidence and just jump to the conclusion is also relevant. The sufficiency of motive is also not relevant
because motive of every person is different. The motive has to be seen from the very angles of that person
who possesses that motive. Motive is defined as cause or reason that moves the will and induces action.
Difference between motive and intention that motive any reason or justification to do something, and
intention is a will, desire for doing something. The same way preparation is also relevant and at least
provides guideline for the purpose of investigation. It is not necessary that preparation is wholly relevant
some times a person prepares but the act is done by some one else, so it is not relevant. It is not definitely
relevant. It is however admissible in evidence if it is combined with other evidence but in isolation it is not
relevant.
1. Preparation may be for fact in issue or for relevant fact.
2. The conduct of party or agent is relevant whether to the suit or to fact in issue in that suit in
proceeding. The requirement for the relevancy of the conduct is necessary that if either by party or
agent of the party. And this conduct must be reference to :
a. The suit or proceeding.
b. Fact in issue in that suit or proceeding.
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c. Fact relevant to the fact in issue in such suit or proceeding.
3. Either it is influences by such conduct or influences the conduct such as A person hear crying that
the police came so he starts to run a way. And it is relevant and influences the fact in issue.
4. Whether it is previous or subsequent to the suit or proceeding, so it is immaterial. The only fact to be
seen is only the fact in issue. Such as if he hears that police came to arrest and he runs away. So this
is subsequent conduct of him shows relevant of the fact.
Relevancy of conduct may influences the fact in issue such as A murdered B, but A is unknown and A
runs away when he sees the police so his conduct is relevant because his conduct influences the fact in issue
or influenced by fact in issue.
If the conduct is regarded as:
1. Suit + proceeding.
2. Fact in issue. (Suit)
3. Relevant Fact (Proceeding). So it is called independent conduct.
Illustrations
a. Extortion and blackmailing is a motive that takes the other person from his way.
b. A suit B, B on those days was in need of money so it is relevant the he took money because it is his
strong motive that he had borrowed money even no one saw him executing money.
c. A try to Murder B by poison. Before the death of B, A procured poison similar to that, so it is
preparation.
d. The question of certain documents is the will of A, the preparation which was made such as draft,
approve are relevant to that fact that documents are will of A.
e. A is accuse of a crime, so concealing of evidence, preventing the presence or procured the absence
of person who might have been witnesses or suborned person to give false evidence respecting it is
relevant, because of preparation + conduct.
f. A robbed B, C says that police came to arrest the robber so A ran away, are relevant, so it is
subsequent conduct of him.
g. Whether A owed B rupees 10,000. The fact that A asked C to lend him money and that D said to C
in A’ s presence “ I advice you not to trust A” , and A went away without making any answer are
relevant facts. Because conduct, if not then he would not remain silent.
h. A committed a crime. The fact that A absconding after receiving a letter warning him that inquiry
was being made for criminal, are relevant because of his conduct.
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Article 22: Facts necessary to explain or introduce relevant Facts: Facts necessary to explain or introduce a
fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant
fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place
at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any
such fact was transacted, are relevant in so far as they are necessary for that purpose.
The fact cannot be said that it is evidence but it has holistic view of understand the case. These facts
explain or introduce that how these facts happened. This is a fact in which helps you in identification of an
issue. Such as the facts which identify the time. Ti may be part or contribute the proof. This is a general
formula or rule which ha been given in this Article.
Many standards have been given to designate the relevant fact. It is necessary to see these facts
which are admissible, they are as follow:
1. It is the fact which introduces a fact in issue; explain origination of the fact or relevant facts.
2. Facts which support or rebut or interference suggested by a fact in issue or relevant facts‫ ك‬are
relevant. Exp: if a person accused of an offence absconds, his conduct shows that he is concerned in the
offence. Therefore, anything which tends to rebut the inference suggested by his flight becomes relevant
under this section.
3. Facts which establish the identity of a person. When a party’ s identity with an ascertained person
is in issue, it may be proved or disproved not only by direct testimony, or by opinion evidence, but
presumptively, by similarity or dissimilarity of personal characteristics, such as age, height, hair,
complexion, voice, bearing, manner, address, distinctive marks, faculties or peculiarities, residence,
occupation, etc. Exp: there are some signs of a person that can be used as the relevancy. Eye witness,
hearing of voice or looking to the figure of that person who is expert or foot prints, finger impression all
things helps in identification of the person, so many things can be brought under this.
4. Facts which is helpful for fixing time; such as time for murder, and that post mortem report can be
relevant.
5. Facts which fix the place, such as death body in somewhere and murder place or other, so to
determine that place anything can be relevant and can be presented and would be relevant. Such facts are
obviously admissible as introductory, or explanatory, or on the Res gestae principle.
6. Facts which shows the relation of the parties; such as relation of partnership or conspiracy,
relation of agency. Exp: DNA report for denying the legitimacy of parent. Father and child relationship can
be established. So every part of this Article is Formula, and no specific and precise fact is shown that this
standard can be helpful for that.
The conclusion which was taken from some facts can be rebutted by other facts. What ever
establishes the identity that is relevant fact. Video Record is relevant and there are laboratories that can
prove, but that is not some much reliable, because development of animation that convert man to other
class. And as such identification through beard is simply that is not reliable; it is never safe to rely on the
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identification of a person by his voice or beard. Identification by voice is a weak type of evidence, not
sufficient for giving an affirmative finding as to identity of accused. One is always liable to make a mistake.
To recognize a person in a pitch dark night merely by the modulation of his voice is a very difficult affair,
and such evidence alone is not a sufficient corroboration of the approver’ s story as to the identity of his
accomplice. Identification of marked footprints is a very weak type of evidence and carries no weight by
itself. Track evidence is useful if coming from an expert who has taken precautions to preserve footprints by
preparing moulds, etc.
Article 23: Things said or done by conspirator in reference to common design: where there is reasonable
ground to believe that two or more persons have conspired together to commit an offence or an actionable
wrong anything said, done or written by any one of such persons in reference to their common intention,
after the time when such intention was first entertained by any one of them, is a relevant fact as against
each of the person believed to be so conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it.
This is just an enabling article; facilitation has been provided for investigator. How to determine that
conspiracy has taken place? And who was? What happened to the result of conspiracy? It is very difficult to
prove and it would be difficult to prove and understand all the facts and transaction is related. It is possible
when the relationship is established between the partners of that conspiracy. Exp: bomb blast, so in isolation
it is difficult to determine but behind that there are many people who are controlling this. And for that
person there must be establishment of relationship between two or more person. Once if there is prima-facie
evidence that an act is done by two or more persons illegally and they have been assigned different tasks
and they want to do their job, every one of them use their efficiencies so it would be difficult to establish the
relation of all of them. And would be difficult to detect the main master mind behind this conspiracy.
If an idea of conspiracy has been established and relation of agency has been created so in agency
every one is agent of other (personally as a principle and agent of other) other people became employees so
as principle of agency every one is liable and all the activities become under conspiracy. It is relevant fact
against each of the persons believed. There are some conditions and qualification that must been seen:
1. Reasonable ground to believe that the conspiracy has been entertained (before conspiracy anything
is not done) it must be done, write, said after entertainment of the idea before that there is no
relationship of agent. Means prima facie evidence must be there.
2. That must be done in common intention, or design of that conspiracy. so it would be relevant fact
(anything said, done, or written by one of them in reference to their common intention will be an
evidence) and it can be used for three purposes:
i. as against each of the person to be conspiring.
ii. for the purpose of existence of conspiracy.
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iii. It can be shown that any person is party to that conspiration, means that it would also be relevant
for the said purpose against another who entered the conspiracy whether it was said, done or written
before he entered the conspiracy or after he left it.
Conspiracy consists in a combination and agreement by two or more persons to do some illegal act,
or to effect a legal purpose by illegal means, the conspiracy is complete as soon as two or more persons
agree to do any unlawful or illegal act that amounts to an offence. Conspiracy is an offence, it is not a
qualification, and it is not just related to the state, every criminal act which is done under the above
conditions.
Article 24: When facts not otherwise relevant become relevant: Facts not otherwise relevant are relevant1. If they are inconsistent with any fact in issue or relevant fact; 2. If by themselves or in connection with
other facts they make the existence or non-existence of any fact-in-issue or relevant fact highly probable or
improbable.
It is a general article that covers many issues. Two general formulas are here: if facts not otherwise
relevant are relevant:
1. The fact is inconstant with each other. If relevant facts clash with each other, what would
happen? Exp: one person cannot be present in two places at one time. So you have to reject both
of them, but the fact which support the accused is more relevant because the person is innocent
unless proved. exp: some one committees a crime, fact in issue or he was seen preparing the
crime, the time which the offence occurs he is seen in other place.
2. There are things which prove the things or increase the probability or increase the possibility that
is also relevant.
Such as in illustration (b) it is shown that A committed a crime, the circumstances are such that the
crime must have been committed either by A, B, C, and D. every fact which shows that the crime could
have been committed by no one else and that it was not committed by either B, C, or D is relevant. So
connection of so many probabilities and rational and then analyzing all probabilities and at last that would
be relevant. It is the process of illumination ‫ ك‬.‫ السبر كو كالتقسيم‬Such as bad character man increases the
probability of committing the offence, but according to this Article that bad character cannot be given as
evidence, because of prejudice of his mind of judge, he will see to the suit as his character. The character
evidence cannot be produced to establish any accused. The character cannot be given in proving the guilt.
But the other party can show or prove bad character and that can be relevant.
Inconsistent: example: accused of rap but the person show by medical check up that he cannot do
such transaction (sexual transaction) so it is inconsistent with the fact of rape so it is relevant.
Facts not otherwise: the facts which are not relevant under other articles may be relevant under this
article, but fact may be irrelevant under this article and may be relevant under other provisions.
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Prove of Alibi: the theory of alibi is that the fact of presence elsewhere is essentially inconsistent
with presence at the place and time alleged, and therefore, with personal participation in the act.
The requisites of a satisfactory alibi are:
1. That it should be pleaded at the earliest opportunity: means that the person should not be present
at the time where the offence occurred.
2. That it should cover the time of the alleged offence; means that the place where the person was
that the place be in such a distance that it would take time to come in the place where the offence occurred.
Article 25: in Suit for damages facts tending to enable court to determine amount are relevant: in suits in
which damages are claimed, any fact which will enable the court to determine the amount of damages
which ought to be awarded, is relevant.
This article enables the court to admit any facts which will help it to determine the amount of
damages which ought to be awarded to a party. When damages are claimed in a suit, the amount of damages
is a fact in issue. Damages are the pecuniary satisfaction which the plaintiff may obtain by success in an
action. They are limited to the loss which the plaintiff has actually sustained. Exp: a person claim to have
business statutes in the society what ever effect the amount of claimed is relevant, he may show his statute.
It can be applicable in damages for defamation, it is not just in tort or defamation, but it is general rule.
Article 26: Facts relevant when right or custom is in question: where the question is as to the existence of
any right or custom, the following facts are relevant:
a. any transaction by which the right or custom in question was created, claimed, modified, recognized,
asserted or denied, or which was inconsistent with its existence.
b. particular instances in which the right or custom was claimed, recognized or exercised, or in which its
exercise was disputed, asserted or departed from.
The question regarding any right or custom. Exp: the question whether it is existed custom or not
then the above facts are relevant.
Right is general and custom is all types of custom not strict but should be general. There are many
requirements for the customs such as reasonability, constant, moral, long time, rational, beneficial and for
time to far, and many other characteristics and requirements of a custom.
It is a general practice; it would be even not from the time immoral. It might be for specific area or
specific people.
Example of Para (a) that if there is an issue regarding right or public a party who believes its
existence he present such a transaction which claim, modify, recognize, the person who denies may show
nay transaction which is inconsistence with the custom or right so there must be some transaction in which
it was recognized or denied. In which it was inconsistent. All these facts are relevant.
Transaction generally means dealing between two people or more, but it is something which is done
in s. 19, that sort or transaction which is specified such as transaction of sale. It is cleared from illustration
that right of fishery is an individual right.
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Article 27: Facts showing existence of state of mind, or of body or bodily feeling: Facts showing the
existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or
goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are
relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.
Explanation 1: exp: in a case of accident as result of rashness or negligence which is in mind, if we says he
generally drives negligently is not relevant, but in a specific event it must be shown that it was negligently,
generally statement regarding his negligence in most of his affairs are not sufficient ground for relevancy. It
must be shown in specific even.
Explanation 2: if a previous conviction become the relevant so it shows state of mind that previous
conviction shall be relevant. Something which prejudice, scandalous the mind of judge will not given in
evidence and cannot be relevant. Ilstrtn: a to f, i, l, n, p.
Article 28: Facts bearing on question whether act was accidental or intentional: when there is a question
whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that
such act formed part of series of similar occurrence in each of which the person doing the act was
concerned is relevant.
Where it is uncertain, whether an act was done with a guilty knowledge or intention or whether it
was innocent or accidental proof that it formed one of a series of similar acts raises the presumption that the
act in question and the others, together forming a series were done upon system and were therefore not
innocent or accidental.
This Article is covered under 27, when state of mind comes than what ever it covers state of mind
will be relevant. This article gives mode of prove of state of mind. Example: a person hates another person
with his car; whether it is intentional or accidental? If it is proved that previously he hated (series) that one
person this fact shows that it is intentional these series which show similar accident is relevant. The series of
similar occurrences will show intentionality. The one occurrence may be intentional and series as well so
this article provides the working rule that there is presumption that the first act is accidental and the series of
acts similar of that show that it is intentional and not accidental.
Illustration (b), example: the collector of rent of house, once it is shown that he received the amount less and
the entry was less. This false entry which he actually received the money is the quoins of accidental or
intentional? The facts that other entries are also false so it will be in favor of the other person.
Article 29: Existence of Course of business when relevant: when there is a question whether a particular
act was done, the existence of any course of business, according to which it naturally would have been done
is a relevant fact.
Course of business means any design, plane, procedure. It also raises a presumption, on the bases of that
course of business, so it could be presumed that some acts happened. Example: put letter in box of post, the
course of business is that within three days it would be reached.
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The presumption of course of business is occurred in order and when that order is followed and that
infers that something happened. Example: somebody jumping from Menar of Faisal Mosque and we did not
see him that he came to earth, we can presume that he has died until otherwise proved.
The course of business must be distinguished from the habit of the person, example: if any person
says that any other is bad and the second person denies it on the bases of his presumption of good character
of that person.
This article applies to the course of business followed in public offices as well as to the general
practice followed in private offices and employments as distinguished from the person habit of individuals,
or mere usage in a private house which, however methodical, cannot carry the same weight as the ordinary
routine of an office.
Admission
Article 30: Admission defined: An admission is a statement oral or documentary, which suggests any
inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the
circumstances, hereinafter mentioned.
What is admission, its kinds, the weight of every kinds of admission? Who are the person whose
statements are accepted as admission? What are the circumstances? These questions have to be answered
through out sections 30-45.
Definition of admission: there is technical definition of admission and confession. Admission is
acceptance, is admit of something which goes against some one. If it is out of the court, it cannot be said
admission. It is the matter under litigation, and it gives conclusion on the matter of issue, the requirement of
proving is dispensed by admission. Once admission is proved to be true than it is impossible to re-traction
from that admission easily.
There is another kind of admission which out of the court that may be admission as in Hearsay
(report of some one else, so that is not admission) example: if I say that I hate some one, it means that it is
implied admission that he is inference to that person, this sentence has no place before the law as admission.
Admission is regarding civil case and confession is in criminal cases. This is a clear line difference between
these two.
Admission is:
1. It is a statement of fact not the law.
2. No need or production of evidence in admission, it removes the evidence.
The definition in QSO is different, it is actually the same but it has been framed as such that it is not
admission. Statement through electronic form is also admission. There are some requirements for admission
in Article 30:
1. Admission is statement whether oral or documentary. The conduct is excluded.
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2. Statement must suggest inference to any fact in issue or relevant fact, example: A owes B such
amount the other denies, so there is no such fact in issue and relevant fact. There must be fact and
admission must lead to resolution of that fact. If there is no link or connection between them it
cannot be admission. Example: I allege that some one broke my car; the other says I killed his horse,
so it does not suggest inference in fact in issue. The assertion is something and fact is something else
so it is not admission to that fact in issue.
3. It must be made by any person.
4. Must be made in circumstances in order.
5. It can be in electronic form.
Article 31: Admission by party to proceeding or his agent, etc:
1. the statements made by a party to the proceeding, or by an agent to any such party, whom the
court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make
them, are admissions.
2. the statements made by the parties to suits suing or sued in a representative character, are not
admissions, unless they were made while the party making them held that character.
3. The statements made by –
a. persons who have any proprietary or pecuniary interest in the subject matter of the proceeding,
and who make the statement in their character of persons so interest; or
b. persons from whom the parties to the suit have derived their interest in the subject matter of the
suit,
are admissions if they are made during the continuance of the interest of the persons making the
statements.
1. a. statements of both the parties are admission.
b. statements of agents of the parties, such as pleader but it is upon the court, are admissible. It must
fulfill the two requirements in Article 30.
2. Example: if a person is a director and his co-director sues or sued and make an statement in his
representative character so this statement may be regarded and it must be made at the time when he is in that
post in representative character, if after the post he makes an statement it is not admission. Same is in the
case of guardian, executors, administrative.
3. a. example: co-owner, partner in business, joint contractor in a business or property, the subject matter is
one and same if one of the co-owner admits any liability so that statement may be regarded as statement of
others. The condition is that statement must be made when he is joint owner in that party.
b. exp: A purchasing a property from B, that property became the subject matter of dispute with other, B
after selling gives a statement it is not admission, but before he sells if he gives any statement to a so it is
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admission. The condition is that it must be during the continuances of that interest (selling), not after the
selling.
This Article lays down five classes of person who can make admission:
1. Party to the proceeding.
2. Agent authorized by such party.
3. Party suing or sued in a representative character making admission.
4. Person who has any proprietary or pecuniary interests in subject matter of proceeding.
5. Person from whom the parties to suit have derived their interest in the subject matter of the suit
during the continuance of such interest.
Article 32: Admission by persons whose position must be proved as against party to suit: statements made
by persons, whose position or liability it is necessary to prove as against any party to the suit, are
admissions, if such statements would be relevant as against such persons in relation to such position or
liability in a suit brought by or against them, and if they are made whilst the person making them occupies
such position or subject to such liability.
Sometimes the position or statutes of other person is the subject matter of the suit. Example: A being
collector of rent on behalf of B, if B says why you did not collect the rent of such house, A says he was not
under liability so it became the matter of dispute, so the position or statute of A is disputed, his statement
will be admission. If he says that he was liable so his statement will be admission.
In this article the statement of a person is admission if they:
1. Would be relevant as against such person in relation to such position or liability in a suit brought by
or against them.
2. Were made whilst the person making them occupied such position or was subject to liability.
Article 33: admission by person expressly referred to by party to suit: Statements made by persons to whom
a party to the suit has expressly referred for information in reference to matter in dispute are admissions.
This article forms another exception to the rule that admissions by strangers to a suit are not
relevant. Under it the admissions of a third person are also receivable in evidence against, and have
frequently been held to be in fact binding upon the party who has expressly refereed another to him for
information in regard to an uncertain or disputed matter.
Example: if A sold a car and after one week the person came and says that there was fault and A
says that was not in my use, it was in use of B, if B gives a statement that there was a fault so that would be
same as statement of owner and admission.
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Article 34: Proof of admissions against persons making them, and by or on their behalf: admissions are
relevant and may be proved as against the person who makes them or his representative in interest; but they
cannot be proved by or on behalf of the person who makes them or by his representative in interest, except
in the following cases:
1. An admission may be proved by or on behalf of the person making if, when it is of such a nature
that, if the person making it were dead, it would be relevant as between third persons under Article
46.
2. An admission may be proved by or on behalf of the person making it, when it consists of a statement
of the existence of any state of mind or body, relevant or in issue, made at or about the time when
such state of mind or body existed, and is accompanied by conduct rendering its falsehood
improbable.
3. An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than
as an admission.
This Article lays down as a general rule that admissions are relevant and may be proved against the
person who makes them or his representative in interest, and if duly proved, though not conclusive, is
sufficient evidence of the facts admitted.
The question whether the admission by the person, it can be used in the favor of that person? The sole
spirit of admissibility is that statement given against the person who admits it. Admission is two kinds
expressly and impliedly. Informal admission is that not in the from of the court so it is not relevant and not
accepted. If the admission is against the favor or oppose that person who admitted that is acceptable and
relevant.
The ordinary rule of inadmissibility of admitted fact is a rare and excepted case as in the following
cases, means that the admission in once favor can be admission or relevant in the following cases:
1.
This is just imagination and supposed that he is death and this statement is relevant under A 46
between third person, means that statement is made admissible that is lost, there was no design in
mind that some time in future it will occur. Example: if it is the question that whether you
complain against your company, and the statement are made and they are use, company denies
and you don’ t want to have anything, so your own statement can be used in favor of you. See
Illustrations b and c.
2.
the statement is such that consist the existence of mind such as pain, headache, etc, and that
statement about the state of mind or body has relation with corresponding body conduct that he is
true in his statement. If not than it could be rebutted by the conduct. So it means the state of a
man’ s mind or body is relevant under this article and statement narrating such facts indicating
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the state of such statements should have been at or about the time which such state of mind or
body exists. See Illustrations d and e.
3.
If it is otherwise relevant under other provisions of QSO. This exception lays down that facts
which are relevant under other articles of this ordinance will not be rendered inadmissible
because they may be proved on behalf of the person making them. See Illustrations d and e.
Illustrations: a. you cannot say for any disputed property that is my property. It is the general rule that
admission is in favor of any person who says it is not accepted.
b. if any person performing his duty so presumption is in his favor that he cannot do conspiracy.
Presumption is also that he is doing his duty.
c. because the time was when he writing the letter there was no litigation dispute so what ever is written by
him on that time can favor him. It is an admission.
Article 35: When oral admissions as to contents of documents are relevant: Oral admission as to the
contents of a document are not relevant, unless and until the party proposing to prove them shows that he is
entitle to give secondary evidence of the contents of such document under the rules hereinafter contained, or
unless the genuineness of a document produced is in question.
Oral admissions as to the contents of a document are excluded under this Article. They are however,
admissible when the party is entitled to give secondary evidence of the contents of such document under
Article 76 and 77. Such admissions are also admissible when the genuineness of the document produced is
in question.
Oral admission is as such as oral evidence, so it is not relevant, when the genuineness of document is
in doubt so then it must be proved first then it can be regarded as relevant. The best evidence rule is
applicable thought the case. It is upon the judge to see which best evidence is to be presented.
Article 36: Admission in Civil cases when relevant: in civil cases no admission is relevant, if it is made
either upon an express condition that evidence of it is not to be given, or under circumstances from which
the court can infer that the parties agreed together that evidence of it should not be given.
In civil cases no admission is relevant if he compromise or in such circumstance which the court
thinks that the party agreed to give evidence so it is not admitted and relevant. Admission on part of a
person who compromise is an implied admission, if the transaction is such that any one admit claim and he
compromise with plaintiff so it is sensed by the court, as a compromised admission so it is not accepted as
evidence.
This article lays down that in civil cases an admission is not relevant when it is made:
1. Upon an express condition that evidence of it is not to be given.
2. Under circumstances from which the court infers that the parties agreed.
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Article 37: Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding: a
confession made by an accused person is irrelevant in a criminal proceeding, if the making of the
confession appears to the court to have been caused by any inducement, threat or promise having reference
to the charge against the accused person, proceeding from a person in authority and sufficient, in the
opinion of the Court, to give the accused person grounds which would appear to him reasonable for
supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.
The word confession has not been defined any where in the ordinance. But confession is defined as,
“ an admission made at any time by a person charged with a crime, stating or suggesting the inference that
he committed that crime” . Confession being a spice of admission are admissible under the law of evidence
and can be used against the maker proved his statement was made at the time when his poison was that an
accused person without any inducement, treat or promise and amounts to confession of his guilt. It is a
direct statement of the accused either acquitting the guilt or acquitting the facts which constitute the offence.
It is also against the interest of the person who makes it. The confession must be voluntarily, a confession
which is voluntary, is admissible in evidence even though it may be incorrect in its contents. A confession
which not voluntary, is not admissible though it may be true, whether a confession is voluntary and true is a
question of fact and is to be determined keeping in view the attending circumstances of each case. In
England confession is also an admission, the confession is expressly made but admission can be impliedly,
and the big difference under Pakistan law that confession is in criminal case and admission is in civil case
but generally used in both. Two types of confession are there:
1. Judicial Confession: the confession which is made before the court. A confession which is made and
recorded in the court of a committing Magistrate and materials already in the possession of the
police may be used for the purpose of corroboration.
2. Extra Judicial Confession: not before the court but later on shifted to the court. It can form a basis
for conviction if found voluntary and true.
History of Confession: the confession was made at the beginning before the police officers and later on
shifted to the court because of corruption of the authority of police and use of shortcut ways. And the
confession before a police officer was made irrelevant and inadmissible because that it was made by torture.
Confession must be made voluntarily; any thing which interferes with voluntarilyness makes the
confessional statement inadmissible. But there are certain exceptions.
There are some circumstances and requirement for confession to be admissible:
1. Confession must be made by accused person.
2. It must be made in criminal case.
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3. It must be made voluntarily. Inducement, threat or promise make confession inadmissible because it
disturb the voluntarily confession. And these circumstances must refer to the charge against the
accused.
4. The accused must decide that the officer is in authority. But the court will decide that whether this
authority is relevant to the mind of that person or not (it is the accused according to his thinking
whether person in author or not) decision will be by the court according to the mental level of the
accused person.
5. If it was made under threat, promise or inducement, he must be supposed that he will gain because
of this confessional statement any advantage such acquittal or avoid any evil. But if he does not than
his confessional will be admissible.
The accused has to show in order to inadmissible the confession the below:
1. That confession made by accused in criminal case.
2. That it was made by him at the time when his position was as the accused person. If he speaks before
his accusation than it would be admissible.
3. That the statement caused by inducement, threat or promise.
4. That the inducement promise or threat was held out by a person in authority.
5. That the inducement, promise or threat had reference to the charge and dare him reasonable grounds
for supposing that by making the confession he would gain any advantage or avoid any evil of
temporal nature in reference to the proceeding against him.
Article 38: Confession to police officer not to be proved: No confession made to a police officer shall be
proved as against a person accused of any offence.
Under this article the confession made to a police officer is in admissible in evidence except so far as
is provided by Article 40. It is because that the confession is made untrustworthy, and the broad ground of
this is that to avoid the danger of admitting false confessions. And the object of this Article is to prevent the
practice of torture by the police for the propose of extracting confessions from accused persons. The police
officer act 90 % on presumption and 10 % on evidence. But when evidence comes it rolls over the
presumption. Example: if A claims amount over B, and presumption is that B has not taken any amount
until the witness or evidence or testimonial evidence is given than relief will be granted to A. and the
evidence by itself is a presumption. The immediate result is the result of corruption practices of taking the
confessional statements. The rule says that any confession to the police officer means that the test is to
whom it is made? If to police officer, even if magistrate is present it is inadmissible. But confession to a
magistrate even the police officer is present is admissible. A person who is making confession he must be an
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accused person. If he is not accused to an offence and make confession, and this does raise to presumption
of reliability, so it is admissible. Police officer means ordinary police, the term not be read in a strict
technical sense. Every police officer can be a police officer.
Article 39: Confession by accused while in custody of police not to be proved against him: Subject to
Article 40 no confession made by any person whilst he is in the custody of a police officer, unless it be made
in the immediate presence of a Magistrate shall be proved as against such person.
Under this Article no confession made by a person in custody to any person other than a police
officer, shall be admissible, unless made in the immediate presence of a Magistrate (means that Magistrate
hears him directly, intentionally he wants to know the confession of that person) but just the presence of
magistrate without the intention to hear from him is not enough. The main difference between the above two
articles are that confession in any circumstances to a police office is not admissible.
Article 40: How much of information received from accused may be proved: When any fact is deposed to
as discovered in consequence of information received from a person accused of any offence, in the custody
of a police officer, so much of such information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.
How much information can be proved? The basic principle of not admitting in the form of
confession is inadmissible to police officer. And it is not admitted, but what if the statement is proved with
some other materials? If the statement causes the discovery and that discovery explains the truthfulness of
statement so it is admissible to that extend. This article is an exception to the general rules of Article 37 and
38 that confession to police officer is in admissible.
In English law confessional statement to the police officer is still admissible, but in India it was held
that A 40 is exception to the other rules of inadmissibility.
The person must be accused and also in custody of police, if not then that is admissible, because it is
voluntarily and free confessional statement.
Discovery which comes into existence because of information there must be relations between these
two, meant that the discovery is the result of the information given by the accused to the police officer.
If the accused points out anything such the place of the offence, it is not discovery therefore it is not
the statement and not admissible, but if there is anything in the place that show that the offence is
committed here so those things are discovery.
Article 41: Confession made after removal of impression caused by inducement, threat or promise relevant:
if such a confession as is referred to in Article 37 is made after the impression caused by any such
inducement, threat or promise has, in the opinion of the Court been fully removed, it is relevant.
If confession was obtained through threat, promise or inducement (because they are involuntarily)
and those impression is fully removed, the accused made a confession after the removal of threat, promise
or inducement, therefore the statement will be considered as voluntarily and it would be admissible and
relevant. That must be decided by the court that no sign of threat, promise or inducement remained.
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Article 42: Confession otherwise relevant not to become irrelevant because of promise of secrecy: if such a
confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise
of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it,
or when he was drunk or because it was made in answer to questions which he need not have answered,
whatever may have been the form of those questions, or because he was not warned that he was not bound
to make such confession, and that evidence of it might be given against him; provided that the provisions of
this article shall not apply to the trail of cases under the laws relating to the enforcement of Hudood.
The basic requirement is that confession must be made free, keeping in view this requirement and all
other conditions which is not specifically mentioned such as psychosocial problems, fraud, drunk, and other
reasons are not acceptable and confessional statement is admissible, provided in Hudood cases.
The difference between this Article and Article 37 is that here the promise is to keep that
confessional statement secret and in Article 37 the promise relates to the charge.
A relevant confession does not become irrelevant because it was made:
1. under a promise of secrecy.
2. In consequences of deception practiced on accused.
3. When accused was drunk.
4. In answer to questions which the accused need not have answered.
5. In consequence of the accused not receiving a warning that he was not bound to make it that it might be
used against him.
Article 43: Consideration of proved confession affecting person making it and other jointly under trail for
some offence: When more persons than one are being tried jointly for the same offence and a confession
made by one of such persons is proved:
a. Such confession shall be proof against the person making it; and
b. The court may take into consideration such confession as circumstantial evidence against
such other person.
If through any confession points some other person with him as accomplice. wills his confession go
against others? There are two types of person in this case: one who is co-accused. And the others who do
not accused.
Article 43 says that such confession will be proved against him. And the court will consider against
others, but corroborative evidence is needed to prove. And it is necessary that they are jointly tried with him
in same offence, if not then not applicable.
A.44: Accused person to be liable to cross-examination: all accused person, including an accomplice shall
be liable to cross examination.
Historically the accused person was not liable to cross-examination. His statement was normally
untrustworthy, and he is not competent or compellable witness to give evidence for or against him. Provided
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that no oath shall be administered to the accused and that the magistrate shall examine him in the discretion.
But there are situation that there is no single witness and his statement should be considered as an evidence,
and be liable to cross examination, because cross examination is mechanism to bring out the truth. This
article is related broadly to informal admission (out of the court). He could, however, not be called as a
witness except on his own request and his failure to give evidence would not raise any adverse presumption
nor be made subject to any comment by the prosecution against him. Under this article there is no limit
prescribe for the cross examination of him.
Article 45: Admission not conclusive proof but may estop: Admissions are not conclusive proof of the
matters admitted but they may operate as estoppel under the provisions hereinafter continued.
Confession is to be taken as proof against the person who made. And admission is as such to be
taken as proof. It is the most powerful evidence, but admission is not a conclusive evidence means (that the
party against whom is made he cannot rebut it). It means that the person who make it he can rebutted by
explanation, the situations that such statement is made by him such as fraud, mistake of fact, etc. so the
person can rebut it because it is not conclusive proof. Bad also it may be said as an estoppel, if it is rebutted
then it cannot be said as admission, but it can be taken as an estoppel.
Admission whether written or oral are not conclusive of the matters admitted, although they are
good evidence against the party making them. A party to a suit is bound by the pleadings which he delivered
in the suit. An admission by a party is of considerable weight as evidence against him and may, if
unexplained be even decisive.
The law of estoppel is thus stated in the ordinance that “ when one person has by his declaration, act
or omission intentionally caused another person to believe a thing to be true and to act upon such belief,
neither he nor his representation shall be allowed, in any suit or proceeding between himself and such
person or his representative, to deny the truth of that thing” . In every case of estoppel there are
representation and consequently an admission of the existence of a fact, and if this admission is accepted
and acted upon by the person to whom it is made, its maker cannot be permitted to show that the admission
he made was false. But, except where an estoppel can be founded on it, an admission is no more than a
relevant piece of evidence; more or less weighty according to circumstance but not conclusive. Therefore a
person who has made an admission may show that he made the admission in ignorance or under a mistake
and the admission was in reality untrue. He may even show that the admission was made with a fraudulent
purpose.
Article 46: Cases in which Statement of relevant fact by person who is dead or cannot be found, etc is
relevant: refer to the article for text of provision.
This article explains that certain person who cannot be called as witness and those who are lost,
death or loss capability if one’ s used their testimony just their statements are brought to the court not by
that person himself. What ever is reported by the person is secondary evidence, and falls in the category of
hearsay evidence. A person whose statement cannot be cross examined that is hearsay evidence and that is
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taken under the presumption of hearsay evidence. This article is an exception to this general rule of hearsay
evidence.
The general rule is that the best rule requires that the person who gives witness must come to the
court and be subject to cross-examination and finally if truth is cleared or shown that would be reliable. But
the statement of a person is brought to the court under any circumstance that is hearsay evidence but U/A 46
there are some exceptions that hearsay is also reliable and as exception to that general principle. .the main
object is to detect the true statement of the witness. If the same truth is shown by prescribing some
conditions so it could be reliable upon by the person who:
1. Is dead.
2. Not found.
3. incapable
4. Whose attendance cannot be procured without delay or expenses of amount are relevant under
the following conditions.
Circumstances in which the statement of the above persons are relevant:
1. When it is relates to cause of death: a statement given by a person as to the causes of death or
circumstances resulted to the cause of his death. That statement is the matter in issue. If it does not
become the fact in issue, so it will not be relevant. It is necessary that those causes must be the fact
in issue, whether he was excepting the death or not but he gave those statements before his death.
Why it is immaterial? Because we don’ t have any machine to check whether he was expecting the
death or not so it is immaterial. It is presumed that he gives statement in the circumstance in which
the person will not till lie. And the nature of proceeding is also immaterial; it may be criminal or
civil as inheritance. Illustration (a)
2. when it is made in course of business: when the statement was made by such person in the ordinary
course of business, and in particular when it consists of any entry or memorandum made by him in
books kept in the ordinary course of business, or in the discharge of professional duty, or off an
acknowledgement written or signed by him of the receipt of money, goods, securities or property of
any kind, or of a document used in commerce written or signed by him or he date of a letter or other
document usually dated, written or singed by him.
3. When statement is made against interest of maker: is against the pecuniary or proprietary interest of
the person making it, or when if true it would expose or would have exposed him to a criminal
prosecution or to suit for damages.
4. when it gives opinion as to public right or customs, or matters of general interest: when the
statement gives the option of any such person, as to the existence of any public right custom or
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matter of public interest, the existence of which is existed, he would have been likely to be aware an
when such statement was made before any controversy as to such right, custom or matter has arisen.
5. When it relates to existence of relationship by blood, marriage or adoption between persons as to
whom relationship by blood marriage, or adoption the person making the statement had special
means of knowledge and when the statement was made before the question in dispute was raised.
6. is made in will or deed relating to family affairs.
7. When it is in document relating to transaction mention in Article 26 (A)
8. When it is made by several persons and expresses feelings relevant to matter in question.
Interpretation of Statutes
Prepared by: Prf. Sayed Afzal Ahmad
Meaning of Interpretation & Construction
With respect to extracting meaning from a written passage, there is no material distinction between
construction and interpretation. The terms are interchangeable, though some commentators have found one.
Driedger thinks that only where there is some ambiguity, obscurity or inconsistency is the term
‘ interpret’ fitting.
Dias interestingly regards ‘ interpretation’ as relating to what the legislature meant to refer and
‘ construction’ as applying to the purpose it meant to accomplish.
Jamieson says ‘ constructing’ , as distinct from interpreting, a statute requires clears standards of
grammatical construction mutually understood and applied by both draftsman and statute user.
According to Bentham: “ People in general when they speak of law and statute are apt to mean the
same thing by the one as by the other. So are they when they speak of constructing and interpreting” .
Cross also aggress with Bentham because it lacked an agreed basis.
In England, the leading Act on the subject, while calling itself the “ Interpretation Act 1978” , refers
through out the “ construction” .
Such differences in the use of two terms in contemporary English are matters more of (feeling or
opinions) then distinct meaning.
In some of the context with which we are concerned interpretation suggest itself as the most fitting
word, while in others one would speak more naturally of ‘ construction’ . It is, as so often in the linguistic
field, a question of feel. A reader may interpret anything from a single word to an entire Act, One
‘ construes’ a sentence or longer passage but not a word by itself.
Interpretation perhaps connotes more than construction does the idea of determining the legal effect.
Construction is more concerned with extracting a grammatical meaning.
Literal Meaning of Interpretation
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In Dictionaries the following meanings are assigned to “ interpretation” :

The act or result of interpreting.

Explanation.

Meaning

Translation

Exposition, etc.
Statutory Means: fixed, authorized or establish by the statute or exacted law. Salmond says that only
enacted laws are susceptible to interpretation and that customary and case law does not need interpretation
why?
Meaning of Interpretation
According to Salmond: by interpretation or construction is meant the process by which the courts
seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is
expressed.
Explanation
1. it is the process of seeking the meaning or intention.
2. The meaning which is sought must be that of the legislature, i.e. the meaning intended by the
legislature.
3. The process of ascertaining the meaning must be performed by the court. Because it is the
court’ s derived meaning which is binding.
4. In interpretation the job of the court is confined to the ascertaining or determining the meaning.
The courts cannot create the law in the name of interpretation.
5. The courts must perform the duty interpretation through the medium of authoritative forms in
which it is expressed, i.e. neither the language of the statute should be ignored nor the recognized
and approved principles in this behalf. In other words, the language and principles both must
carry the approval of the legislature. The court is just an impartial entity. The court is not
supposed to mix it with his own ideas of legal policies or social polices etc.
Note: The meaning that is sought to be determined by the courts may be either grammatical or legal
meaning. For example if the grammatical meaning corresponds to the legislative intent, it by itself becomes
the legal meaning but if the literal meaning appears to be in conflict with the legislative intent, then some
other interpretation criteria should be used to find out the legal meaning.
Meanings
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1. Interpretation is a process by which a judge (or indeed any person, lawyer, layman, who has
occasion to search for the meaning of a statute) constructs from the words of a statute book a
meaning which he either believes to be that of legislature or which he proposes to attribute to it”
(Cross)
2. Writers like Cooly and Crawford define it as “ The art of finding out the true sense of words” .
3. The essence of interpretation of statutes is provided in Gubay V Kington as an “ earnest seeking
after the intention of Parliament or perhaps more accurately, the deemed intention of the
Parliament” .
4. Sir Abdur Rahim lays emphasis on the intention of legislature in his definition.
5. According to A.M. Khoja: Interpretation is “ Striving or exerting or expending of effort and
exhaustion of all powers of reasoning” .
Note: It would be apt to state that interpretation is the process by which the courts determine the meaning of
a statutory provision for the purposes of applying it to the situation before them” (S.M.Zafar). The meaning
of court ultimately attaches to the statutory words will frequently be that which it believes members of
legislature attached to them, or the meaning which they would have attached to the words had the situation
before the court been present to their minds, the meaning thus provided is based on the intention of the
Parliament. Crabbe has refereed to this as “ Logical interpretation” .
Purpose and Utility of Interpretation
Cannons of construction and rules of interpretation are directed to one and only one end, namely,
towards failing out the intention of the legislature. When intention is clear there is no room for seeking aid
from any extraneous principles of interpretation” (Mozaffar Ahmad V Anwar Ali PLD 1965 Dacca 296)
Crawford’ s view regarding purpose and utility of interpretation: “ the object or purpose of all
construction or interpretation is to ascertain the intention of the law makers, and to make it effective. The
basic principle has been announced time after time that if the statute is plain, certain and free from
ambiguity, a base reading suffices and interpretation is unnecessary or stated conversely, if the statute is
ambiguous or its meaning uncertain, interpretation is required in order to ascertain what the legislator
meant” .
According to Bowen L.J rules of construction are guides to enable us to understand what is
inferential and are not required where the language is clear or the Act of Parliament is unequivocally
expressed” . (Crais on Statute Law P.10)
According to Corpus Juries the purpose of rules of construction of statute is the discover the true
intention of law and the eradicate any doubt found within. For the purpose of construction, resort may be
taken from the language used. (V.82, Pp 526-30)
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Cooly’ s view regarding the object and purpose of interpretation: “ the deficiencies of human
language are such that, if written instruments were always prepared carefully by person skilled in the use of
words, were should still expect to find their meaning after drown in question, or at least to meet with
difficulties in their practical application. But when draftsman are careless or incompetent, these difficulties
are greatly increased, and they multiply repeatedly when the instruments are to be applied, not only to the
subjects directly within the contemplation of those who framed them, but also to great variety of new
circumstances which could not have been anticipated, but which must nevertheless be governed by the
general rules which the instrument establish. Moreover, the different points of view from which different
individuals regard these instruments themselves. All those circumstance tend to give to the subject of
interpretation” .
Muslim Jurists had developed both the science and art of interpretation in their early centuries after
the advent of Islam. Almost all the books of Usul-al-Fiqh contained chapters on the principles and rules of
interpretation. A lot of literature is found one the legal maxims and presumptions dealing with eth subject of
interpretation. This means that the Muslim Jurists had realized the instance need of this subject in the very
beginning. The most modern approaches of texualism and contextualism were the subject matter of their
discussion.
According to Mohammad Hashim Kamali: “ the rules of interpretation are instrumental as an aid to
the correct understanding the Shariah” .
Prophet Muhammad (SAW) in spite of the fact that his source of knowledge of Wahy (which could
not go wrong) was available to him did exercise the rules of interpretation. This use of Ijtihad
(Interpretation) by the Prophet Muhammad (SAW) in constructing a society and promoting the progress of
law has immensely increased. The importance of interpretation which is quite evident from one of his
sayings, “ If a judge interprets and gives a right judgment, he will have earned two rewards; if he interprets
but errs in his judgment, he will still have earned one reward” .
Michel de Montaigne says: “ who would not say that glosses increase doubt and ignorance, since
there is no book about which the world basis itself, whether of human or divine origin, of which the
difficulties evaporate by interpretation? This is best seen in law-practice that we attribute legal authority to
an endless number of doctors, an endless number of judgments and as many interpretations. And yet do we
see any end to the need of interpreting?
A German jurist Breth says in this regard: “ One weighty task of the system of application of law
consists in making more profound the discovery of latent meaning of positive law, much more however is
the second task, which the system serves, namely the filling of gaps, which are found in every positive law
in greater or less measure” .
Superior Courts of Pakistan have tendered valuable services regarding the purpose and utility of the
rules of interpretation process.
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In the case of Muhammad Ismail V State, Hamood-ur-Rahman, G.J. while emphasizing on the
purpose and utility of interpretation, stated that where the language of the statute is such that it leads to a
manifest contradiction of the apparent purpose of the enactment, the meaning of the words may be modified
because where the intention is clear, it cannot be nullified on the mere basis of the inability of the draftsman
to be articulate.
Similarly, Sardar Mohammad Iqbal, J. is of the view that in cases where there is doubt about the
meaning of the words used in a statute, a recognized method of construction is to taken the words in the
sense in which they would harmonize with the subject of the enactment and the object, which the legislature
had in view.
The work of interpretation is in one sense enduring and in an other sense ephemeral. This is how
Binyamin N. Cardozo describes the work of a judge. What is good in it endures, what is erroneous is pretty
sure to perish. .the good remains the foundation on which now structures will be built. The bad will be
rejected and cast off in the laboratory of years our canons of interpretation help this process.
Intention of the Legislature
1. A Statute, being a product of the legislature is conventionally interpreted by the courts in such a way
so as to find out the intention of its maker. Now, it has been universally accepted duty of the
judicature to act upon the true intention of the legislature which duty makes it necessary, in the first
instance, to discern the underlying intention of the statute.
2. If a statutory provision is open to more than one interpretation, the court has to choose that
interpretation which represents the true intention of the legislature which is also refereed to as the
“ legal meaning” of the statutory provision. BUT
3. the task is often not an easy one and the difficulties arise because of various reasons;
i) Words in any language are not scientific symbols having any precise or definite meaning and
language is but an important medium to convey one’ s thought, muchless of a large assembly consisting of
person of various schools of opinion.
ii) It is impossible for the most unaginative legislature to forestall exhaustively situations and
circumstances that may emerge after enacting a statute where its application may be required. The function
of the court is only to expound and not to legislate.
iii) The numerous rules of interpretation or construction formulated by courts are expressed differently
by different judges and support may be found in these formulations for apparently contradictory
propositions.
iv) The problem of interpretation is a problem of meanings of words and their effectiveness as medium
of expression to communicate a particular thought. A word is used to refer to some object or situation in the
real world and this object or situation has been assigned a technical name referent. Words and phrases are
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symbols that stimulate mental references to referents. But words of any language are capable of refereeing
to different referents in different contexts and times.
v) Moreover, there is always the difficulty of borderline cases falling within or outside the connotation
of a word. Language is therefore likely to be misunderstood.
vi) In ordinary conversation or correspondence, it is generally open for parties to obtain clarification if
the referent is imperfectly communicated. The position is, however, different in the interpretation of statute
law. A statute as enacted cannot be explained by the individual opinions of the legislators, not even by a
resolution of the entire legislature. After the enacting process is over, the legislature becomes functus officio
so for as the particular stature is concerned, so that it cannot itself interpret it. The legislature can no doubt
amend or repeal any previous statute or can declare the meaning but all this can be done only by a fresh
statute after going through the normal process of law making. As such the courts have therefore to look
essentially to the words of the statute to discern the referent aiding their effort as much as possible by the
context.
vii) Apart from controversies as to the limits of the context out side the statute, there is difficulty arising
out of ‘ fringe’ meaning of words. There may be certain objects or situations which may without any
controversy fall within the context of a word, but there may be many others on or near the borderline in
respect of which it may be a matter of doubt and serious argument whether they are within or outside the
connotation of the word. It is, therefore, said that cases falling within or near to this fringe are apt to give
rise to a sharp difference of opinion. No one will dispute that the structure in which the High Court of
Madhya Pradesh is located is a ‘ building’ but it may be a matter of surprise to find that an open platform
having no wall or proof is a building whereas a brick kiln‫(ك‬a pit dug in the ground with brick by its side) is
not a building. Further, a question may arise which may be answered differently in different context whether
building includes land over which the superstructure stands or whether it is confined to the superstructure.
The core of such problems is indicated by Lord Jowit, L.C. in the following words; “ the question is an
essentially one of degree and that it is impossible to fix any definite time at which maintenance ends and
‘ repair’ starts. Faced with such problems, the courts although conscious of dividing line, do not attempt to
draw it for reasons of practical impossibility and decide the particular case in hand as falling within or
outside the preview of the relevant words of the statute, after laying down a working line or more
appropriately some general working principles.
viii) Intending to curb some evil or realize certain public benefit, the modern legislature, on the basis of
their past experience, some times design the legislation by the use of general words to cover similar
problems arising in future. But from the very nature of the things, it is impossible to anticipate fully the
varied situations arising in future and words chosen to communicate such indefinite referents are bound to
be, in many cases lacking in clarity and precision and thus giving rise to controversial questions of
construction.
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In all real controversies of construction, if it were open to consult the legislature as to its intention, the
answer of most of the legislatures in all probability will be; ‘ such a problem never occurred to us, solve it
as best as you can consistent with the words used, and the purpose indicated by us in the statute.
The legislation intent in such cases is a fiction representing the attitude of the judges in arriving at a
solution by striking a balance between the letter and spirit of the statute without acknowledging that they
have in any way supplemental the statue. That the duty of the judges is to expound and not to legislate is a
fundamental rule, but this is now and has ever been an “ aspiration” . There is a marginal area in which the
courts “ mould or creatively interpret legislation” and they are thus “ finishers, refiners and polishers of
legislation which comes to them in a state requiring varying degree of further processing” . In deciding, for
example, that telephone is telegraph within the meaning of that word in Acts of 1883 and 1869 when
telephone was not intended and in all alike cases of which examples can be multiplied, the courts have in
effect added a definition clause to include or exclude something which was not prima facie included or
excluded in the words used by the legislature.
 There are indeed opinions where the fiction of intention is lifted and judges are seen acknowledging
that they are filling in the gaps, or that they have by construction added certain words not contained
in the enactment, or that the conclusion reached by them is as if a like definition clauses existed in the
statute itself.
 Some judges proclaim that they perform creative function even in the interpretation. But such an
attitude may lead less disciplined amongst them to collusions which have a strong legislative. So it is
wise to adhere to the traditional expression and to all every process of construction a search for
“ intention” express or implicit in the statute.
 The intention of the legislature thus carries two aspects:
1. In one aspect, it carries the concept of “ meaning” of the words of the statute.
2. In another aspect, it conveys the concept of “ purpose and object” or the reason and spirit pervading
in the statute.
 The process of construction therefore, combines both literal and purposive approaches. In other words,
the legislation intention i.e. the legal meaning of an Act is derived by considering the meaning of the
words used in the enactment in the light of any discernable purpose or object which comprehends the
mischief and its remedy to which the enactment is directed.
In all ordinary cases and primarily the language employed, is the determining factor of intention. The
first and primary rule of construction is that the intention of the legislature must be found in the words used
by the legislature itself. The question is not what may be supposed to have been intended by the legislature
but what has been said” . Justice Holmes once said in a letter: “ I do not care what their intention was. I
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only want to know what the words means” . Lord Brougham seems more emphatic in stating the importance
of the text of the statute.
“ If the legislature did intend that which it has not expressed clearly, much more, if the legislature
intended something very different, if the legislature intended pretty nearly the opposite of what is said, it is
not for judges to invent something which they do not meant within the words of the text (aiding their
construction of the text always of course by the context)
 These and the like opinions lay stress on one aspect of intention i.e. what the words mean aspect
(textualist or literalist approach). Of course, it is where the ‘ referent’ is clearly indicated and the
words have a ‘ plain meaning’ the courts are not busy themselves with ‘ supposed’ intention or with
the policy underlying the statute.
But
Words used by the legislature do not always bear a plain meaning and the judges are often found
differing on the issue whether certain words are plain or not and even when there is an agreement that the
words are plain, difference of opinion may result on the question as to what the plain meaning is.
However in case of any doubt, therefore, it is always safe to have an eye on the object and purpose
of the statute. Lord Cairns says: “ I say that we must look to what the purpose is” While Sir John Nicholl
says that “ the key to the opening of every law is the reason and the spirit of the law” .
This aspect of ‘ purpose’ is the very foundation of the rule in Hydon’ s case reported by Lord Coke
as for back as 1584. “ Statures should be construed not as theorems of Euclid” , said learned Hand, “ but
with some imaginations of the purposes which lie behind them” .
 For ascertaining the purpose of statute one is not restricted to the internal aid furnished by the statute
itself, although the text of the statute taken as a whole is the most important material for ascertaining
both the aspects of ‘ intention’ .
 Without intending to lay down a precise and exhaustive list of external aids, Lord Somervell has
stated; the mischief against which the statute is directed and perhaps to an undefined extent. The
surrounding circumstances can be considered. Other statutes in pari material and the state of law at the
time of (passing of Act) are admissible” .
In the words of Chinappe Reddy J. “ Interpretation must depend on the text and context they are the
basis of interpretation. That interpretation is best which makes the textual interpretation match the
contextual.
 A statute is best interpreted when we know why it was enacted. In fact, intention is as Justice Holmes
puts it, a residuary clause intended together up what ever other aids there may be to interpretation
beside the particular words and the dictionary.
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According to Blachstone the most fair and rational method for interpreting a statute is by exploring the
intention of the legislature though the most natural signs which are “ either the words, the context, the
subject-matter, the effects and consequences or the spirit and reason of the law” .
 A bare mechanical interpretation of he words and application of a legislative intent devoid of concept of
purpose will reduce most of the remedial and beneficent legislative to futility” .
 Even in construing enactments such as those prescribing a period of limitation for initiation of
proceedings where the purpose is only to intimate the people that after lapse of a certain time from a
certain even a proceeding will not be entertained and where the strict grammatical construction is
normally the only safe guide, a literal and mechanical construction may have to be disregarded if it
conflicts with same essential requirement of fair play and natural justice which the legislature never
intended to throw overboard.
 The Courts are warned that they are not entitled to usurp legislative function under the disguise of
interpretation and that they must avoid the danger of an apriori determination of the meaning of a
provision based on their own preconceived notions of ideological structure or scheme into which the
provision to be interpreted is some how fitted.
 Caution is all he more necessary in dealing with legislation enacted to give effect to policies that are
subject of bitter public and parliamentary controversy, for controversial matters there is room for
differences of opinion as to what is expedient, what is just and what is morally justified; it is parliaments
opinion in those matters that is paramount.

This only means that the judges cannot prêt statutes in light of their views as to policy, but they can
adopt a purposive interpretation if they can find in the statute read as a whole or in the material to
which they are permitted by law to refer as aids to interpretation, an expression of parliament’ s
purpose or policy. So there is no usurpation of function or danger when the purpose or object of a
statute is derived from legitimate sources and the words are given an interpretation which they can
reasonably bear to effectuate that purpose or object. The correct interpretation is that best harmonizes
the words with the object of the statute.

Judicially legislative, if any, in adopting such a curse, does not go beyond its inevitable minimum. The
application of a given legislation to new and unforeseen needs and situations broadly falling within the
statutory provision is within the interpretation jurisdiction of courts. This is not legislation in strict
sense but application and is within the court’ s province.

In deriving an implied obligation on the part of the government to give interim relief to the victims as
the major inarticulate premise from the spirit of the Bhopal Gas Leak Disaster Act, 1985, the scheme of
the Act and the language of sections 9 and 10. Sabasysachi Mukherji C.J, observed; this approach to the
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interpretation of the Act can legitimately be called the ‘ constructive intuition’ which in our opinion is
permissible mode of viewing the Acts of Parliament. He explained that the freedom to search for ‘ The
sprit of the Act’ or the quantity of mischief at which it is aimed opens up the possibility of liberal
interpretation that delicate and important branch of judicial power, the concession of which is
dangerous and the denial ruinous” . (Here the Chief Justice was referring to Benthem’ s classification
and views on interpretation. According to Benthem: interpretation is strict when you derive a meaning
which you suppose the legislature really entertained and it is liberal when you arrive at a meaning
which you suppose he failed to entertain by inadvertence but would have entertained had the case
which calls for interpretation been present to his views). The learned Chief Justice then said; “ Given
this freedom, it is a rare opportunity though never to be misused and challenge for the judge to adopt
and giving meaning to the Act and this translate the intention of the Parliament and fulfill the object of
the Act” .
But
This does not, however, mean that judges should go proclaiming that they are playing the role of a
law-maker for an exhibition of judicial velour is likely to make the less disciplined amongst them forget the
line between adjudication and legislation, as the only sure safeguard against crossing the line is “ an alert
recognition of the necessity not to cross it and instinctive as well as trained reluctance to do so” .

Further the perorations and sermons of judicial activism are likely to lead to confusion in the public
mind and shake their confidence in the rule of law. As stated by Lord Redeliff; “ Judges will serve the
public interest better if they keep quiet about their legislative function” .

The judges have no doubt a genuine creative role but as warned by Lord Scarman “ The constitution’ s
separation of powers, or more accurately functions, must be observed if judicial independence is not to
be put at risk. For if people and parliament come to think that the judicial power is to be confined by
nothing other than the judge’ s sense of what is right, confidence in the judicial system will be replaced
by fear of it becoming uncertain and arbitrary in its application. Society will than be ready for
Parliament to cut the power of the judges. Their power to do justice will become more restricted by law
than it needs be, or is today.

In a case which related to interpretation of clause 3 (b) of section 127 of the Code of Criminal
Procedure, 1973 which makes the provision for maintenance to a wife inapplicable to a divorced
woman when she has received “ the whole of the sum which, under any customary or personal law
applicable to the parties was payable on such divorce” . The supreme Court in its zeal to ameliorate the
condition of Muslim woman hold that deferred dower is not a sum payable “ on divorce” on the
reasoning that it is an amount payable as a mark of respect for the wife although holding that divorce is
a convenient or identifiable point of time at which the amount is payable.
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
The speech of the Minster for Home Affairs piloting the Bill in the Rajya Sabha, to which the court was
referred, clearly showed that t the clause was inserted with a view not to change to Muslim Personal
Law. The fine distinction drawn by the Court that deferred dower though payable at the time of divorce
is not payable on divorce is casuistically and the court plainly “ assumed the role of reformer” which
led to a great controversy and was followed by legislations nullify the decision.

In the words of Cardozo “ The Judge is not innovate at pleasure. He is not a Knight errant roaming at
will in pursuit of his own ideal of beauty or of goodness.

Therefore, in their task of interpreting and applying a statute judges have to be conscious that in the end
the statute is the master and not the servant of the judgment.

The numerous decisions which the courts have delivered and continue to deliver dealing with questions
of exposition of enacted laws are the principal source for ascertaining the rules of interpretation or
construction. The formulations of the rules even in lading decisions are not quite uniform as most often
even a generalized statement in a case gets colored by an emphasis on the problem in that case. Indeed
the courts are, at times seen lamenting over the growth of the rules and apparent conflict in them
because of confusion and error of judgment that is likely to result in blind adherence to them.

Viscount Simonds said, “ Since a large and ever increasing amount of time of the courts has during the
last three hundred years, been spent in the interpretation and exposition of statute, it is naturally enough
that in a matter so complex, the guiding principles hold be stated in different language and with such
varying emphasis on different aspects of the problem that support of high authority may be found for
general and apparently irreconcilable propositions. I shall endeavor not to add to them number” .

Lord Euershed in his foreword to the 11th edition of Maxwell said, “ It is my hope that out of the vast
body of judicial decisions on interpretation of statutes, there will in the end, emerge rules few in
number but well understood generally applicable or applicable to particular or defined classes of
legislation, which may supersede and render obsolete other dicta derived from a different age and a
different philosophy.

The rules of interpretation are not rules of law and are not to be applied like the rules enacted by the
legislature in an inter-protation Act. They serve as guides and such of them which source no useful
purpose now can be rejected by courts and new rules can be evaluated in their place. By boldly
rejecting outmoded rules, by substituting, if necessary new rules in third place and by avoiding
unnecessary generalization. The superior courts can help in the task of rationalization of the rules.

In applying the rules, it must be leapt in view that as the rules are not building in the ordinary sense like
legislation, “ They are our servant and no masters. They are aids to construction, presumptions or
printers. Not infrequently one rule in one direction, another in a different direction. In each case we
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must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any
particular rule.

One need not blame the courts alone for creating some confusion in this branch of law. Some amount of
responsibility must also be shared by the Parliamentary draftsman. The utility of the rules of
interpretation is based on the theory that the legislature in formulating its legislation keeps the rules in
view so that it may not be misunderstood by the courts. However, the rules enunciated by courts are not
binding on the legislature and if the legislature does not follow them, the courts’ duty is not to
misinterpret the law. As observed by Lord Du Porco, “ The courts have not and certainly do not, claim
the right to say to Parliament or to its Draftsman; observe the rules which we lay down or, though your
meaning may be perfectly clear, we will teach you a lesson by interpreting your language in a sense
which you obviously did not intend. So whenever the draftsman departs from the rules, and it is
certainly not a rare occurrence, the courts are led to the necessity of modifying the general principles or
of engrafting exceptions to them, the result being that in many cases there ceases to be any general rule
or at any rate any general intelligible rule.
However

Any book on interpretation of statutes can only present a set of tasks and gives some guidance for their
use. For example it will tell you that the text of the statute should not be sacrificed by lefty references to
the purpose or spirit of the statute which is not discernible, but when its purpose and spirit is clear, it
should not be defeated by a mechanical construction even if there is some ineptness in language. But
these rules and similarly all other rules, by themselves yield no solution.

An intelligent application of the rules and the solution in each real difficulty depends on the individual
skill of a judge. The judges of superior courts who form a dissenting minority on a question of
construction are not ignorant of rules of interpretation. The difference of opinion results mainly because
of the sprit in which each judge applies the rules and how far he can go to make the words promote the
object and policy which the statute was designed to achieve.

By combining knowledge, wisdom and experience great judges develop the instinct of finding out the
solution which harmonizes the words with the policy or object behind them. Justice Cardozo is reported
to hence said, “ A judge must think of himself as an artist, who although he must know the hand books,
should never trust to them for his guidance, in the end he must rely upon his almost instinctive sense of
where the line lies between the word and the purpose which lay behind it” .
General Principles of Interpretation
1. Statute Must Be Read As A Whole In Its Context
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When the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but
proper to read that provision in its context. The context here means, the statute as a whole, the previous state
of law, other statutes in pari material, the general scope of the statute and the mischief that it was intended
to remedy.
This is now an established rule. Viscount Simonds calls it an “ elementary rule” . Lord Somevell of
Harrow calls it a “ compelling rule” .

Lord Halsbury said, “ I agree that you must look at the whole instrument inasmuch as there may be
inaccuracy and inconsistency, you must, if you can ascertain what is the meaning of instrument
taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of
it” .

It is the most natural and genuine exposition of a statute to construe one par of the statute one part
of a statute by another part of the same statute, for that best expresseth the meaning of the makers”
(Lord Coke)

Lord Green MR further elaborated, “ the method of construing statues that I prefer is to read the
statue as a whole and asks oneself the question: “ I this state, in this context, relating to this subject
matter, what is the true meaning of word?

The rule is of general application as even plainest terms may be controlled by the context, and it is
conceivable, as Lord Watson said, that the legislature while enacting one clause in plain terms,
might introduce into the same state other enactments which to some extent qualify or neutralize its
effect” the same word may mean one thing in one context and another in a different context.

The conclusion that the language used by the legislature is plain or ambiguous can only be truly
arrived at by studying the statute as a whole.

How far and to what extent each component part of the statute influences the meaning of the other
part would be different in each given case. But the effect of the application of the rule to a particular
case should not be confounded with the legitimacy of applying it” .

He says it is a rule of law that the interpreter is to infer that the legislator, when settling the wording
of an enactment, intended it to be given a fully informed rather than a purely literal interpretation
(though the two usually produce the same result” ). Accordingly, the court does not decide whether
or not any real doubt exist as to the meaning of an enactment (and if so how to resolve it) until the
court has first discerned and considered, in the light of the guides to legislative intention of the
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overall context of the enactment, including all such matters as may allumine. The text and make
clear the meaning intended by the legislature in the factual situation of the instant case.
It must be often be difficult to say that any terms are clear and unambiguous until they have been
read in their context. The elementary rule must be observed that no on should profess to understand
any part of a statute… before he has read the whole of it. Until he ahs done so, he is not entitled to
say that it is or any part of it is clear and unambiguous”
Judges have pointed out that it may not be enough even to read the whole Act. “ at first blush, I
should have said that “ member” of a company means what it says, said Roxberg J, pointing to the
importance of a legislative history of the enactment before him, but it is never safe to construe an
Act of Parliament by saying undue attention to the meaning of the words… the matter has a long
history” .
Restriction: a restriction is placed on the rule by the need to avoid unpredictability, and unjustified
lengthening of legal proceedings. In determining whether consideration should be given to any item of
legislative history or other informative material and if so what weight should be given to it, regard is to be
had to:
a. the desirability of person being able to rely on the ordinary meaning conveyed by the text of the
enactment, taking into account its context in the Act or other instruments and the legislative
intention, and
b. The need to avoid prolonging legal or other proceedings without compensating advantage.
c. Not to take into account material which is not generally available. The informed interpretation rule is
to be applied no matter how plain the statutory words may seem at first glance. Indeed the plainer
they seem, the more interpreter need to be on guard. A first glance at an enactment is not a fully
informed glance. Without exception, statutory words require careful assessment of themselves and
their context if they are to be construed correctly. A danger of the first glance lies in what is called
impression. When the human mind comes into contact with a verbal proposition an impression of
meaning may immediately form, which impression should not be allowed to form before all
surrounding circumstances concerning the enactment in question have been grasped.
In an appeal before the House of Lord, where the question was of the true import of the statute, the
Attorney General wanted to call in aid the preamble in support of the meaning which he contended should
be given to the enacting part, but in doing so was met by the argument on behalf of the respondents that
whoever the enacting part of the statue is clear and unambiguous, it cannot be controlled by the preamble
which cannot read. The House of Lords rejected the objection to the reading of the preamble, although,
ultimately it came to the conclusion that the enacting part was clear. Viscount Semionds (Lord Tacker
agreeing) in that connection said, “ I conscience it to be my right and duty to examine every word of a
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statute in its context, and I use context in its widest sense as including not only other enacting provisions of
the same statute, but its preamble, the existing state of law, other statutes in pari material and the mischief,
which I can , by those and other legitimate sources, discern that statute was intended to remedy. Lord
Somervell put the matter thus: “ a question of construction arises when one side submits that a particular
provision of an Act covers the facts of the case and the other submits that it does not or its may be agreed it
applies but the difference arises to its application. It is unreal to proceed as if the court looked first at the
provision in dispute without knowing whatever it was contained in a finance Act or a public health Act. The
title and general scope of the Act constituting the background of the context. When the court comes to the
Act itself, bearing in mind any relevant extraneous matters, there is, in any are compelling rule. The whole
or any part, of the Act may be referred to and relied on” . He then went on to quota with approval the
following observations of Sir John Nicholl “ the key to the opening of every law is the reason and the spirit
of the law… the intention of the law makers, expressed in the law itself, taken as a whole. Hence to arrive at
a decision about the true meaning of any particular phrase in a statute, that a particular phrase is not to be
viewed detached from the context---meaning by this as well the title and the preamble as the purview or
enacting part of the statute.
Ut Res Magis Valeat Quam Pereat
It means that it may rather become operative than null. On this principle only a statute or any
enacting provision must be so construed so as to make it effective and operative, a machinery must be
constituted as to effect the liability of a section and to make the machinery workable.
In application to this principle when the judge interpret or pronounce the constitutionality of any
provision, he starts with presumption in favor of constitutionality and prefer to make the statute within
competence of the legislature.
The court is against the ineffective or useless of provision. Therefore if alternative construction is
possible the court must give effect to that.
The burden of proof is on the person who challenges any law because that law is repugnant to
constitutional provisions. The constitutionality must be proved by the person who challenges the
constitutionality of any provision of the law.
Why did the legislature make the law? In order to be effective or be practical in the situation, they
have presumed of workability of any provision. So the judge interpreted in such a way as to be implication,
they don’ t’ interpret in the way which makes provisions ineffective. There should be golden principle of
interpretation.
The legislative purpose is that every part of the statute should have effect. It is not easy to say that
word or words in the statute is useless or ineffective.
In order to apply the statute, the court has to keep in mind the workability of any statute keeping in
view the doctrine of res magis valeat quam Pereat.
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FAREWELLS J said that unless the words are so senseless that it could do nothing, so don’ t’
declare them void, for uncertainty. It could not be assumed that legislature made it without any purpose.
LORD DUNEDIN said it is our duty to make a statute operative and not inept, and judge should not
declare a statute unworkable.
The example of working rule is in CIT V Teja Singh, S/ 18 A of Indian Income Tax Act 1922. The
action of imposing penalty was taken U/s 28 for failure to comply with S.18 and the conditions u/s 21 (1) Or
22 must be satisfied. The SC construed that the suggestion will make S. 18 nugatory and if we do this we
will signally fail to achieve the object and construction which leads to such must be avoided on the bases of
the this maxim.
In Tinsukia Electric Supply Co Ltd V State of Assam, it was held that the court strongly lean a
construction which reduces the statute to futility. A statute or provision must be constructed as to make it
effective and operative according to this principle.
In Avtar Singh V State of Punjab, the accused was charged with theft of electricity under Electricity
Act, the accused pleaded that S. 50 of the Act is not fulfilled he should not be punished, but the other party
pleaded that he should be punished under IPC. The SC held that on principle of this maxim, the crime is
against the act so the requirement of S. 50 has to be fulfilled.
But it is impossible some time that careless drafting of legislature may wholly or partially fail the
object of the statute as in Delhi Cloth and General Mills Co Ltd V State of Rajistan, it was held that
validating act cannot be held valid and effective.
Plain Meaning Rule
When the language of a statute is plain, words are clear and unambiguous and give only one
meaning then effect should be given to that plain meaning only and one should not go in for the construction
of that statue.
If the language of a provision is clear effect must be given tot that plain and clear meaning
ineffective of other consequences. It is not open that first create any ambiguity then look for some principle
of interpretation.
In Nelson Motis V Union of India it was held that when the words of statute are in themselves
precise and unambiguous no more of expound can be necessary, the words themselves declare the intention
of the law giver.
LORD ATIKIN in holding that the word “ any person” U/S 162 of CrPC included any person who
is accused said, “ When the meaning of the words is plain, it is not the duty of the court to busy themselves
with supposed intention.
Supreme Court gives effect to the plain meaning while constructing the word Butter and held that it
included butter prepared from curd. But SUBBARO J. rejected this continuation.
The Bangle Agricultural Income Tax required that a return of income shall be verified and the
declaration shall be singed in the case of individual by individual, therefore the signature of illiterate person
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by his son is invalid return, and judge said hardship cannot alter the meaning of a provision if it has clear or
plain meaning.
While interpreting a statue consideration of inconvenience and hardship should be avoided and when
the language is clear and explicit and words are used plain and unambiguous court is bound to construe
them in their ordinary sense.
While interpreting a statute the plain meaning of words must first be ascertained, into eh case there
is doubt the object and preamble of statute can be seen, when the language is plain the court cannot enlarge
the scope of the provision by interpretive process.
While interpreting a statute plain or ordinary meaning should be ascribed unless content requires
otherwise. It has been held where the language of the statute is unambiguous it is not necessary to examine
the intent and object of the Act while interpreting its provision.
How would you reconcile it with contextual rule OR appraisal of plain meaning: It is not
possible to decide that certain words are plain or ambiguous unless they are studded in their context and
construed. Therefore the plain meaning rule means that after construing the words when the court comes to
conclusion that there is no other meaning and it bears only one meaning.
The plain meaning can be departed from as they leads to patent, injustice, anomaly or absurdity or
invalidation of the law.
JUDGE PEARSON said, it is impossible to decide the language plain without construing it first.
Consideration of the context and setting is indispensable properly to ascertain the manning of any word.
When we have to decide that certain words are clear and unambiguous we must study those words in
their context. Unambiguous means unambiguous in their context.
Context is used in wide sense. It means or includes enacting provisions of the same statute, its
permeable and existing state of the law.
Judges opinion as to the true meaning of the words in often different from each other but this
difference of opinion des not always indicate that the words are ambiguous. Sometimes all the judges agree
that the meaning of the words in plain but they differ on the question as to what meaning is?
Recent example is interpretation of A/105 of Constitution; it provides that no ember of parliament
shall be liable to proceedings in respect of anything said or vote given by him in parliament. SC held that
article means what it says in language which could not be plainer. In the case of PV Vs State all five judges
agreed that a member of parliament who receives bribe for voting but does not vote can be prosecuted for
the offence of bribery under PCA. Out of five three said it cannot be prosecuted in respect of vote given by
him and barred by A 105 (b).
LORD REID said, if the words of an act are so inflexible that they are incapable in any context of
having any but one meaning, then the court must apply that meaning. But such cases are rare because of the
English Language is a flexible instrument.
Rule of Literal Construction
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This rule is considered to be the first principle of interpretation. According to this the word of
provision are to be given their ordinary and natural meaning, and if such meaning is clear or unambiguous,
effect should be given to a provision of a statute.
Where words are clear and unambiguous, rule of literal is applied and recourse to the principle of
interpretation is not required. It is applied in both private and public laws. The rule has the following
aspects:
1. Natural & Grammatical Meaning:
The words of statute are first understood in their natural, ordinary or popular sense and phrase and
they are construed to their grammatical meaning, unless it leads to some absurdity or unless there is
something in the context in the object of statue to suggest the contrary.
LORD ATKINSON said the words must be interpreted in ordinary grammatical unless there be
something in context or the object of statute occurs contrary or show that it be in special sense different
from ordinary grammatical sense.
LROD BROUGHAM said, the true ways to construe the words is to take the meaning naturally
imply unless the construction of the words is either by permeable or by the context.
SC held that grammatical means which leads to absurdity or injustice is to be avoided.
Words cannot be construed contrary to their meaning. It was held that expression “ within” in S.3
of Muslim Woman Act should not be read as on or before, not beyond that because that amount to giving
contrary meaning of the word.
A departure from the rule of literal construction outside the recognized limits in the guise of liberal
leads to unwarranted expansion and rise to serious errors. It is cleared in the case of Kartar Singh V State of
Punjab.
Modified form of this principle is known is Golden Rule. It was regarded by LORD
WENSLEYDALE in the case of Grey V Pearson.
Simond said, the golden rule is that the words of a statute must prima facie be given their ordinary
meaning. Naturally and ordinary meaning should not be departed unless it can be shown in legal context as
different meaning.
2. Explanation of the rule
When it is said that the words to be understood in their natural, ordinary or popular sense, it is meant
that the words must be ascribed naturally, ordinary, literal, grammatical and popular, and all these terms are
interchangeable.
In determining any word the question is what is natural or ordinary meaning of the word in its
context? But if the natural or ordinary meaning results which cannot oppose the intention of legislation we
have to look to some other meanings.
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Every word apart from ordinary meaning has a secondary meaning too. But it is less common then
ordinary meaning. Once it is accepted that the natural and ordinary earning of the word is derived from its
context, the distinction between meanings loses significances.
There are many example but one of them is that it was held that ‘ profit and gain’ when used in
Income tax should be understood in sense which no commercial man would misunderstand.
Justice Frank justified the rule that the words to be understood in the natural, plain, meaning or
ordinary or popular.
3. Exact Meaning preferred to loose meaning
The third important aspect of rule of literal construction is that exact meaning is preferred to loose
meaning in an act of Parliament.
In Parithipal Singh V Union of India, it was held that there is presumption that the words are used in
Act of Parliament correctly and exactly and not loosely and inexactly.
LORD HEWARD while ascribe the word ‘ contiguous’ said it means exactly ‘ touching’ in
reference to loose meaning ‘ neighboring’ .
Every word has secondary meaning too, in applying this aspect one should be careful not to mix the
loose meaning with secondary meaning. But preference to the secondary meaning does not offend the rule
that preference should not be given to loose meaning. ‘ Obtain’ means effort to acquire but in secondary
meaning it means to acquire. If secondary meaning is preferred it does not mean the loose meaning is
preferred.
4. Technical words in technical sense
This depends upon the nature of a statute. If it is an ordinary, the ordinary meaning will be taken
unless it is proved technically. Relevant points are:
a. Special meaning in trade, business, etc.
LORD ESHER said, if words relating to trade, business, or transaction so particular meaning should
be given and construed.
It is in relation to subject matter, in relation to trade, business, or profession, art, science, in the
context as understood into that sense.
Such a special meaning is called thing meaning in order to distinguish it from common meaning of
the words.
In interpreting items in statute like excise, sale tax resort should be to the scientific or technical
meaning or expression used and how people produce or deals with this.
b. Legal sense of words
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It means that when word acquires a technical meaning because of their consistent use by the
legislature in particular sense or their construction is by superior court. When a word acquires a special
connotation in law, then dictionaries also cease to help in interpretation the word.
LORD MACNAUGHTEN said, in construing acts of parliament t is general rule, that words must be
taken in their legal sense unless contrary intention appears” .
In Gordhadas V Municipal Commission, the SC held that S. 73 of BMBA, rate should be construed
in a technical sense because it has required a special meaning, and value arrived by three modes:
a. Actual rent.
b. Rent based on tenancy.
c. Valuation bases on capital value.
So it was held that rate could be imposed on percentage of annual value from capital value.
Mischief Rule
This rule is laid down in Heydon’ s case. It enables consideration of four matters in construing an
Act;
1. What was the law before making the Act?
2. What was the mischief or defect for which the law did not provide? Or what was the fault of
previous law?
3. What is remedy for the mischief in present Act?
4. What is the reason of the remedy?
Then rule directs that the court must adopt that construction which suppress the mischief and
advance the remedy. When statute provides relief, the court should not deny such relief.
This rule is applicable where language is capable of more than one meaning. It has to bread with the
provision in it s contexts, as a whole, the previous law and other statute, the general scope and mischief.
This rule was applied in construction of S. 2 (d) of Prize Competition Act. Prize competition means
any Competition in which prize are offered for solution of puzzle based upon the building up arrangement,
combination words, etc, but the question was that what about base of skill? The SC looking to the history of
the Act and mischief rule declared that only those competition in which success and does not depend on
degree of skill.
In CIT V Sodra Devi, section 16 (3) of ITA was construed that whether individual includes male or
female? Judge said in order to solve we have to look the law before the enactment of the provision, the
mischief for which the law did not provide, and the remedy which the legislature resolved and appointed to
cure the defect.
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Labour Law
Prepared by: Mohammad Ismail
THE PUNJAB INDUSTRIAL RELATIONS ACT, 2010 (IRA)
Introduction
Employer and labour are two different categories. Certain classes of employed are under labour law.
Private employees are also under the provision of labour laws.
Islamic Concept of labour: there should be equal states which is introduced by theory of Muakhat ‫ المؤاخبةك‬.
Labour is not a commodity, they are human being and should be treated as human. There must be prior
contract before employing any body to work and terms and conditions must be specified from the start of he
work. The most important point which Islam considered it that the labour must be paid full payment at the
end of the work. There are many Hadith of the Prophet (PBUH) which refer to labouring and working.
Modern Labour Law: International Labour Organization (ILO) is an organization which is looking to the
standards of the labour. There are 188 standards for labour but all of them are not bound to all the classes.
After ILO relation came into existence. Some modern labour laws talk of relations than the laws.
They have to relate both of the employer and employee. So they establish a relation such as Industrial
Relations Act, etc.
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S. 2 (xxxi): Worker and workmen: person not falling within the definition of employer who is employed, in
an establishment or industry for hire or reward either directly or indirectly, whether the terms o f
employment be express or implied, for the purpose of any proceedings under the Act in relation to an
industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise
removed from employment. It does not include in managerial and administrative capacity.
Here four words are necessary to be explained:
Dismissed: to terminate, no more employment.
Discharge: this is temporary dismissal.
Retrenchment: the labour who works in any season then waiting until new season.
Laid off: the workers remain in their statutes, but the period of work is reduced for some reason such as
electricity or shortage of raw material and they are half paid.
A person who is discharged he will also remain as workman because he could apply any dispute
regarding his discharge, so if does not remain then he will not have capacity to suite a file on the base of this
law.
viii) Employer: in relation to an establishment means any person or body of persons, whether incorporated
or not, who or which employs workmen in the establishment under a contract of employment and includes:
1. An heir, successor or assignee of such person.
2. Any person responsible for the management, supervision and control of establishment.
3. Establishment by the authority of FG, the authority appointed in this behalf, if no authority then head
of the department.
4. If on behalf of local authority, the officer appointed in this behalf, or chief executive officer if no
officer is appointed.
5. Other establishment the proprietor of such establishment and every director, manager, secretary,
agent or offer of person concerned to management.
ix) establishment: any office, firm, factory, society, undertaking, company, shop, premises, or enterprise in
Punjab which employs workmen directly or through a contractor for the purpose of carrying on business or
industry and includes its departments and branches, whether in that area or different areas.
Trade Union
Definition of Trade Union:
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Section 2 (xxix) defines the trade union as, “ any combination of workmen or employers formed primarily
for the purpose of regulating the relations between workmen and employers, or workmen and workmen or
employers and employers, or for imposing restrictive conditions on the conduct of any trade or business and
includes a federation of two or more trade unions and confederation of two or more federations” .
1. Purpose of Trade Union
The purposes of a trade union as it is shown in the definition clearly are two:
1. Regulating the relations between workmen and employers, or workmen and workmen or employer
and employers.
2. Imposing restrictive conditions on the conduct of trade.
2. Law of Trade Union
Trade Union is regulated under IRA, section 3 to 116. The complete process has been mentioned in these
sections. Under Article 17 of the Constitution of Pakistan, this ordinance and any other law, the worker have
a right to form a join and trade union within the establishment or industry in which they are employed
according to the different provisions of Constitutions of Pakistan and rules of trade Union. There are
different Articles of Constitution of Pakistan which relates to the Trade and workmen:
1. Elimination of exploitations. U/A 3
2. Slavery, forced labour is prohibited. U/A 11.
3. Freedom of association. U/A 17.
4. Equality of citizens. U/A 25.
5. Principles of policy and social and economic welfare. U/As 37 (e), 38 (a).
3. Requirement of Trade Union
1. Worker not to be less than fifty workers. They can make an association without previous
authorization.
2. A worker cannot be member of more than one trade union at one time.
3. Employers may join associations of their own choice without pervious authorization.
4. Every trade union shall frame its own constitution and rules to elect representative.
5. Workers or employers may establish and join federations and confederation.
4. Constitution of Trade Union
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Any trade union may, under the signatures of its president and secretary, apply to registrar for registration of
the trade union. But before the registration a trade union should make a constitution of its own. The
constitution of a trade union shall contain the followings:
1. the name of trade union and the address of its head office.
2. The date of formation of the trade union.
3. The titles, names, ages, addresses and occupations of the officer bearers of the trade union.
4. The statement of total paid membership.
5. The name of establishment, group of establishments or the industry along with the total number of
workers.
6. The names and addresses of the registered trade union in case of establishment, to which the trade
union relates.
7. The names, addresses ad registration number of member trade unions, in case the application made
by a federation of trade unions.
8. The names, address and registration number of member federation, in the case of confederation.
9. Three copies of constitution of the trade union and the copy of resolution by the members with the
signature of the Chairman of the meeting.
10. A copy of resolution by the members of the trade union authorizing its President and General
Secretary to apply for registration.
11. A copy of resolution from each of the constitution of trade unions, in the case of federation or
confederation.
5. Registration of Trade Union
After the compilation of the constitution of the trade union and apply for registration, and the trade
union shall not be entitled to registration unless the constitution provides:
1. The name and address of the trade union.
2. The object of trade union.
3. The purpose for which the general funds of union shall be used.
4. The number of persons forming the executive which shall not exceed the prescribed limit and shall
include not less than seventy five percent from amongst the workmen actually engaged.
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5. Condition of entitlement to any benefit assured by constitution to any member.
6. The maintenance of a list of the members of trade union and adequate facilities for the inspection
therefore by the office bearers and members of trade union.
7. The manner in which the constitution shall be amended, varied or rescinded.
8. The safe custody of funds of the trade union, annual audit, manner of audit, adequate facilities for
the inspection by office bearer and members.
9. the manner in which the trade union may be dissolved.
10. The manner of election of office bearers by the general body of the trade union and the term not
exceeding 3 years.
11. The procedure for expression no confidence in any office bears.
12. The meeting of the executive and the general body of that trade union.
A trade union of workmen shall not be entitled to registration unless:
a. all its members are workmen actually employed in establishment or industry with which the trade
union is connected.
b. where there are two or more registered trade unions in the establishment, unless it has its members
not less then one fourth of the total number of workmen employed in such establishment or industry.
A member or office bearer shall be disqualified from the trade union who has been convicted of an
offence under S.69 or heinous offence under PPC.
The registrar on being satisfied that trade union has fulfilled all the requirement shall register the
trade union and issue a certificate of registration within 15 days from the date of receipt of the application
under intimation to the concerned employer.
If the registrar is not satisfied with the application for registration, he shall communicate his
objections to the trade unions within 15 days. The union shall reply within a period of 15 days. When
objection is fulfilled, he shall registrar within three days. A certificate is conclusive evidence and it is issued
to the trade union.
If any alteration in the constitution or officer bear or member occurred, there must be notice to the
registrar within fifteen days.
6. Cancellation of Trade Union: The registration of the trade union is cancelled by the labour court or
Registrar:
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By the labour Court: if there is complaint in writing by the registrar on the following grounds:
1. If the trade union has contravened any provision of the ordinance.
2. If it has violated any provision of the constitution.
3. If it has made in its constitution any provision which is inconsistent with the ordinance.
4. If disqualified person has been elected as an office bearer of trade union.
By Registrar: by giving reason for such cancellation in writing if he finds that a trade union:
1. Has dissolved itself or has ceased to exist.
2. Has not been contestant in referendum for CBA.
3. Has not applied for determination of CBA within two moths of its registration.
4. Has secured less than 15 % of polled votes as per final voters during referendum for the
determination of CBA.
7. Appeal against cancellation:
1. if cancellation by the labour court, appeal may be to the High Court.
2. if cancelled by registrar appeal may lie to the Labour Court.
Unfair Labour Practice
Unfair labour practices may be on the part of employers or the workers. Sections 17 and 18 IRA
explain this topic.
1. Unfair labour practice on the part of employers
1. Impose any condition in a contract of employment which restrains the right to a person who is part of
the contract to join a trade union.
2. To force a workmen to become the office bearer or a member of trade union or not, on the bases of this
refuse the employment of him.
3. Discriminate against the person in regard to any promotion, employment, condition, etc, not become the
member or officer bearer of Trade Union.
4. to dismiss or discharge any person from the employment on the grounds:
a. that he did not become the member of his Trade Union.
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b. participate in promotion, formation or activities of a trade union.
5. To induce any person to refrain from becoming or cease to be a member of a trade union, by conferring
or offering to confer any advantage on, by procuring any advantage for such.
6. compel any officer bearer to a CBA to arrive at a settlement by using intimidate, coercion, pressure,
threat, confinement to a place, physical injury, disconnection of water, power or telephone facility or
other methods.
7. Interfere with or in any way influence the balloting in CBA.
8. Recruit any workman during the period of notice of strike under S.36 or during the currency of a strike
which is not illegal. Except if the employer satisfied that it would cause damage to the machinery or
installation, has allowed temporary employment in that section of work.
9. To close down the whole of the establishment in contravention of Standing Order 11-A.
10. Commence, continue, instigate or incite others to take part in, or expend or supply money in furtherance
or support of illegal lock out.
2. Unfair labour practice on the part of workmen
1. Persuade a workman to join or refrain from joining a trade union during working hours.
2. Intimidate any person to become or refrain from becoming a member or office bearer of a trade
union.
3. Induce any person to refrain from becoming member or office bearer of a trade union by
intimidating or conferring any advantage.
4. Compel the employer to accept any demand by using intimidation, coercion, pressure, threat,
confinement to or ouster from a place, dispossession, assault, physical injury, disconnection of
telephone, water or power facilities, or other such methods.
5. Commence, instigate or incite other to take part in or expend or supply the money in support of
illegal strike or a go-slow.
6. Go-slow means the deterioration of the normal quality of work by body of workmen acting in
concerted manner, but does not include the slowing down of normal output, nor because of defect in
power supply or supply of material.
3. Penalty for unfair labour practices: U/S 64
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1. A person who contravenes S.10 shall be liable to fine of twenty thousand rupees but not less than
five thousand.
2. a person who contravenes S.17 shall be liable to fine of thirty thousand rupees but not less than ten
thousand rupees.
3. Who contravenes S.18 fine which may extend to twenty thousand but not less than five thousand.
4. An office bearer or TU who contravenes S.18 liable to fine up to thirty thousand and not less than
ten thousand.
5. If an office bearer acts an offences along with other punishment the labour court may direct to cease
the office of TU and disqualify him fro holding the office.
6. A person, who contravenes S.58, shall be liable to pay up to fifty thousand but not less than twenty
thousand rupees.
Registration of federation of trade unions and confederation
Any two or more registered unions belonging to an industry may constitute an industry wise
federation. Any ten or more registered trade unions may constitute a federation or confederation at the
national level. In both cases, the respective general bodies of the trade unions, if they so resolve shall
constitute a federation or confederation by executing an instrument of federation or confederation and apply
for registration of such federator.
The trade union of workmen shall not join a federation which comprises of an association of employers.
Similarly, an association of employers shall not join a federation which comprises of a trade union.
1. There should be respective general bodies, and resolution must be created.
2. Confederation can also be made.
3. Employers they have association, they cannot join Trade Union.
4. Trade man will be separate entity.
5. The instrument of rights must be created in that federation.
6. Application shall be singed by the president of all trade unions of federation.
7. Application for confederation shall be signed by the president of the federations.
8. All the things which apply in Trade Union will be applicable in construction of federation or
confederation as well.
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Returns: S. 23: statement showing the record of amount of the trade union.
Every trade union shall annually send to the Registrar:
1. A general statement, audited in prescribed manner, all receipts and expenditure of the trade union
during the year on 31st December.
2. Statement showing all changes of office bearers, total paid of membership and copy of the
constitution of trade union.
3. A copy of every alteration made in the constitution of a registered trade union and resolution of
general body. In case of federation or confederation name of that federation or confederation. Up to
2008 64 federations have been registered.
Collective Bargaining Agent (CBA)
1. Definition S. 2‫( ك‬iii) defined CBA as, “ in relation to an establishment or group of establishments or
industry, means the trade union of the workmen which under Section 24 is the agent of workmen in the
establishment or group of establishments or industry, in the matter of collective bargaining” . So it is:
1. Trade Union.
2. Agent of workmen.
3. In matter of collective bargaining.
2. Purpose of CBA
The purpose of CBA is clearly shown in the definition, which that is an agent of workmen and when
there is matter of collective bargaining.
3. One union
Where there is only one registered trade union in an establishment and if it has as its members not
less than one third of the total number of workmen employed in such establishment, then on the application
of such trade union, the Registrar shall certify that trade union to be the collective bargaining agent of that
establishment.
4. More unions
Where there is more than one registered trade unions in an establishment, the Registrar shall, on an
application from any trade union, hold within 15 days a secret ballot to determine a collective bargaining
agent.
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The registrar may, in the case of a large establishment having its branches in more than one town,
hold the secret ballot within 30 days from the making of the application.
The registrar shall not entertain any application in case of seasonal factory unless such application is
made during the month in which the number of workmen employed is usually maximum.
5. Election of CBA
The procedure of election of CBA is as under:
1. Notice to Union: one receipt of an application the registrar shall by notice in writing call upon
every registered trade union in the establishment to which the application relates to:
1. Indicate whether it desires to be a contestant in the secret ballot to be hold for CBA.
2. Submit within the time specified in a notice, a list of its members showing their percentage, age,
section, department, place, ticket number ,date of becoming member.
3. Submit a list of its affiliated trade unions together with a list of members of each such trade union.
2. List of Workers: every employer shall within 15 days, submit a list of all workers employed in the
establishment whose period of employment is not less than three months showing in respect of each
workman his percentage, age, the section, department, place , ticket number, and date of employment. And
those workmen whose work is less than three months a separate list shall be attached.
3. Verification: every employer shall provide facilities to the registrar for verification of the list
submitted by him and the trade union.
4. List of voters: the registrar shall after verification of the lists, prepare a list of voters inn which shall
be included the name of every workmen, and who is member of any of the contesting trade unions at least 4
days prior to the date of poll.
5. Entitlement to Vote: every workman who is a member of any of the contesting trade unions and
whose name appears in the list of voters shall be entitled to vote.
6. Facilities for polling: every employer shall provide facilities in his establishment for the conduct of
the poll. He shall not interfere and influence the voting. No person shall canvass for vote within a radius of
fifty meters of the polling station.
7. Conduct of Polling: for the purpose of secret ballot to determine the CBA, the registrar shall:
1. Fix the date of the poll and intimate the contesting trade unions and to every employers four days
prior to the contest.
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2. Seal the ballot boxes in the presence of the representative of ht contesting trade unions to receive
ballot papers.
3. Conduct the poll at the polling station at which the representatives of the unions shall have the rights
to be present.
4. Open the ballot boxes and count the votes after the conclusion of the poll and in the presence of the
representative of the trade unions.
5. Certify the trade union which has received the highest number of votes to be CBA.
6. No trade union shall be certified to be the CBA unless the number of votes received by it is not less
than 1/3 of total number.
7. If no trade unions secure such number of votes in first poll, the second poll shall be held between the
two trade unions which secured the highest number of votes in the first poll. The trade union which
secures the majority in second poll shall be certified as CBA.
8. If the number of votes secured by two or more union securing the highest number of votes equal,
further poll shall be held between the until one of them secure majority of vote.
9. If no trade union indicates to be the contestant in the secret ballot, the registrar shall certify trade
union which has made the application to be CBA.
10. When CBA is determined, no application is entertain within a period of 2 years from date of such
certification except where the registration of such trade union is cancelled before the expiry of three
years.
Duties of CBA
The Collective Bargaining Agent in relation to an establishment or group of establishment or
industry shall:
1. to undertake collective bargaining with the employer regarding matters of employment, non
employment, terms of employment or conditions of work other than matter which relates to enforcement of
law or right, guaranteed, secured, or settlement. Means that the matters which are settled by law cannot be
bargained.
2. Represent any workman in any proceedings.
3. Give notice of and declare a strike under the rules.
4. To nominate workmen on the Boards of Provident Funds and Workers Participation Fund.
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5. To nominate shop steward to create a link between the workers and employers.
6. To nominate representatives of the Management committee.
7. To appoint auditors to audit the accounts of the company from workers point of view.
Collective Bargaining Unit (CBU)
S. 25 explain the determination of CBU, and S. 2 (iv) defines CBU as, “ those workers or class of
workers of an employer in one or more establishments falling within the same class of industry whose terms
and conditions of employment are, or could appropriately be, the subject of collective bargaining together” .
S. 25 explain the determination of CBU if the Tribunal on application made in this behalf by:
a. a trade Union.
b. a federation of trade unions,
c. an employer.
d. on reference made by the Government.
After looking to the application if saw reasonable grounds regarding bargaining, so it shall determine
one or more collective bargaining units of such workmen in that establishment or group of establishment.
And Tribunal determines:
1. Determine and certify one or more CBU in such establishment.
2. specify the modification which in consequence of the decisions under this section, shall take effect in
regard to the registration of the trade unions and federation by such decision and certification of
CBA, or election of shop stewards, and workers representative for workers management council.
3. Specify the date or dates from the period for which all or any of such changes shall take effect. But
the date should not be within the period of two years.
4. Stop or prohibit the proceedings to determine CBA.
5. Take such measure or issue such direction to a Registrar as may be necessary and registrar should
compel with such order.
After the registration of CBU, no trade union shall be registered in respect of that unit.
Appeal: S.26 explains that: any person aggrieve by order of CBU passed by Tribunal may within 13
days prefer an appeal to the Lahore High Court. And the appeal shall be disposed by the HC which has
power to confirm, set aside or modify the order.
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Check off: Check off is a procedure which workman participates in monetary found of CBA. S. 27
explains that: if a CBA request the employer of the workmen who are member of TU shall deduct from the
wages of the workmen such amount toward their funds of TU as may be specified with the approval of each
individual workman names in the demand statement furnished by TU.
The employer who dedicates the amount for the fund within fifteen days has to deposit the entire amount
of deduction in the account of TU.
CBA shall maintain an account in any branch of NBP, BOP, Post office or Savings Bank an account for
the credit of entire amount of deduction.
The employer should assure the CBA the deduction of the amount from the workmen.
Shop Steward: shop steward to act as link between labour and management: S.28 explains that in
every establishment in which there is fifty or more workmen a shop steward must be elected by CBA, if
there is no CBA be elected by ballot held. And the employer has to facilitate the election. Shop steward
should help office for one year form the date of election. If there is any dispute raised in election the matter
must be referred to Registrar and his decisions shall be final.
Duties of Shop Steward: the shop steward shall act as link between the workers and the employers
assist the improvement of arrangement for the physical working conditions and production work in the shop,
section or department for which he is elected, help workers in the settlement of the problems either
connected with work or individual grievance of workman.
Workers Management Council (WMC)
1. Introduction
Section 29 of IRA explains this topic; this is a participatory approach, which the labour should
participate instead of commanding them. So WMC is a part of participatory approach of workmen with
employers.
2. Organization of WMC
1. There must be fifty or more workers.
2. At least six members should be elected.
3. There should be 50 % workers participation.
4. The employer’ s representative shall be from directors, or their nominees or senior executive.
5. The workers representative is nominated by CBA, if no CBA be elected by simple majority at a
secret ballot by all workmen.
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6. The workers participate in all meeting except in commercial and finical transaction.
3. Functions of WMC
The council shall function for securing and persevering good labour management relation and shall
look after the following matters:
1. Improvement in production.
2. Fixation of job and piece rate.
3. Planned regrouping or transfer of workers.
4. Laying down the principle of remuneration and new methods of remuneration.
5. Endeavor or maintain continuous sympathy between employers and workmen.
6. Settlement of difference and disputes through bilateral negotiations.
7. Security and employment for the workmen and condition of healthy and safe job.
8. Measures for facilitating good and harmonious working conditions in the establishment.
9. Facilities of education for the children of workmen.
10. Vocation training within the establishment.
4. Limitations: The management shall not take nay decisions in the following matter without the advice in
writing of the worker’ s representative:
1. Framing of service rules and policy about promotion and discipline workers.
2. Changing physical working conditions.
3. In-service training of workers.
4. Recreation and welfare of workers.
5. Regulation of daily working hours and breaks.
6. Preparation of leave schedule.
7. Matters relating to the order and conduct of workers within the establishment.
The workers representative gives advice and management shall call meeting of council within two
weeks, the management shall answer to the workers within six weeks. In case the advice is rejected by
management, the matter within 15 days may be taken to CBA for bilateral negations. The council may call
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for reasonable information. The CBA may lodge a complain to the Registrar regarding non setting up
function of the council.
5. Penalty: U/S 32. A person who contravenes with the council shall be punished with fine of seventy five
thousand rupees.
Individual grievances
According to section 33 of IRA a worker may bring his grievance in respect of any right guaranteed
or secured to him by any law or any award or settlement to the notice of his employer in writing, either by
himself or through shop steward, or CBA within three months of day of such grievance.
The employer within fifteen days of notice, communicate his decision in writing to the workers.
If the notice is brought through shop steward or CBA, the employer within seven days
communicates his decision in writing.
If the employers fail or worker dissatisfied with the decision, the shop steward may take the matter
to the labour court.
The labour court shall give decisions within ninety days from the date of matter brought before it.
The workmen also can take the matter to the Labour court after sixty days of decisions.
It is the discrimination of the court to go to the fact of the case and give an order as may be just and
proper to the circumstance of the case.
If the decision of the labour court is not complied with the employer shall be punished with
imprisonment of three months or fine of five hundred thousand rupees or both.
A person should not be prosecuted to the punishment except on a complaint in writing by the
workman if the decision in his favor is not implemented within the period specified in those decisions.
For the purpose of grievance, workers having common grievance arising out of common cause of
action may make a joint application to the Labour Court.
Negotiated Settlement of Dispute
Section 34 explains this topic as, if at any time an employer or CBA finds that an industrial dispute
has arises or is likely to arises, the employer or the CBA may communicate his or its view in writing either
to the Council or the other party. So there are three methods for the settlement of this dispute by the CBA or
employers:
1. Bilateral negotiations:
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1. Within ten days of communication of the receipt to the council. Further time may be given by the
parties.
2. Memorandum of settlement shall be recorded in writing and singed by both the parties, as in S. 2
(xxvii)
3. Failure of settlement is a failure of bilateral negotiations in the council.
4. The employer or CBA may within seven days form the period serve the notice of lock out or strike.
5. Period of notice of strike or lock out shall be 14 days as in S. 36.
2. Conciliation: conciliation must be before the strike or lock out. The work of conciliator is not to give
award. It is only to bring the parties into negotiable ground.
1. A party which serve the notice of strike or lock out shall deliver a copy to the conciliator who
shall proceed to conciliation in the dispute and also forward a copy to the labour court.
2. Conciliator as soon as possible call meeting of the parties to the dispute.
3. The parties shall send nominated person to negotiate and enter to an agreement binding on the
parties.
4. If conciliator deems necessary that the presence of an employer or office bear is necessary in
meeting shall give notice in writing require him to attend the meeting.
5. He shall give suggest to both the parties or modifications.
6. If settlements done he must send a report to the government along with the record of
memorandum of settlement signed by the parties.
7. If no settlement arrives, the conciliator may give further time as may be agreed by the parties.
3. Arbitration: the conciliation was mandatory but arbitration is the choice of the parties. If the conciliation
fails the conciliator try to persuade the party to arbitration.
1. The parties shall appoint the arbitrator and arbitration agreement.
2. The arbitrator may be the penal of the government or any other person agreed upon by the parties.
3. The arbitrator shall give award within the period of 30 days from the date of reference of dispute to
him.
4. After the award a copy should be forwarded to the party and Government.
5. The award of arbitrator shall be final and no appeal against that.
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6. Award shall be valid for the period which is specified in the award but shall not exceed two years.
Strike and Lock Out
Section 40 of IRA explains in detail strike and lock out. Generally strike is done by workers and lock
out is done by employers. If there is no settlement by parties through conciliation and they don’ t agree for
arbitration, the workmen may go for strike and the employer may declare a lock out on the expiration of the
notice upon a declaration by the conciliator that the conciliation process failed. And there are procedures for
strike and lock out as follow:
1. The parties to the dispute may, at any time, before or after the commencement of strike make an
application to the labour court.
2. If strike or lock out lasts for more than three days, the government may order prohibition of them.
3. Before expiry of thirty days the government can prohibit them by an order in writing, if it is satisfied
that it cause serious hardship to the community.
4. If government prohibits strike or lock out the case shall be referred to labour court.
5. After hearing both the parties to the dispute the labour court make an award as it deems fit, not
exceeding thirty days from the reference.
6. The court may allow make an interim award.
7. Any delay by labour court in making an award shall not effect the validity of ward.
8. Valid of the award of the court shall be specified in the award, not exceed two years
Illegal Strikes and Lock outs
1. Grounds of illegality: A strike or lock out shall be illegal if:
1. It is declared, commenced without giving notice to the other party to a dispute.
2. It is declared, commenced or continued by CBA who has not been registered.
3. A lock out is declared before the expiry of the period of the notice of lock out.
4. A settlement or award is in existence on any matter, a lock out or strike declared on the same issue
shall be illegal.
2. Procedure of control in case of illegal strikes and lock outs
1. An officer of the government, not below the rank of Assistant Director Labour Welfare, make
inquires in such manner as he thinks fit.
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2. After the inquire he shall service a notice to employers and CBA to come into the labour court.
3. The labour court after the considering the report within ten days may order to end the strike or lock
out.
4. if the employers or CBA disobey the order and the court think reasonable that the continuation of
strike may cause hardship to the community may order the attachment of establishment and appoint
an official receiver for such period as deems fit.
5. The officer receiver shall exercise the power of management and may transact business.
6. The labour court in appointing the receiver exercises the power of Civil Court under CPC.
7. If the workers disobey order of the court the court may pass order of dismissal against all or any
striking workers. And order shall have effect of cancellation of registration of trade union and
bearing all office bearer of such TU.
8. The labour Court may review its order.
9. The officer may call any party to the dispute to his office.
10. Where a party to an illegal strike or lock out on being required or bound under this section to appear
before officer or labour court does not appear, beside taking such other action as may be admissible
under the Act, proceed ex-parte.
Labour Judiciary
1. Labour Court
Constitution: a provincial Government in consultation with the Chief Justice of the respective High Court
establishes the required number of labour courts in the province. The establishment of the labour courts is
notified in the officials Gazette, indicating their territorial jurisdiction. A labour court shall consist of one
Presiding Officer appointed by the Provincial Government, in consultation with the Chief Justice of the
respective High Court. A person shall not be qualified for appointment as Presiding officer unless he ahs
been or qualifies to be judge or additional judge of the High Court or a District Judge.
Functions: a labour court shall have the following functions:
1. It shall adjudicate and determine an industrial dispute referred to it.
2. It shall enquire into or adjudicate any matter relating to the implementation or violation of a
settlement which referred to it by the PG.
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3. It shall try offences under the Act, and such other offences under any other law as Government
may notify.
4. Try offences punishable under S.64.
5. It shall exercise and perform such other powers and functions which are assigned to it by this
ordinance or any other law.
6. To deal with the unfair labour practice.
7. Grant such relief as it may deem fit including interim relief.
Procedure and Powers: the labour court shall follow a summary procedure provided under Code of
Criminal Procedure, 1898. In the matter of an industrial dispute, it is deemed to be a civil court. It has the
following powers:
1. Enforce the attendance of any person and examine him on oath.
2. Compel the production of documents and material objects.
3. Issue commissions for the examination of witnesses or documents.
Award and Decision of Labour Courts: the award or decisions shall be given in writing and delivered in
the open court. Two copies of the award or decision shall be sent to PG. if the federal government is a party
to a dispute, two copies of the award shall be forwarded to the government as well. The PG shall within a
period of one moth from the receipt of the copes of the award or decision, publish it in the official Gazette.
The award of labour court shall be final in some cases. However in some cases the award is
appeallable to the High Court within 30 days of its delivery to the concerned party. The decision of the High
Court is such appeal will be final.
2. Labour Appellate Tribunal
1. The government may by notification constitute as many Tribunals consisting one member as it may
be necessary. PG explains jurisdiction of these tribunals.
2. The member of Tribunal shall be person who is judge or an additional judge of LHC.
3. The Tribunal may on appeal confirm, set aside, vary or modify the award, decisions or sentence
passed under S.33, 42 and 44. And shall exercise all powers which have been conferred to him.
4. The decisions of Tribunal shall be delivered within a period of one hundred and twenty days
following the date of appeal.
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5. The Tribunal by its own motion may call for the record of any case or proceeding in which a labour
court within its jurisdiction has passed an order for the purpose of correctness, legality, or prosperity
of such order.
6. The Tribunal shall follow such procedure as may be prescribed.
7. The Tribunal may punish for the contempt of its authority or labour court.
8. Any person convicted for contempt may be punished for any period or pay fine exceeding fifteen
thousand rupees, within thirty days.
9. The tribunal may transfer any application to any other such Labour Court, by its own motion or by
application of the party.
THE WORKMEN’ S COMPENSATION ACT, 1923 (WCA)
An Act to provide for the payment by certain classes of employers to their workmen of compensation for
injury by accident.
S. 2 (n) Workman: mean any person other than a person whose employment is of a causal nature and who
is employed otherwise than for the purpose of the employer’ s trade or business who is:
i. a railway servant.
ii. Employed on monthly wages not exceeding three thousand rupees, in any such capacity.
S. 2 (g) Partial disablement: means where the disablement is of temporary nature, such disablement as
reduces the earning capacity of a workman in any employment in which he was engaged at the time of the
accident resulting in the disablement and where the disablement is of a permanent nature, such disablement
s reduces his earning capacity in every employment which he was capable of undertaking at that time
provided that every injury specified in Schedule I shall be deemed to result in permanent partial
disablement.
Employers Liability for Compensation
Employer liable: the employer is liable to pay compensation to a workman if personal injury is
caused to a workman by accident arising out of and in course of employment. Besides injury, the employer
is liable to pay compensation if the workman contracts any of the occupational diseases specified in
Schedule III of the Act. The employer is liable in the following cases:
a. Personal Injury: an employer is liable to pay compensation to a workman if personal injury is
caused to him by accident arising out of and in the course of employment.
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b. Out of employment: an accident arising out of employment means that there must be some relation
between the injury and the accident and the work done in the course of employment. Two conditions must
be fulfilled first injury must have resulted from some risk incidental to the duties of the service. Second at
the time of injury worker must have been engaged in the business of the employer.
c. In the course of employment: it refers to the time during which employment continues.
Employer not liable: the employer is not liable for compensation n the following cases:
1. Where the injury does not result in the disablement for more than 4 days.
2. Where the injury, not resulting in death caused by an accident which is directly attributed to:
1. The workman having been at the tie of accident under the influence of drinks or drug.
2. The willful disobedience of the workman to an express order or rules framed for securing safety.
3. The willful removal or disregarding by the workman of any safety guard or other device which he
knew to have been provided for securing safety.
Occupational Diseases: they are explained in Schedule III, which are:
Anthrax, Compressed air illness, poisoning by lead, lead poising or its sequelea, Mercury poisoning,
poisoning by benzene, Chrome ulceration, Arsenical poisoning, pathological manifestations, radium and
radio active, X-ray.
Amount of Compensation: the amount of compensation payable to a workman depends on the nature of
the injury caused by the accident and the amount of average monthly wages of the workman concerned. The
amount of compensation shall be as follow:
1. Death: where death results from an injury to a workman, whose receipt of monthly wages not
exceeding 6000, the amount of compensation payable to heirs be two hundred thousand.
2. Permanent Total Disablement: the amount of compensation payable shall be also two hundred
thousand rupees.
3. Permanent partial Disablement: where permanent partial disablement results from the specified in
Schedule I, compensation will be calculated on the basis of percentage of the loss of earning, capacity as
laid down. In case of an injury not specified such percentage of compensation payable n case of permanent
total disablement as is proportionate to the loss earning capacity permanently caused by the injury.
4. Temporary Disablement: where temporary disablement, whether or partial result from injury
arising out of the employment, the workman drawing wage 6000 p.m, the compensation payable to him
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shall be ½ of the monthly wages during the period of disablement. For chronic disease, 1/3 of the monthly
wages will be paid to him during disablement.
Distribution of Compensation: Following are the rules regarding distribution of compensation:
1. Compensation for death and lump sum amount due to a woman or person under legal disability
must be deposit with the Commissioner.
2. In case of deceased workman, an employer man make to any dependant advances on account of
compensation not exceeding an aggregate of 100.
3. in compensation to be payable not less than 10 may be deposited with the Commissioner.
4. the receipt of the commission shall be sufficient discharge in respect of any compensation
deposited with him.
5. After deposit of compensation the commissioner shall deduct the cost of workman’ s funeral
expenses to an amount not exceeding 25 and pay the same to the persona who has incurred such expenses.
6. The commissioner may call upon the dependants to appear before him for the distribution of the
compensation.
7. If the employer is satisfied that no dependant exists, he shall repay the balance of money to the
employer.
8. The commissioner shall on the application by the employer, furnish a statement showing the detail
of disbursements made.
9. The compensation money will be distributed among the dependants in such proportions as the
commissioner thinks ft. he may pay the who to one person.
10. Except in case of a women or a person under legal disability of compensation will be paid to the
person entitled.
11. The money payable to women or person under legal disability may be invested as the
commissioner thinks fit.
12. The orders of the commissioner regarding the distribution of compensation may be varied later if
necessary.
13. notice must be given to the parties effected.
14. if the commissioner varies an order not the ground that the compensation has been obtained by
fraud or other improper means by any person the amount may be recovered from him.
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THE INDUSTRIAL AND COMMERCIAL EMPLOYMENT (STANDING ORDERS)
ORDINANCE, 1968 (ICESO)
S. 1 (4) It applies to:
a. every industrial establishment or commercial establishment wherein twenty or more workmen
employed, directly or through any other person during twelve months.
c. such classes of other industrial and commercial establishment as Government may, from time to
time, by notification in the official Gazette, specify in this behalf.
S. 2 (a) “ collective agreement” means an agreement in writing intended to specify the conditions of
employment, and entered into between one or more employers on the one hand, and one or more trade unions or,
where there is no trade union, the duly authorized representatives of workmen, on the other;
(c) “ Employer” means the owner of an industrial or commercial establishment to which this
Ordinance for the time being applies, and includes–
(i)
In a factory, any person named under clause (e) of sub-section (1) of section 9 of the
Factories Act, 1934 (XXV of 1934), as manager of the factory;
(ii)
In any industrial establishment under the control of any department of the Federal] or
any Provincial Government, the authority appointed by such Government in this behalf, or where no such
authority is so appointed, the head of the department;
(iii)
In any other industrial or commercial establishment, any person responsible to the
owner for the supervision and control of such establishment;
3.
Enforcement of Standing Orders. – In every industrial or commercial establishment, conditions of
the employment of workmen and other incidental matters shall, subject to the other provisions of this
Ordinance, be regulated in accordance with the Standing Orders.
4.
Modification of Standing Orders. – The Standing Orders may be modified by means of a
collective agreement and not otherwise:
Provided that no such agreement shall have the effect of taking away or diminishing any right or
benefit available to the workmen under the provisions of the Schedule.
SCHEDULE
STANDING ORDERS
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6.
Shift working. – More than one shift may be worked in a department or any section of a
department of the industrial or commercial establishment at the discretion of the employer.
If more than one shift is worked, the workmen shall be liable to be transferred from one shift to
another. No shift working shall be discontinued without one month’ s notice being given prior to such
discontinuance, provided that no such notice shall be necessary, if, as a result of the discontinuance of the
shift, no permanent employee will be discharged. If as a result of discontinuance of shift working, any
permanent workmen are to be discharged they shall be discharged having regard to the length of their
service in the establishment, those with the shortest term of service being discharged first. If shift working is
restarted, a week’ s notice thereof shall be given by posting notice at the main entrance of the establishment
and the time-keeper’ s office, if any, and the workmen, discharged as a result of the discontinuance of the
shift, shall, if they present themselves at the time of the restarting of the shift, have preference in being reemployed, having regard to the length of their previous service under the establishment, those with the
longest term of service being re-employed first.
7.
Attendances and late coming.– All workmen shall be at work at the establishment at the time fixed
and notified under Standing Order 3. Workmen attending late shall be liable to the deduction provided for in
the Payment of Wages Act, 1936 (IV of 1936).
8.
Leave. – 1) Holidays and leave with pay shall be allowed as hereinafter specified:(a)
annual holidays, festival holidays, casual leave and sick leave as provided for in Chapter IV-
A of the Factories Act, 1934 (XXV of 1934); and
(b)
Other holidays in accordance with the law, contract, custom and usage.]
(2)
A workman who desires to obtain leave of absence shall apply to the employee, who shall
issue orders on the application within a week of its submission or two days prior to the commencement of
the leave applied for, whichever is earlier provided that if the leave applied for is to commence on the date
of the application or within three days thereof, the order shall be given on the same day. If the leave asked
for is granted, a leave pass shall be issued to the workman. If the leave is refused or postponed, the fact of
such postponement or refusal and the reasons therefor shall be recorded in writing in a register to be
maintained for the purpose, and if the workman so desires, a copy of the entry in the register shall be
supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the
employer who shall send a written reply either granting or refusing extension of leave to the workman if his
address is available and if such reply is likely to reach him before the expiry of the leave originally granted
to him.
11.
Stoppage of work.– (1) The employer may, at any time, in the event of fire, catastrophe, break-down
of machinery or stoppage of power supply, epidemics, civil commotion or other cause beyond his control,
stop any section or sections of the establishment, wholly or partially for any period or periods without
notice.
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(2)
In the event of such stoppage during working hours, the workmen affected shall be notified by
notices put up on the notice board in the departments concerned or in the office of the employer, as soon as
practicable, when work will be resumed and whether they are to remain or leave their place of work. The
workmen shall not ordinarily be required to remain for more than two hours after the commencement of the
stoppage. If the period of detention does not exceed one hour, the workmen so detained shall not be paid for
the period of detention. If the period of detention exceeds one hour, the workmen so detained shall be entitled
to receive wages for the whole of the time during which they are detained as a result of the stoppage. In the
case of piece-rate workers, the average daily earning for the previous month shall be taken to be the daily
wage. Wherever practicable reasonable notice shall be given of resumption of normal work.
(3)
In cases where workmen are laid-off on account of failure of plant, a temporary curtailment of
production or any stoppage of work for reasons mentioned in clause (1), they shall be paid by the employer an
amount equal to one-half of their daily wages during the first fourteen days of lay-off as compensation. When,
however, the workmen have to be laid-off for an indefinite period beyond the above-mentioned fourteen days,
their services may be terminated after giving them due notice or pay in lieu thereof.
(4)
The employer may in the event of a strike affecting either wholly or partially any section or
department of the establishment close down, either wholly or partially, such section or department and any
other section or department affected by such closing down. The fact of such closure shall be notified by
notices put up on the notice board in the section or department concerned and in the time-keeper’ s office, if
any, as soon as practicable. The workmen concerned shall also be notified by a general notice, prior to
resumptions of work, as to when work will be resumed.
12.
Termination of employment. – (1) For terminating employment of a permanent workman, for any
reason other than misconduct, one month’ s notice shall be given either by the employer or the workman.
One month’ s wages calculated on the basis of average earned by the workman during the last three months
shall be paid in lieu of notice.
(2)
No temporary workman, whether monthly-rated, weekly-rated, daily-rated or piece-rated,
and no probationer or badli, shall be entitled to any notice if his services are terminated by the employer,
nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer
if he leaves employment of his own accord.
(3)
The services of a workman shall not be terminated, nor shall a workman be removed, retrenched,
discharged or dismissed from service, except by an order in writing which, shall explicitly state the reason for the
action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge
or dismissal, he may [take action in accordance with the provisions of ] Section 25-A of the Industrial Relations
Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the
redress of an individual grievance.
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(4)
Where the services of any workman are terminated, the wages earned by him and other dues,
including payment for unavailed leave as defined in Clause (1) of Standing Order 8 shall be paid before the
expiry of the second working day from the day on which his services are terminated.
(5)
The services of a permanent or temporary workman shall not be terminated on the ground of
misconduct otherwise than in the manner prescribed in Standing Order 15.
(6)
Where a workman resigns from service or his services are terminated by the employer, for any
reason other than misconduct, he shall, in addition to any other benefit to which he may be entitled under this
Ordinance or in accordance with the terms of his employment or any custom, usage or any settlement or an
award of a Labour Court under the Industrial Relations Ordinance, 1969 (XXIII of 1969), be paid gratuity
equivalent to [thirty days], wages, calculated on the basis of the [wages admissible to him in the last month of
service if he is a fixed-rated workman or the highest pay drawn by him during the last twelve months if he is a
piece-rated workman], for every completed year of service or any part thereof in excess of six months:
Provided that, where the employer has established a provident fund to which the workman is a
contributor and the contribution of the employer to which is not less than the contribution made by the
workman, no such gratuity shall be payable for the period during which such provident fund has been in
existence [* * *]
[Provided further that if through collective bargaining the employer offers and contributes to an
“ Approved Pension Fund” as defined in the Income Tax Ordinance, 2001 (XLIX of 2001), and where the
contribution of the employer is not less than fifty per cent of the limit prescribed in the aforesaid Ordinance,
and to which the workman is also a contributor for the remaining fifty per cent or less, no gratuity shall be
payable for the period during which such contributions has been made.]
(7)
A workman shall be entitled to receive the amount standing to his credit in the provident
fund, including the contributions of the employer to such fund, even if he resigns or is dismissed from
service.
(8)
Where a workman dies while in service of the employer, his dependant shall be paid gratuity in
accordance with the provisions of clause (6):
Provided that no payment of gratuity in such case shall be made otherwise than by a deposit with the
Commissioner, who shall proceed with the allocation of the deposit to the dependant of the deceased in
accordance with the provisions of section 8 of the Workmen’ s Compensation Act, 1923 (VIII of 1923).
(9)
If the employer fails to deposit the amount of the gratuity under clause (8) the dependant of
the deceased may make an application to the Commissioner for the recovery of the amount thereof.
Explanation– ” Commissioner” and “ dependant” in this Standing Order shall have the same
meanings as are respectively assigned to them in the Workmen’ s Compensation Act, 1923 (VIII of 1923).]
16.
Eviction from residential accommodation. – (1) Notwithstanding the provisions of any law for the
time being in force, including those of the West Pakistan Urban Rent Restriction Ordinance, 1959 (W.P.
Ordinance No. VI of 1959), a workman occupying residential accommodation provided by his employer,
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who has resigned or retired, or has been retrenched, discharged or dismissed, or whose services have been
terminated, shall vacate such accommodation within a period of two months from the date of his
retrenchment, discharge, dismissal or termination of services, as the case may be; provided that in case of
reinstatement of the workman, the employer shall be bound to provide him with similar residential
accommodation from the date of such reinstatement or pay him per mensem an allowance in lieu thereof at
the rate of three times the wages of the last full working day.
(2)
If a workman, who has been retrenched, discharged or dismissed, or whose services have been
terminated, fails to vacate any residential premises provided by the employer, within the period specified in
clause (1), the employer may lodge a complaint with a magistrate of the first class having jurisdiction in the area
where such residential accommodation is located.
(3)
The magistrate on hearing the parties, may, notwithstanding anything contained in any other
law for the time being in force, summarily decide the case and may pass an order of eviction, giving the
workman a reasonable time to vacate the premises.
(4)
Where a magistrate passes an order for the eviction of a workman, he may also pass an order
directing a police officer to evict such workman and any other person occupying through such workman the
residential accommodation in respect of which the order of eviction is made, if the workman or such other
person fails to vacate the accommodation within the time allowed under clause (3).
(5)
A police officer acting under an order of the magistrate under clause (4), shall notify the
occupants of the premises in question the contents of the magistrate’ s order and his intention to enter on
such premises, and shall allow at least two hours’ time to the occupants to vacate the premises and shall
give all reasonable facilities to the children and female occupants, if any, to withdraw there‫ ك‬from before
applying any force for taking over the possession of such premises.
(6)
Where a workman occupying residential accommodation provided to him by the employer
dies, the procedure prescribed in this Standing Order shall mutatis mutandis and so far as applicable apply,
for evicting any person, who was occupying the premises through such workman, and after his death
continues to remain in occupation thereof.
19.
Certificate of termination of service. – Every permanent workman shall be entitled to a service
certificate at the time of his dismissal, discharge, retrenchment or retirement from service.
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Pakistan Penal Code II
Prepared by: Mohammad Ismail
Introduction to Context
It is a theoretical subject. Two reforms of islamization were made in PPC.
1. 1979 four Hudood Ordinances by Hanafi School of thought were introduced:
a. against property: Sarqa and Heraba.
b. against Zena: Stapes and stone.
c. Qazf: Le`an. Included in Social Muslim Act. Surah Nur, the offence of Qaz and its punishment
and also in this surah there is Le`an (‫ )لعبن‬but it was deleted from Hodood ordinace and was put under
Muslim Social ordinance. According to Hanfi School of thought in Qazf the convict is rendered
d. Intoxication: 80 lashes, no direct punishment in Quran but in Ijma.
2. in 1990.
Murder Homicide
Culpable Homicide: the murder which is liable to punishment. S. 299 definition of culpable homicide. S.300
Qatle Amad, and seven exceptions are there. S.302 punishment for murder.
Homicide: Destruction of human life which is not punishable.
Exceptions: seven exceptions from being under culpable homicide.
1. Sudden and grave provocation: it effects the condition of the offender.
2. Mistake: Qatli Khata, two types ‫خطبءكفيكالفعلكوكخطبءكفيكالقصه‬
3. Accident: any rush or negligent conduct, any target without specification of any person.
4. Public Servant: S. 76, in good faith, performing his duty, firing in demonstration in good faith.
5. Self Defense: Ss.96-100 but with limitation which is imposed by the law. The offender is bound to
prove.
6. Sudden fight: sudden quarrel, no pre-mediation, and intention.
7. Consent: death caused with the consent of victim, such as boxing, racing, and any sport, etc.
Types of Qatl: According to different school of thought
1. Ahnafs five different types: ‫كقتلكجبرىكمجرىكالخطبء‬،‫كلبلسببك‬،‫كخطبءك‬،‫كشب كعمهك‬،‫عمهك‬
2. Maliki: Two types: ‫عمهكوكخطبء‬
3. Shafi and Hanabila: three types: ‫كخطبء‬،‫كشب كعمهك‬،‫عمهك‬
S. 315 explain Qatli Shibhi Amad: the doubt should be proved with evidence.
Hurt: simple hurt and grievous hurt.
Hurt liable for qisas: we have to insure the health of offender as well, the health of him is important.
According to Ahnaf there are several types of offence of hurt: ‫ك‬،‫كدامغةك‬،‫كمنعقلةك‬،‫كهبشمةك‬،‫كغيركجبئفةك‬،‫ جبئفةك‬etc.
310
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Self Defence
Self defence of once life or the life of others or property or property of some body else. What is the
extent of this right? What are the limitations of this right? What is the extent to which a person can exercise
in the name of self defence?
S.96: Exception to criminal liability, a person does anything which is an offence but he is not liable.
Nothing is an offence which is done in the exercise of the right of private defence.
If we go through the commentaries of jurists we will find two things some says it is an exception to
the criminal liability, some says it is justification even for the commission of an offence. According to PPC
it is an exception to criminal liability, a person does some offence but according to some reason it is not to
be threat as an offence.
Self defence is right of the person who is subjected to an offence, a person who is committing some
offence he has no right of self defence.
Nothing means whether we kill somebody or injury, confinement, etc. if it is done in exercise of self
defence it would not be considered as an offence. And this exception is created for those persons who find
themselves in danger or threaten situations. And this threat or danger must be the product of a diseased man,
some body has some psychological problem, and somebody attacks him so he takes self defence.
Let there be something which amounts to an offence created by PPC, let somebody try to kill us, or
injure us or life or property, in response to that if any thing happened we are not responsible for law. But if
there is something to be committed in future, there is nothing of self defence. It is only to the response to
that thing which amounts to an offence.
Security of life is the most cherished right which every one of us want. It is the gift of Allah, human
being is not allowed to suicide. If human being face with the threat possibility there are two option; kill or to
be killed. If we are killed we did not commit anything or any offence, but should we let the person to do so?
And we should not take any resistance. So to safeguard life, honor, dignity, and property, law has made an
exception to the criminal liability that does not let the criminals to carry out their plan. Preventive or
preemptive action can also be taken; this is known as the right of self preservation or self defence. But it is
not absolute concept, there are some conditions, the foremost condition is it is be exercised only in act
which is an offence, where an act is done because just we don’ t like that and does not amount to an offence
so there is no right of private defence. It is the matter of fact. It is an absolute right available to all of us
without looking to citizenship or else.
S.97: Right of private defence of the body and of property: Every person has a right, subject to restriction
of S.99 to defend: Firstly: his own body, and the body of any other person, against any offence affecting the
human body. Secondly: the property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of the theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
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Here two situations in which right of private defence can be exercised:
1. In relation to life
2. In relation to property.
Life: it is a public oriented right not just private, other’ s security of life, it is threatened it can be threatened
as self defence. Security of life of others is also permitted under this section. Here body is mentioned and
body does not just mean life, it can be an assault, attempt to kill, wrongful confinement, kidnap, rape, etc.
Property: some specified offence relating to the property in wish we can exercise the right of private
defence, such as theft, robbery, mischief (any destruction of property, crops) and trespass, this is to secure
the entrance into the property of other unlawfully. A person enters my property against my wish, or he
enters to my property even with my wish but he does something there against my wish this is a criminal
trespass. So here in this Section four offence is mentioned that we have right of private defence against the
property.
S.98: Right of private defence against the act of a person of unsound mind, etc: When an act, which would
otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of
understanding the unsoundness of mind or the intoxication of the person doing that act or by reason of any
misconception on the part of that person, every person has the same right of private defence against that act
which he would have if the act were that offence.
If a child under seven years killed some body he is not guilty of an offence but if we are to be killed
by a child of under seven years by a gun in his hand, under this section we can have right of self defence to
the person who has immunity from criminal liability. A person suffering from mental diseases, if he
commits an offence he has criminal liability, because he does not have rational judgment. So under this
section the physical and mental capacity of the person is not matter, what matter is a fact that he is being
threatened or in danger to his life or property, just as we can exercise to an ordinary person this right such as
we can exercise to the person who has immunity from the criminal liability.
Disable person, a person who enjoy immunity from criminal liability, we can exercise right of
private defence against him, the mental capacity cannot prevent to exercise this right, such as child or
unable, insane person if threat our life or property. Five circumstances mentioned here:
1. Youth, physical immaturity, under 7 years who is immaturity.
2. Seven to 12 years who is mental maturity.
3. Insanity, lack of mental capacity. He has no idea that what he is doing. He can harm himself or
harm other. If he harms other we can exercise right of self defence.
4. Intoxicated person, against his wish.
5. Misconception, mistake of fact. Such as security guard shot some body in the mid night, he
would not be given any punishment.
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This right is not depended to the body of mental capacity of that person just threat is enough to
exercise the right of self defence.
S. 99: Acts against which there is no right of private defence. Refer to the section in PPC.
This section is limitation to the exercise of self defence. A police officer is authorized to arrest a man
on the base of warrant; he is performing his duty and authority, so there is no right of self defence against
the police or public servant who is performing his duty. In this exception there is a common exception in
order to deprive a person from private defence the public servant has to disclose his authority. If he does not
do such and we do some preservation of private defence it would be not covered under this. Police working
in normal cloth or uniform, operating under cover that cannot be able to disclose and under misconception
done offence by the name of self defence, it can be covered by this section.
If we have time to recourse the protection from the law authority there is no right of private defence.
Cases of extortion (pay this much other wise this will happen to you) in this circumstances there is no
imminent threat to our life or property, we can refer our case to the police authority and they can search for
that person, and can discover him.
An excessive use of force cannot be used by the name of self defence. It must be proportionate to
that threat which we are facing that. If a person is unarmed and still threaten us, but we cannot take our gun
and kill or injure him. A balance has to establish between the threat and the action which is being taken.
Two limitations mentioned here:
1. What ever done by public servant on apprehension by the public servant himself.
2. The act by the direction public servant not by himself but by his subordinator.
Explanation: 1, 2: for the above two, identity has to be disclosed, then it would be protecting by self
preservation if not shown.
The extent to which the right may be exercised: if is excessive and more harm happened then
necessary so it is not immune.
It is upon the accuse person to prove that he did not excess the right of private defence and he just
exercised it, he used the minimum or proportionate use of force.
S. 100: When the right of private defence of the body extends to causing death: refer to the Section in PPC.
This section explains the maximum extend in which a person can exercise in the name of private
defence. Killing of the person in six different circumstances in which the killing is justified. But we have to
keep in mind section 99 that the reaction should be proportionate to the action or threat. An attempt which
caused death or grievous hurt in reaction to that attempt we can exercise right of self defence to the extent
that it might go to the death of that person or hurt. But this is to be established on the court of law, and
burden of proof is on accused. We cannot be judge of our own cause, sense we were acting in right of self
defence, so individual is not allowed to judge that it was self defence. In order to insure balance between the
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individual of the society the matter would go to the court of law, and it most be determined by the court of
law that:
1. There was any justification for the exercise of private defence. And answer to this question we
would refer to S.102 that whether it was attempt or threat, if not then no justification to attempt.
2. Conviction can on the ground that there was no right of self defence and punishment can be
awarded.
3. That favor the accused that on base of S. 96, the right of self defence has been exercised, nothing is
an offence which is done in the name of self defence.
So there should be justification for his act. And burden of proof on accused. There are six circumstances
are as follow:
1. Assault which may result to death.
2. Assault which may result to grievous hurt.
3. Assault to intention of rape.
4. Assault to unnatural lust. Section 377.
5. Assault of kidnapping or abduction.
6. Assault of wrongful confining of a person.
All the above is related to one offence which is called assault and assault is not actual use of force but
threat, and this threat must be conveyed through gestures, and gesture could very in different cases. This
gesture has to convey the message that the offender is going to commit an offence, which could result into
the death or grievous hurt or rape, abduction, etc. we are not concerned with the nature of the mean which is
to be used.
S. 101: when such right extends to causing any harm other than death: if the offence be not of any of the
descriptions enumerated in the last preceding section, the right of private defence of the body does not
extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned
in section 99 to the voluntary causing to the assailant of any harm other than death.
This section deals that causing any harm or injure if section 100 is impossible to be exercised is the
right to exercise self defence.
S. 102: Commencement and continuance of the right of private defence of the body: 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 though the offence may not have been committed; and it continues
as long as such apprehension of danger to the body continues.
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The language of this provision shows that the commencement of an action is fixed by law itself, if
offence is committed; it is nothing to defend either to our life or property. So it is to start thinking
preventive action before actual losses happen. Two important principles explained in this section:
1. The threat to commit an offence which causes apprehension of danger to our life
2. Attempt to commit an offence.
This is technically mean assault. Assault does not just involve use of force; Section 351 is the base
of S.102. This section gives us the meaning of assault; threat somebody to use the force. Generally assault
does not involve use of force; it is just threat to use force. Exp: I have a gun in my hand and point to
somebody, even though I don’ t use that gun, it gesture a threat to other person, and it will come to his mind
that he is going to attack me and this or that thing will be happened. So under this section the death will be
the major consequences of that threat or assault is consequences of that threat. Don’ t wait until the actual
committing of an offence; don’ t wait until the actual threat. Even if gesture is made that we are about to
use of force is enough to exercise the right of self defence.
Criminal force is an offence which involve in an offence, the gravity of force is not important,
something must be brought in context with some body, even to flash water on someone intending criminal
force on him. We let some animal on some individual it is criminal force. It is not necessary that all the time
some gun is used. Any object is use, it is not necessary.
Private defence depends on reasonable danger, and reasonable threat, this apprehension to the
security of life, or attempt. And attempt is the first step to an offence, logically it is not possible to a victim
to negotiate with the accused or offender that you made the first attempt and it failed, whether you want the
second attempt? Or not? When a person is subjected to any kind of attempt he is not subject to wait for the
second attempt because no negotiation can be taken during this time. According to this provision we have
right of private defence when attempt is done at the first time (the moment which the first attempt is made
we get the right to exercise the right of self defence under this provision)
Attempt would require actual use of force, either use of some weapon. Without that the attempt is
not possible.‫ ك‬A person might have motive against some person. On the base of intention no body could be
convicted of an offence, let that matter of motive converted to apparent, and that apparent may or may not
success, but if an attempt is done without success we have not to wait until second attempt. So there is no
right of private defence in intention. Then preparation we have no right also because there is no direct threat
to our life. The third step to commit an offence is attempt, where attempt is made we are directly threaten,
we have right of self defence. Self defence is not an anticipatory; it is a reaction to an action. If there is no
action there is no reaction.
The threat must be direct, and not by other ways, such telephone, telex, mail, etc. the threat must be
as to create real danger to life directly and immanent fear must be there, the hollow threat must not create
the right of self defence in the mind of any person. So we have to keep in mind the below situations for
directly threat:
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1. The mental capacity. A person who is mentally diseased, even he makes an statement shows the
threat, but his statement has no reasonable apprehension to be converted in to danger.
2. The distance which the threat occurs.
3. Age.
4. The weapon, etc, it must be considered that may cause danger to our life and create as impression
to reasonable mind.
In the absence of the two principles, the right to exercise private defence disappears.
S.351: Assault.
S.103: When the right or private defence of property extends to causing death: the right of private defence
of property extends, under restrictions mention in section 99 to the voluntary causing of death or of any
other harm to the wrong doer, if the offence, the committing of which, or the attempting to commit which,
occasion the exercise of the right be an offence of any of the descriptions hereinafter enumerated namely:Firstly - Robbery;
Secondly: House-breaking by night;
Thirdly: Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as
a human dwelling, or as a place for the custody of property.
Fourthly: Theft, mischief or house-trespass, under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequence, if such right of private defence is not
exercised.
This section and on ward two sections explain private defence of property. This section explains that
there is right of self defence of property to the extend of death of the offender. The offence must be:
1. In progress, committing. If it is in progress we can exercise right of self defence of property.
2. Attempt to commit the offence.
Offence of theft under this section there is no defence to kill that person. Theft is not included
because it always done when the person is not present.
1. Robbery )‫ (سرقةكلبلجبر‬can be in plea for private defence. In case of robbery we are induced into
the property. In robbery consent is there, but this consent is induced consent, such also in
extortion. At gun point the property has been taken from the person. It means he has two options
either protect himself or property. Robbery is most dangerous then theft. Sometimes there are
killing in robbery as well not because it was intention but because that the owner of the property
disturbed with the robbery. So the owner has right of self defence to kill this person, but we have
to look to the circumstances of the robber. If he carries some weapon with him which threats our
life, so it is justification, but if he has not so much with himself and we can over-roll him without
killing so right of killing is prohibited.
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Criminal tress pass: S.97 refers to criminal trespass, to enter‫ ك‬into any building with the intention of
committing any offence. S.441 deal with criminal trespass, to enter into the property without the permission
of the owner is criminal trespass. There are roots for entering the house, ordinary passage to enter the
building, just passing of building without the permission of the owner of building even without using the
force is criminal trespass.
2. House breaking by night:
a. To enter any house forcibly. Kill the guard and enter the house, so we are committing
house break. If the guard is not available the person who is responsible of the house or
any body there we overcome and enter the house is house breaking.
b. Through unusual means: To enter the area of privacies with unusual means. Which are
made by the culprit such scalping wall, rope, create the hole in wall, bluest roof away,
etc. It is more serious if it is done in the night than doing house trespass in the day. So
housebreaking at night we have right of self defence even the death of the culprit.
3. Mischief by fire: this is grievous mischief not simple. The result of mischief is property + life.
Such as smashing of traffic lights in demonstration is a mischief, breaking the window of any
house is mischief, to fire any car or bus is mischief. Mischief could be grievous in nature as well
simple. Here we are not concerned with ordinary mischief. Mischief here if a place is put in fire
for the purpose of destruction which may result the loose of life or property of any person. It
must be done with fire, not ordinary mischief is included here.
4. House trespass, theft, mischief if they are result threat to the life, but it is difficult to prove. The
above three clauses are in normal situation, but this situation is little different than the others.
S.104: When such right extends to causing any harm other than death: if the offence the committing of
which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft,
mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section that
right does not extend to the voluntary causing of death, but does extend, subject to the restrictions
mentioned in Section 99, to the voluntary causing to the wrongdoer of any harm other than death.
S. 105: Commencement and continuance of the right of private defence of property. Refer to the section in
PPC.
S.106: Right of private defence against deadly assault when there is a risk of harm to innocent person: if in
the exercise of the right of private defence against an assault which reasonably causes the apprehension of
death, the defender b e so situated that he cannot effectually exercise that right without risk of harm to an
innocent person, his right of private defence extends to the running of that risk. We cannot save our life
without causing harm to an innocent, a mob about to attack our house, there are some aggressors, and some
innocents, if I fire, I am unable to distinguish who is innocent or who is offender. I have right to fire and at
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the result if some innocent is killed. But if the person can distinguish between them so he is not allowed to
do so.
Abetment
S. 107: abetment of a thing.
S.337 Cr.P.C Tenders of pardon to complicity. The worthy of Witness and tender of pardon are
found in this section we are not concerned with the witness, reference is here to different people who
participated in the commission of an offence which take the shape of abetment. Five expressions are used in
this section; a person may take direct part, indirect part, or become a prevue, or a principal or abettor.
Accomplices must have some part in the commission of an offence. If a person keeps his intention to
himself then his family member or other friends are not part of that intention only possible allegation is to
them harboring. If he shares his criminal intention with other members this is complicity or participation. If
a person is charge with complicity or participation it has to be on the bases of some principles, those
principals are not available in crpc or ppc, but there are some ideas regarding this, which the person can be
accomplice or can be charge of abetment. Participation generally can be directly in nature and indirectly in
nature as follow:
1. Direct: Principal offender/ perpetrator, a person who directly involves without taking help of other
person. And two possible rules are there:
a. Active: a person can play an active rule in the commission of an offence. First degree principal
offender, a person who directly takes part in the offence. If he takes actual part in the commission of an
offence it is active.
b. Passive: second degree principal offender. Both of them are present in the commission of an
offence. One takes direct part, the other indirect part. The number is not necessary to be two it can be more.
2. Indirect: In some cases there are individual who shares the criminal plan but he is not prepared to be
present in the place of the commission of the offence, they operate the harm behind, on their command
some body else commits the offence, those individual who don’ t take direct party but indirect part they are
known as accessories. They are of two types:
a. accessories before the commission of the offence.
b. accessories after the commission.
If a person orders any other person to dispose of a death body and he does so. He finishes all the
evidence of that death body we cannot understand who has murdered it, and why? So disposal of death body
is cover of murder and he tills him that he killed him. This individual who dispose the death body also
become accessory or a privy to an offence, he is a part of the link. And he helps after the commission of an
offence. As in S.201 causing disappearance of evidence and it is an offence. And it is a piece of evidence so
that person disappeared this piece of evidence; he committed also offence U/s 201. Disposal of stolen
property, some individual buy stolen property knowing that it is stolen property, and dispose the sign of that
stolen property. And s.411 deals with dishonestly receiving stolen property, it is an offence that any person
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held the theft to dispose the property, whether he is the dealer, but he is in the business of disposing the
stolen property. Any help to the culprit will make the other person privy but it is after the commission of
any offence. But indirect participation in the offence does make the person to abet the person. And
abatement is before, or during the commencement of the offence and not after the commencement of the
offence. So the above two case disposal of death body or disposal is not abetment, but that is accessory.
Abetment is more serious then the actual commission of an offence. I am a powerful person, and I
have any criminal intention but do not want to destroy my public image or personality, i look to the
individual who carries this task of criminal intention into the practice because of so many causes such as
need of money, economic difficulties, etc. so if any body acts as my agent, because of hoping of some
money. So the person who abets he is worst then the person who carries the task because the person who
carries is either in need of money, or job, or etc and he wants to secure them. The mere asking any person to
do any illegal thing is enough to charge the person of abetment. Law is not concern with consequence stapes
which could be taken. Just mere till of the other person can be enough for abetment.
S.107 deals with that how abetment could be committed. Three principles for committing an
abetment:
1. By instigate any person to do any thing. To simulate a person to do any criminal action, kill my
enemy I pay you money. Even if other person rejects the offer the person is committed the offence of
abetment.
2. Conspiring with others for an offence to be committed.
3. Intentionally committing of an offence through aids, or by any act or illegal omission, the doing of
the thing. This is most common in commission of an offence. Bank rubbery is quite common and if the
security guard help he abets the robbers, public servant use false statements against any person so he did
abetment. If the other person carries that act and he enjoys immunity by law so the abettor will be charged
for the offence. Abetment above abetment is also possible; if I abet some one and that person abet the other
person so I will be liable as well. Abetment generally involves the sharing of criminal intention between two
person, and if agreed upon and done, the person who did will not be punished and the person who instigated
will be accused of abetment, and different punishment to him according to the consequences of the offence.
It is necessary that the abettor should not be present at the time of offence. In Common intention as in S.34,
all person doing some offence, but in the case of abetment the abettor does nothing just he instigate the
other person to do.
In complicity there can be three different principles:
1. Abetment. Two or more individual, one abettor the other who carries that criminal intention.
2. Common intention. S.34 read with 302. In S.34 there is no any offence mentioned but if a ground of
person kills one person, all of them jointly committed, they are all guilty of the kill or same offence.
The saying of Umar (RA) for Ahleyee Sanaa. If we establish the common intention we can convict a
group of a person according to S.34.
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3. Common Object: S.149. Unlawful Assembly, five persons or more. Once it becomes ruddy, and ass
the result they destruct some property, and even kill some person. For dispersing the unlawful
assembly the legal means are used, and if any person arrested, so upon the common object, we can
accused that person even he did not do any specific thing which we accused him.
If there is only one person who commits an offence so there is no chance of complicity, if more than one
then we will apply the above three principles regarding the circumstances of the offence. Whether he is
present or not, if he is not present it is abetment, if he is present and more than five it is common object.
S.108: give us the definition of abettor: a person abets an offence, who abets either the commission of an
offence, or the commission of an act which would be an offence, if committed by a person capable by law of
committing an offence with the same intention or knowledge as that of the abettor.
This is the only offence which the doer of that offence, there are two different definitions available,
the first the definition of abetment, and second the definition of abettor. Situation is to ask the other person
to do the commission of an offence.
Explanation 1: exp: ask police officer to remain absence from the place of commission of an offence. A
person is under the duty to do anything, so that facility the person to do an offence.
Explanation 2: it is where the important of abetment comes, if the other person refuse to carry that offence
so it is an offence of abetment. As in illustrated in illustration (a) A instigates B to murder C, B refuses to do
so. A is guilty of abetting B to commit murder.
Explanation 3: this explanation is as in S.110, that the person who carries that criminal act, is immature, or
has immunity of law. So the abettor will be liable. Such as in illustration (a) and (b) of this explanation.
Explanation 4: the abetment of an abetment is also an offence. Abetment upon abetment is also an offence.
Explanation 5: a person who involves in conspiracy it is not necessary if the other person is unknown to
him. If two person know each other and does not know other conspirators, it is not necessary.
S.108-A: abetment in Pakistan, of offences outside it: a person abets an offence within the meaning of this
Code who, in Pakistan, abets the commission of any act without and beyond Pakistan which would
constitute an offence if committed in Pakistan.
While being in Pakistan one can instigate the commission of the offence of abetment, he can ask
other person outside the boundaries of Pakistan to commit any offence and it is also abetment. It is not
necessary to be in the same distinct, likewise not in same distance.
Punishment of abetment: Ss. 109-120: as a result of abetment six different possibilities may be arise
depending on nature of every possibility, different punishment is given in different sections.
1. Offences abetted are committed with same intention: both are guilty because they do it with criminal
intention. In order to punish both the offender we have section 109.
2. Offence abetted is committed but with different intention acknowledge: S.110 is based on section
108. Irrespective of looking to the condition of perpetrator this section makes the abettor liable. The
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perpetrator is ignorant, he is exempted but abettor is responsible. A child, or lunatic person, unsound
mind person, the law does not recognize any exemption because of perpetrator. What ever the person
condition of perpetrator, both of them shares the offence. The liability of abettor is more here, he is
responsible, and perpetrator is ignorant he is exempted.
3. Difference offence got committed. S.111 and S.301 PPC a number of Islamic jurist there is a
different opinion. There is no difference in liability of the abettor if the perpetrator did the action
which he told to him, or he got any other offence in that regards, such as if he killed the person who
is not targeted, so the abettor is liable. Section 301 causing of person other than the person whose
death was intended: whether deceased is known to the person who target, or not. We are not
concerned with this situation at all. It is not excuse to plea that I did not target him; it could be abuse
as an accused. If his killing is done intentionally by using force let accused be liable for Qatli Amad.
No exemption he will get at all. S.111 is also based on the same principle that if a person abets for an
offence and perpetrator did an act unfortunately in consequence of his act achieved some other target
which was not known to the abettor. So abettor is liable. Putting fire on the hose where the people
live there, destruction of property in mischief, would also result the destruction of other things in
that property. Although the actual offence abetted is not targeted and action done by perpetrator is
different let the abettor be liable for this.
4. Cumulated punishment (double punishment). The idea was that only one offence will be committed
in relation to that offence some other offence committed. If the relationship appears, if it was
unavailable the accused has to be punished both. Exp: remove the property from some place by way
possible, by dacoity, theft, robbery or any other way which can remove the property from that place,
and something is done to the individual who was there. It was not the part of plan but it was the
consequence of that action such as security is injured; the abettor is responsible for both the
offences, because without this it was not possible for perpetrator to achieve the result. S.114
5. Different effect: the idea was to create a particular effect but the result was different effect then what
have been abetted, if this effect appears to be the consequence result of the act which was abetted let
the abettor to be liable for the consequences or that effect as well. Exp: let person to be injured and
death cause of that injury. If death is effect of the injury which that person has abetted he is
responsible for that. S. 113.
6. No action: Ss. 115 to 120. We make the fair means to commit the offence but perpetrator denies.
Abetment takes place but no action take place, just instigation by the abettor.
S.109: Punishment of abetment if the act abetted is committed in consequence and where no express
provision is made for its punishment: whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code for the punishment of such
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abetment, be punished with the punishment provided for the offence. Provided that, except in case of Ikrahi-Tam, the abettor of an offence referred to in Chapter XVI shall be liable to punishment of Tazir specified
for such offence including death.
An offence is committed with same intention, so the perpetrator is also liable to punishment, he
would be punished under the provision of that offence but the abettor will be punished under this section as
Tazir. Both of them are liable in the eyes of law, but difference in application of law, for killer s. 302 and
for abettor this section. Then a proviso has been added regarding Ikrah i Tam and Ikrah i Naqes.
S.110: Punishment of abetment if person abetted does act with different intention from that of abettor:
whoever abets the commission of an offence shall, if the person abetted does the act with a different
intention or knowledge from that of the abettor, be punished with the punishment provided for the offence
which would have been committed if the act had been done with the intention or knowledge of the abettor
and with no other.
Is it possible for child under seven years to hold a gun? If a person uses an innocent child as an agent
for carrying his criminal intention, he is liable for the consequences of act and the doer of the action is
completely exempted.
Illustration (d) of S.108: A intending to cause a theft to be committed, instigates B to take property
belonging to Z out of Z’ s possession. A induces B to believe that the property belongs to A. B takes the
property out of Z’ s possession, in good faith, believing it to be A’ s property. B, acting under his
misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting
theft, and is liable to same punishment as if B had committed theft.
Agent of a person who has no knowledge, he is exempted. For imposing punishment we are not to
concern the position or statues of the perpetrator, whether he is exempted or he is entitled for punishment or
not?
S.111: Liability of abettor when one act abetted and different act done: when an act is abetted and a
different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if
he had directly abetted it:
Proviso- provided the act done was a probable consequence of the abetment, and was committed under the
influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the
abetment.
The third situation different offences got committed probable consequences. Probability a degree
higher than possibility. In case of possibility the things cannot come to our expectation. Probability is
beyond possibility, there is a definite possibility that the act will occur. The probability can be anticipated in
advance. Injuring a person in his sensitive parts may cause to his death. So death is the probability of the
injury which the person caused him. If there is a relationship between cause and effect so there is probability
that an offence is to be committed. It is predicated from the first time, before injuring or putting the injury to
the other person. So the abettor is liable for this consequence result of his abetment. The act did take place
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by the abetment of the person but it goes beyond that act and result to the death of that person so abettor is
liable. The abettor cannot plea that my intention was other effect and he caused other effects, if it is a
probable effect, he would be liable for the offence.
Illustration (a) (b) (c)
S.112: Abettor when liable to cumulative punishment for act abetted and for act done. If the act for which
the abettor is liable under the last preceding section is committed in addition to the act abetted, and
constitutes a distinct offence, the abettor is liable to punishment for each of the offence.
If the perpetrator commits the act and on the commission of that act some other acts are also
committed, again if there is some relationship, let the abettor be liable and be punished with same offences.
Illustration.
S.113: Liability of abettor for an effect caused by the act abetted different from that intended by the abettorwhen an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act
for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by
the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had
abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to
cause that effect.
Abetment takes place, and desire effect is not produced but some other effects have been produced.
We want a particular reaction of our action but different reaction occurred so the abettor is liable, it the
relationship of consequences are established. The idea is to injure some body but it turns out to the death, so
the abettor is liable for death. The possible knowledge can be anticipated. A man anticipates normally the
consequences of an action.
S.114: Abettor present when offence is committed: whenever any person, who if absent would be liable to
be punished as an abettor, is present when the act or offence for which he would be punishable in
consequence of the abetment is committed, he shall be deed to have committed such act or offence.
It simply creates a principles, abettor must be absent from the place of offence. He would be a
perpetrator and principal offender, but he would be given less punishment if he instigated through verbal
abetment.
Ss. 115- 120: self study
Criminal Conspiracy
S.120-A: Definition of Criminal Conspiracy: when two or more persons agree to do, or cause to be done, 1. An illegal act or
2. An act which is not illegal by illegal means such agreement is designated a
criminal conspiracy.
One person cannot conspire with himself against any body. It required at least two person who with
their free consent does a conspiracy against some other. For conspiracy you have to share it with some one
else. If he accepts or adopt the criminal plan he would be guilty of criminal conspiracy.
There are two distinct purpose of agreement:
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1. To do something illegal. Exp: we will jointly victimize a person, jointly steel property, jointly kill
a person. The moment it is accepted between two it is the offence of criminal conspiracy. Why? Because it
is object is to do something which is illegal.
2. to a Legal thing through illegal means: a plane to kill somebody. The very agreement illegal. To
secure a person who is in custody through unlawful mean. To release from bail but through illegal it is
conspiracy.
The mode of proof: there should be evidence of agreement.
S.120-B: Punishment: no death or life imprisonment. Six months imprisonment.
Common Intention & Common Object
S.34: Act done by several persons in furtherance of common intention: when a criminal act is done by
several persons in furtherance of the common intention of all, each of such persons is liable for that act in
the same manner as if it were done by him alone.
Common intention is the creation of this section, there must be at least two and maximum four
persons. Constructive or vicarious liability is created in common intention.
A man is known by the company he keeps. Different life time situations which we encounter in our
life. Different two person fire on any person, similar weapons and similar area is targeted. If we want to
examine that which of the two person fired the first built? Practically it would not be possible to show this.
If we take the plea of doubt we will give undue benefit to the culprits who want to do any criminal act. So
we have rule that let one person be liable for the act of another person. Constructive liability or vicarious
liability. If there is common plan, so the all those who shares in criminal plan are guilty and they faces
collective liability, and they will be given the same punishment. In order to make people responsible there
are two sections in PPC S.34 Common intention, and S.149 Unlawful Assembly. For company (aggregate
or individual) so the relationship or common intention should be seen.
Section 34 is not an offence; this is just a principle or rule. But 149 is an offence which is unlawful
assembly although all of them may not take part in the commission of an offence, all of them are liable.
S.34 is a general provision its opposite is s.38. Act could be a single act or series of act according to
s.33. A person can fight with a person and injure him then kill him, so there different acts have been done in
furtherance of common intention.
Actual liability and constructive liability: actual liability somebody doing something criminal alone. In
case of constructive or vicarious the person may not involve directly in the commission of the offence they
are liable for their contribution. Such as a member of a gang is constrictively liable for the act of the other
members of that gang.
This section divides:
1. If there are several person, one person cannot do, it should be more than one.
2. All of them agree criminal action.
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3. Contributing acts, different act or one act.
4. Offences committed by all of them or some of them.
5. The evidence will be taken, and every person will be dealt individually. On the base of presumption
all of them had done some part, so one person may be punished by the act which he didn’ t perform
that act.
Constructive liability
1. Actual presence: presence of all should be present in the time of the committing offence. This thing
distinguishes the abetment from common intention. In the case of abetment the abettor is not present
at the time of commission of offence.
2. Participation: without participation the common intention cannot be established.
3. Pre-concern, pre-arrangement, pre-plan: the result of participation is not incidental it is because of
pre-plan. The common agenda drawn and then plan to do or execute the act. Several acts will be
done by allocating every individual to do some offence. The pre-plan is not necessary to plan before
some days; it can be possible that plan be in spot of the commission of the offence.
One person of them cannot say that I have done this thing and I must be punished according to my
offence, the above condition if fulfilled the common intention will be established and all of them will be
held liable for that offence.
S.36: Effect caused partly by act and partly by omission: whenever the causing of a certain effect, or an
attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing
of that effect partly by an act and partly by omission is the same offence.
Ss. 36 and 37 explain the consequential form which could come from different person because of
common intention. Effect means any harm to be caused to somebody by doing something, which is an
offence by PPC. To injure somebody then he passed a way, the death is caused because of injure, the cause
of the death is injury. Death is the harm and caused is the injury, and it is causation which is cause + effect.
The effect may be grieved in nature. How? In some cases by doing something which is act; in some
cases not by doing something, this is omission.
S.37: Co-operative by doing one of several acts constituting an offence: when an offence is committed by
means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one
of those acts, either singly or jointly with any other person, commits that offence.
Co-operation cannot be done alone, it must be with two person or more. Co-operation means to help
some body. This is an exception to the general rule of section 34; the person may not be present.
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Illustration (a): A agrees with B to kill Z by different doze of poison, Z dies because of poisons of A and B.
here A and B intentionally co-operate in the commission. They did not participate in the commission at one
time, but they under a common plan individually done the act. So there are:
1. There are two persons.
2. No share of act.
3. Different acts on different time.
It is not necessary that common intention always be done simultaneously some exceptions are there.
S.38: persons concerned in criminal act may be guilty of different offences: where several persons are
engaged or concerned in the commission of a criminal at, they may be guilty of different offence, by means
of that act.
This section is opposite to section 34, every person liable to his own act.
S.35: When such an act is criminal by reason of its being done with a criminal knowledge or intention:
whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention,
is done by several persons, each of such persons who joins in the act with such knowledge or intention is
liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.
Common knowledge is the principle. If he is ignorant or not innocent so he is not liable.
S.141: Unlawful Assembly: offence of unlawful assembly is the creation of PPC. How to bring about the
disperse of unlawful assembly is explained in Crpc in S127 on ward. Whenever people together with
criminal intention, the harm to public property cannot be ruled out. Assembly is not offence by itself it is the
criminal intention or use of force which make the assembly unlawful. The presence of all persons in
common object is not necessary. And pre-plan is also not necessary. The number should not be less than
five persons. If the common object of the persons composing that assembly is:
1. To overawe the criminal force, show criminal force, any Provisional Government or Legislature,
any public servant in the exercise of the lawful power of such public servant.
2. To resist the execution of any law or proceeding of law.
3. To commit any mischief or criminal trespass or other offence.
4. by means of criminal force or show of criminal force, to any person to take or obtain possession of
any property, or to deprive any person of the enjoyment of a right of way, of the use of water or other
incorporeal right of which he is in possession or enjoyment or to enforce any right or supposed right.
5. To show of criminal force, to compel any person to do what is not legally bound to do or omit to
do what is legally to do.
S.146-147: self study.
S.149: Every member of unlawful assembly guilty of offence committed in prosecution of common object:
if an offence is committed by any member of an unlawful assembly n 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
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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.
Section 302 read with this section: every member of unlawful assembly is responsible for the
commission of an offence, although all of them did not participate. But if one of the members killed one
person so all of them will be punished. Mere membership is enough to establish the common object and be
liable even if the person who is the part of unlawful assembly does not do anything. Vicarious liability is
established through the common object. If we read 149 with 302 it is shown that there are two conditions:
1. Not by one person but by all.
2. All of them are guilty.
S.159: Affray: when two or more persons, by fighting in a public place, disturb the public peace, they are
said to commit an affray.
1. Two person or more.
2. Fight in the public place. 3. Disturbance of public peace.
The punishment is hundred rupees according to section 160.
Qisas & Diyat
In 1990 new provisions have been added to PPC. 50 provisions of PPC were challenged in Federal
Shariah Court on the ground that they are inconsistent with Islamic law. Federal shairat Court decided them
unislamic provisions. In 1996 bail was formally introduced and got approved and it became part of PPC in
1997. In Section 53 five punishments is added which are purely Islamic in nature.
1. Qisas: life to life, this is in Qatali Amd, Etlafe Ozwo (loss of organ), and Etlafe Salaheyat Ozwo (function
of natural capacity) exp: some body get paralyzed through electric shock, deprivation of eye sight, on both
case Qisas is possible. The health of convict is not necessary. We have to maintain equality when we
punishment any person on the bases of Qisas. Qisas is practically possible in Qatli Amad, but in account of
hurt we have to keep in view his physical condition as well.
2. Diyat: Qisas can be converted to Diyat, father killing his son, minor committee some offences, killing, he
is not liable to Qisas so it converts to Diyat. Diyat is pecuniary in nature; it is payment of compensation of a
fix value, such 100 camel as according to prophet (PBUH) according to the tradition 100 camel or whatever
equal to that 100 camels. Qisas and Diyat can not be combined. Diyat can be in Qatli Khata, Shebhi Amad
and also in Qatli Amad in cases which the law did not prescribe its punishment as Qisas.
If Qatli Amad occurs, according to Islamic law four different consequences are there:
1. Qisas.
2. Diyat- all Qatli Amad is not liable to Qisas. Minor kills some body, ascendant kills the
descendent so they are not liable to Qisas. Diyat stands fixed, no bargaining on quantity.
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3. Pardon, waiver of Qisas. According to Ahnaf the right to waive Qisas must be exercised without
planning anything else, or it is not based on any consideration. It must be for the seek of Allah.
Pardon is not in Diyat.
4. Composition. It is compromise between the legal heirs and accused.
i. Qisas ------------ ii. Pardon ------------ iii Composition.
iv. Diyat. If a person has right of Qisas, he will have right of pardon and composition as well but if
he has right of Diyat he has no right of pardon and composition.
3. Arsh: fixed compensation to be paid by the offender for the injury. It not in relation to Qatul it is in
relation to Jurh, what is it’ s extend? In some case it is equal to Diyat and some cases it is half, or one
fourth, or one tenth of Diyat, relating to the number of the Jurh, which is expressed by law. S. 299-B defines
this. It could be equal to Diyat; it could be one half, one third, one fourth, one tenth of the Diyat. It is on
account of an injury.
4. Daman: is compensation fixed by the court. And it is compensation as a matter of right, the court can give
Daman. It is not fixed as well the court will give according to case. It is unliquidated amount of money, the
law did not fix it, and the court will fix it in accordance with the circumstances of the case. The definition is
explained in S.299-D.
5. Ta'zir: where Qisas is not possible, it changes to Ta'zir punishments. Ta'zir is right of state and
government, ta'zir is not fixed, state can reduce and enhance the ta'zir, because it is not related to right of
Allah or individual. Offences created by the state and punishment also by the state, those are Tazir, waiver
is also possible.
6. Death: on account of every offence which law has fixed not involving right of any individual. Death
punishments in PPC are awarded in these offences, Sections. 121, 132, 194, 302, 396.
7. Life imprisonment: it means up to the end of life, but in PPC means up to 25 years.
8. Imprisonment shorter then life imprisonment, maximum 14 years.
9. Forfeiture of property.
10. Fine.
Bases of Homicides in Islamic law are violation of right, transgression of limits or harm caused to
the right of the other. Who so ever cross the limits he is liable to the punishment. These punishments are
fixed in Islamic Law. If pure right of Allah, that is Hadd and cannot be pardon by the state, conversion is
also not possible. Right of individual and Allah, in this right of Allah may be dominant or right of individual
may be dominant such as Qazf. And next the right of individual is dominant to the right of Allah, this we
say Qisas.
S. 54-55 and 55-A: Commutation of Sentence of death: commutation is generally conversion. To convert
death to life imprisonment. Life imprisonment can be commuted to fourteen years; rigorous imprisonment
can be commuted to simple imprisonment.
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Commutation is to convert a bigger punishment to less punishment, or to convert major punishment
to minor punishment. Exp: death is the highest punishment in accordance with the law, it is by supreme
court of Pakistan, so there are so hopes, appeal for mercy to the president under Article 45 of Pakistan
constitution , and under 54, 55, 55A of PPC federal government, provisional governor has also this
jurisdiction. so to covert the death punishment to the life imprisonment it is commutation, or to commute
life imprisonment into the simple imprisonment is also commutation. Under Article 45 of Constitution it is
only president who has to power of clemency jurisdiction, not the power of provisional governors, not the
prime Minster or federal or provisional government. He shows clemency or mercy to the offender.
Commutation is possible by the President, Federal Government, or Provincial Governors as well.
Pronouncement of judgment is a judicial decision, but there after that judicial decision can be
disturbed by an executive order to be from the president of Pakistan under article 45 of Constitution. This
authority to disturb judicial decision by way of punishment is simply known as the clemency jurisdiction of
the president. Clemency jurisdiction literally means appeal for mercy, how this mercy done and how this
jurisdiction can be exercised? There are more then one forms.
This jurisdiction can be exercised by:
4. Federal government.
5. Provisional government.
6. President under article 45.
Clemency jurisdiction is a goal it has to be achieved numerous things could be done in any case. What is
possible to be done in this jurisdiction?
In section 55-A it is saving for president's prerogative: it means the president may or may not be done in any
case, we can simply apply, but we can not say that before president has applied, he will give us also
concession , in one murder may commute, and other case does not and he does not violate any law, and
second thing is that it is not as a matter or routine, in one murder case happen so it should happen in all
murder cases, president may or may not mercy on him. It is personal decisions. Before 1990 PPC did not
impose any restriction on this but after when it is Islamized, S.402 of Crpc also explaining same power
without any restriction, now we have provided that in case of Qatle Amad the federal government or
provisional government can not change death sentence to life imprisonment without the consent of the legal
heirs . How this clemency jurisdiction will occur? Different forms are there, commutation to reduce, and
other rights of president are also forms of this jurisdiction. In section 55-A, it is just rights of president and
not the right of federal or provisional government. For commutation the president is not bound to consent
the legal heirs. We have five different terms which could be done in clemency jurisdiction, one of them is
mentioned in section 54-55, and four others are mentioned in S.55-A.
1. Commutation: to reduce, to converse, conversation of major punishment to minor punishment.
Commutation should not be mixed with other fours. But it is not mercy at all. Death can be commuted to
life imprisonment, and life imprisonment can be commuted to simple imprisonment, and simple
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imprisonment commuted to fine. But it is not possible that in the name of clemency the president change
death sentence to fine, because between them there are many other punishments. In commutation the idea of
punishment is always there. If the authority wants to accept his appeal then it can be commutated.
2. Pardon: it means complete removal of a punishment, no question of conversion, according to Islam,
Hanafi school of thought if any one pardon from Qisas will any other punishment will remain on him? No it
has to be unconditional in nature. If president pardon then no punishment will remain at all.
3. Reprieves: to be delayed, it is for the pregnant woman, S. 314(3) how Qisas executed and convicted is
female and she is pregnant, the execution should be postponed. And this is what the literal meaning of Qisas
which means equality. Is it possible two persons in the name of Qisas if he killed one person? No, so what is
if women is pregnant, so section 314 (3) explains this, if the convict is female and she found pregnant so
postpone the execution of Qisas up to period of two years. Why because two life can go by the name of
Qisas. This is Islamic principle as well. So reprieve is seeking delay which is to be executed to women who
is pregnant. it is not related to the other crimes. It is for Qisas because as we said we can not execute
punishment to two persons.
4. Remission: to reduce some time of his punishment, it is not changing the nature of punishment, it is
partional punishment. He should suffer punishment but the time is to be reduced. In commutation the nature
of punishment is changed, the duration in remission is changed but the nature of punishment will remain
same. Exp: on the occasion of Eid days, some months of punishment reduced by announcement of
president. Some parts of punishment are reduced and part remains.
5. Respite: to secure additional time, instead of exposing those things now, additional time should be given;
it is not pardon, nor others. It is extending the additional time. It is similar to respite but that is for pregnant
women and this is regard to civil liabilities, such as fine, civil decree, extension of time of decree. Otherwise
he would be arrested then auction of his property and etc, but if he respite then he is immune and he is safe
from these things.
S.299: Definitions of different terms which are related to Qisas and Diyat.
a. Adult: means short of eighteen years according to the law. Below this limit according to PPC no one can
be punished as Qisas if he kills any person.
c. authorized medical office: a medical officer of medical board, whosoever designated, by PG. For
imposition of Qisas on account of hurt check up of medical officer is necessary, but on account of death it is
not necessary to be checked by medical officer.
g. Ikrah-i-Tam: putting any person, his spouse or any of his blood relationship within the prohibited degree
of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear
of being subjected to sodomy or Zina bil jabr.
This sub section to be read with section 94, offence is coerced. If offence under coercion it is liable
to punishment under s.94. In Islam the culprit must not be exempted completely, but we have to look the
degree of Ikrah, if it was so dangerous it is Ikrah i tam, so lesser punishment for him and maximum
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punishment for the Mukreh (who enforce). It has to be established that some body did an action in Ikrah i
Tam, then he would be exempted from the major punishment but lesser punishment have to be given.
Three persons could be targeted in Ikrah i Tam are: that person, his spouse such as wife, and his
blood relationship such as children, father, etc. on the fears which are:
1. Instant death.
2. instant permanent impairing of any organ of the body
3. Instant fear of being subjected to sodomy or Zina bil Jabir.
k. Qisas: means punishment by causing similar hurt at the same part of the body of the convict as he ahs
caused to the victim or by causing his death if he has committed Qatli Amad, in exercise of the right of the
victim or a wali.
Culpable Homicide
Culpable homicide not amounted to murder, not carrying the death punishment. Under S. 304. There
are seven exceptions from being under culpable homicide.
1. Sudden and grave provocation: it affects the condition of the offender.
2. Mistake: Qatli Khata, two types ‫خطبءكفيكالفعلكوكخطبءكفيكالقصه‬
3. Accident: any rush or negligent conduct, any target without specification of any person.
4. Public Servant: S. 76, in good faith, performing his duty, firing in demonstration in good faith.
5. Self Defense: Ss.96-100 but with limitation which is imposed by the law. The offender is bound to prove.
6. Sudden fight: sudden quarrel, no pre-mediation, and intention.
7. Consent: death caused with the consent of victim, such as boxing, racing, and any sport, etc.
Types of Qatl: According to different school of thought
1. Ahnafs five different types: ‫كقتلكجبرىكمجرىكالخطبء‬،‫كلبلسببك‬،‫كخطبءك‬،‫كشب كعمهك‬،‫عمهك‬
2. Maliki: Two types: ‫عمهكوكخطبء‬
3. Shafi and Hanbali: three types: ‫كخطبء‬،‫كشب كعمهك‬،‫عمهك‬
Qatli According to Ahnaf:
1. Directly
2. Indirectly
1. Directly
i. Intention to kill: how intention could be examined, looking to the nature of weapon whether Jarea
and Taina or not, all shapes weapons, all today’ s weapon, is Qatli Amad according to Ahnafs.
ii. Act caused death not intended to kill.
iii. Not to kill but to injure (Shebhi amad) if any doubt created in the mind of the court, the benefit of
that doubt would be benefit the accused. ‫كشب كفيكالمحلكوشب كفيكالفعلك‬sep‫ك‬ttnwt‫ك‬ern‫ك‬Sbe‫ك‬S dnA .
iv. seS‫ك‬eeS‫ ك‬eSnepnp (Jaree majra al Khata) ‫جبرىكمجرىكالخطبء‬
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2. Indirectly: Qatli bis Sibab‫ كقتلكلبلسبب‬a cause and that cause to the death of person, giving false evidence,
digging in the way which caused death of any person. In PPC the above four directly are incorporated not
this type of Qatl. Because there is intention in the above four. Different types of punishment. And in Quran
there are Kaffar and no punishment of Kaffar in PPC, it is a religious punishment not the worldly
punishment.
S. 300: Qatli Amad: whoever, with intention of causing death or with the intention of causing bodily injury
to a peso, by doing an act which in the ordinary course of nature is likely to cause death, or with the
knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the
death of such person, is said to commit Qatli Amd.
Whosoever, any person whether he is from Pakistan or any other state, his nationality is not
important, whosoever commit Qatli Amad he is liable to Qisas.
1. Intention to death or bodily injury which is grievous hurt which may cause in death of that person.
2. Act: the intention must be shifted to a concrete act; a physical act must be developed. The act
which is dangerous in nature. The act is understood from the nature of means which is employed and
knowledge of consequences of that act.
3. Death: the consequence must be death of that person. The above three elements must be there in
order to accuse a person for Qatli Amad.
S.301: causing death of person other than the person whose death was intended: where a person, by doing
anything which he intends or knows to be likely to cause death, causes death of any person whose death he
neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be liable
for Qatl i Amad.
This section reflects the principles that don’ t look to the accused or the original target, look to the
ingredient which caused the death.
S.302: punishment:
1. Punishment of death as Qisas.
2. Punishment with death or imprisonment for life as Tazir having regard to the facts and
circumstance of the case, if the proof in either of the forms specified in S.304 is not available.
3. Imprisonment for twenty five years, where according to Injunction of Islam punishment of Qisas
is not available. But which are the cases? Still not cleared this sub provision.
S. 303: self study.
S.304: Proof of Qatli Amad liable to Qisas:
a. by the accused makes before a court competent to try the offence a voluntary and true confession
of the commission of the offence.
b. by the evidence as provided in Article 17 of Qanun e Shahadat. One man and one woman.
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S.305: Wali: In case of Qatl, the wali shall be:
a. the heirs of the victim, according to the personal law, but shall not include the accused or
convicted in the case of Qatl I amad if committed in the name or one pretext of honor.
B.
the government if there is no heir.
S. 306: Qatli Amad not liable to Qisas: in the following cases:
a. minor or insane. Provided that when a person liable to qisas associates him with a minor or insane,
he will be liable to Qisas. According to Islamic jurist when a person uses another person as a tool simply he
is child or a minor, he will be liable to Qatl. Minor is not liable to Qisas but he will be punished less
punishment as Diyat and Tazir.
b. offender cause death of his child or grandchild: tradition of the holy prophet that a person is not
liable to Qisas of killing of his Faraa (descendant). Normally it is unnatural, because of some bad character
of the son. According to Ahnaf it is a general principle whether the ascendant is male or female or first
degree or second degree they enjoy exemption. According to Maliki it is applicable to Faraa, others they
will be liable to Qisas. According to Hanbali if mother and maternal grandmother they kill their children
they would not be liable from Qisas, they have to be liable for Qisas.
c. wali happens to be the is direct descendant of the Qatil: father killing mother, and children is the
only wali, so it is not allowed to kill his father as Qisas.
S. 307: cases in which qisas for Qalti Amad is not be enforced: the below are the other category in which
Qisas is not applicable. The different between these two sections that in 306 Qisas is not the legal
punishment at all, but in 307 Qisas is the punishment but there are some intervene in which Qisas is not
possible. Different circumstances are in this section:
a. death of Qatil: when the offender dies before the enforcement of Qisas. According to Maliki and
Hanbali death absorb the convict of any other punishment. According to Shafi if a person dies, his property
shall be liable for payment to Diyat. According to the law and Hanafi School death will exempt the person
from any other punishment; it will not be converted into Diyat.
b. When Wali voluntarily and without duress satisfy the court, waives the right of Qisas U/S 309 or
compounds U/S 310.
c. when the right of qisas devolves on the offender as a result of the death of the wali of the victim,
or on the person who has no right of qisas against the offender.
If one of the wali waives that must be accepted to all others. If it is done by a single wali this will be
binding on the rest and Qisas will be exempted. There is no majority or minority decision in this regard just
a single wali can waive.
To satisfy that the wali waived the right of Qisas voluntarily, the court shall take down the statement
of the wali and such other persons as it may deem necessary on oath and record an opinion that it is satisfied
that the waiver, as the case may be, the composition, was voluntary and not as result of duress.
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S. 308: Punishment in Qatl i Amd not liable to qisas, etc: it is relevant to S.307, what sort of punishment
should be given to a minor or other clauses of that section? Diyat and in some cases imprisonment which
may extend to twenty five years as Tazir. But this provision did not mention that death can be given as
Tazir, because it is not possible to increase the punishment from the lesser punishment to more punishment.
S. 309: Waiver- Afw of Qisas in Qatli Amad: waiver and composition is in Qisas not in Diyat, there is no
right of waiver in Diyat. And the person who waive must come to the court and verify that he voluntarily
wants to waive Qisas.
1. A single adult sane wali can waive which is binding to all.
2. At any time even after the judgment.
3. without compensation: according to Ahnaf and Maliki waiver must be without compensation.
According to others he can take any compensation. But generally it is because of seek of Allah and
without any composition.
The wali who does not waive Qisas he shall be entitled to Diyat. And if there are more victims waive
of wali of one victim, shall not effect the right of Qisas of other victims. Also the waiver of Qisas from one
offender shall not effect the right of Qisas against other offenders.
S.310: Compounding of Qisas (Sulh) in Qatli Amad: an adult sane wali may compound his right of Qisas.
Provided that female shall not be given in marriage or otherwise in compassion. Let the composition be in
property, not with human being. If wali is minor or insane the guardian of minor may compound the right of
qisas on behalf of such minor or insane wali. The value of badl-i-sulh shall not be less than the value of
Diyat. According to 309 the government cannot waive the Qisas but according to this section government
can compound the right of qisas. The value should not be less than Diyat if the government compounds the
right of Qisas. Diyat has to be paid within three years, but composition is upon the parties, the time they
agree with each other.
S.310-A: punishment for giving a female in marriage or otherwise to the party: whoever gives a female in
marriage should be punished to imprisonment which may extend to ten years, but shall not be less two
years.
S.311: Tazir after waiver or compounding of right of Qisas in Qatli Amad: Qisas is not a legal punishment
for any reason. Can we go in the name of Tazir? In the case of Qatli Amd which is not liable to Qisas. Can it
go beyond in the name of Tazir? Lesser punishment is possible, but death sentence is not possible in the
name of Tazir. This is a principle; a person cannot be punished twice. The first composition, the other by the
name of Tazir, who has already paid composition. So can he go for other punishment which is grievous in
nature then the previous punishment? So this section is against the general principles of Islamic Law. So
this section is unislamic in nature.
Explanation: for expression fasad-fil-arz the past conduct of accused is seen, whether he is killer or not? Or
the brutal or shocking manner in which the offence has been committed which is outrageous to the public
conscience or the offence relates to hour crime, etc. the habitual offenders, past will be seen. Use of animal
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against other person, so it brutal and shocking manner. Or the offence has been committed in the name of
honor. S.345 of Crpc, it is very comprehensive and elaborate section. This section refers that after the
composition the offender will be acquittal from that offence. But in S.311 the waiving or compounding of
Qisas is in the hand of the wali, but after wavier or composition the matters remain with the government,
that state can do any preventive action for that person and U/S can impose punishment to him.
S.312: Qatli Amad after waiver or compounding of Qisas: where a wali commits Qatli Amd of a convict
against whom the right of qisas has been waived or compounded such wali shall be punished with:
a. Qisas if he had himself waived or compound the right of qisas against the convict or had
knowledge of such waiver or composition by another way.
b. Diyat: if he had no knowledge of such waiver or composition.
S.313: Right of Qisas in Qatli Amad: if there is only one wali, he alone has right of qisas, if more than one,
the right to qisas vests in each of them. If the victim has no wali the government shall have the right of
Qisas. If he has no wali other than a minor or insane or one of he wali is minor or insane, the father or if he
is not alive, the paternal grandfather of such wali shall have the right of qisas on his behalf. Provided that if
the minor or insane wali has no father or howhighsoever, alive or guardian, the government shall have the
right of qisas on his behalf.
S. 314: Execution of Qisas in Qatli Amad
Qisas literary means equality, section 368 of Crpc should be read with this section. In case a person
who is going to be executed to death, he has to be hanged by neck until the death. Pansee is not punishment
of Qisas it is execution of this punishment of Qisas. Under this section the judge can order that the Qatil to
be put in the same manner as he killed the maqtool. The power is available but it was not exercised yet.
According to Imam Abu Hanifa the execution of Qisas is with the sword. But according to others it is no
matter that which particular method is to be used for execution, the purpose is to put that person into the
death whether we kill him, or poison him, or hang him. Important is that his life to be taken.
The court may direct the execution of Qisas as in the manner which he killed the victim, but
ordinarily the court directs to be hanged by neck till death as in S.368 of Crpc.
S.381 Crpc black warrant, it is issued after the conformation of the High Court that the punishment
to be executed. So let all the legal proceeding should be completed before the execution. And the proviso of
this section explains that the execution wills not if legal heirs of the deceased pardon the convict or enter
into compromise with him even before the last moment before execution of the sentence.
If the convict is a woman who is pregnant, so death sentence will be postponed until he deliver the
birth, and other principle of Islamic provision that the mother has to feed her child for the period of two
years. Then after this it would be examined and will be ordered whether the death sentence to be carried or
not? But there is a possible that she become pregnant again and there is no law that we can prevent her not
to intercourse with her husband. So practically this death sentences not possible to be executed. Because
Qisas means equality and two life cannot be taken by the name of Qisas.
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S.315: Qatl Shibh i Amad: whoever, with intent to cause harm to the body or mind of any person, causes
the death of that or of any other person by means of a weapon or an act which in the ordinary course of
nature is not likely to cause death is said to commit Qatl Shibh-i-Amd.
How we determine his intention? By discovering the nature of the weapon which is used, not made
to kill the person. And also harm should be to the body not to the brain. We can use our own force as a
weapon, different object in the kitchen which can kill the person and they are not sharp. So because of use
of weapon let the accused to benefit from doubt. Illustration.
S.316: Punishment for Qatli Amad: twenty five years as tazir.
S.317: Person committing Qatl debarred from succession: where a person committing Qatl i Amad or Qatli
shaibh i Amd is an heir or a beneficiary under a will, he shall be debarred from succeeding to the estate of
the victim as an heir or a beneficiary.
With the view of getting inheritance a legal heir kills his successor that will result to he shall be
debarred from the inheritance.
S. 318: Qatli Khata: whoever, without any intention to cause death of, or cause harm to, a person causes
death of such person, either by mistake of act or by mistake of fact, is said to commit Qatli Khata.
Illustration: a) mistake of act.
b) mistake of fact.
Sometimes the friend could be mistaken of animies and an animal could be mistaken of a person.
This is quite possible in reality. Whether the result of the mistaken of an act without of our intention cause
the death we are not liable for that as Qatli Amad. We make a presumption of the bases which result to the
consequences of death to any body.
S.319: Punishment: liable to Diyat. If Qatli Khata is in rash or negligent driving in addition to the Diyat,
also punished with imprisonment which may extend to five years.
S.320: punishment for Qatli Khata by rash or negligent driving: we will regard the fact and circumstances of
the case, in addition to Diyat; he will be punished with imprisonment of the term which may extend to ten
years.
S.321: Qatli bis sabab: whoever, without any intention to cause death of, or cause harm to, any person,
does any unlawful act which becomes a cause for the death of another person is said to commit Qatli bis
sabab. (Illsutration)
The punishment is that he is liable to Diyat.
S. 323: Value of Diyat: according to the tradition of the prophet (PBUH) the value of Diyat is fixed one
hundred camels. And then specification to their age, that 30 must be three years old and 30 four years old
and 40 five years old. Camel agreed upon by all jurists. Then Dirham, silvers, goats, cows, precious items,
are included also in the amount of the Diyat. On thousand Denar, ten thousand Dirham according to
Malikis, 200 cows, 2000 goats, also possible in the value of Diyat. One thing which can be justified that the
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value of camel or what ever equal to that value. The other condition is keep in mind the financial condition
of the accused.
S.330: Disbursement of Diyat: The Diyat shall be disbursed among the heirs of the victim according to their
respective shares in inheritance. Provided that if a person waives his right he shall not get his shares in
Diyat.
S.331: Payment of Diyat: according to the other jurists the payment of Diyat must be in lump sum not in
installment, but according to Hanfi school of thought it can be distributed in lump sum or for the period of
three years from the date of the final judgment.
Diyat is a pecuniary punishment and according to the Islamic law if the killer cannot pay the amount
of Diyat, it would be taken from his estate or property. If he has no estate, he will remain in imprisonment
till he pays Diyat or may be released on bail if he furnishes security or surety equivalent to the amount of
Diyat to the satisfaction of the court or may be released on parole as may be described.
If a convict dies before the payment of Diyat or any part, it shall be discovered from his estate.
Hurt
S.332: Hurt: whoever cause pain, harm, disease, infirmity or injury to any person or impairs, disables or
dismembers any organ of the body or part thereof of any person without causing his death is said to cause
hurt.
In previous PPC there were two types of hurt which are simple and rigorous hurt. No further
elaboration of the hurt which according to Islamic law categorized. There are different categorize in Islamic
law and then subdivision of these categories. Entire human body could be subjected to the hurt. Hurts
which are found in Islam law are as:
1. Itlafi udw: destruction of an organ or limb. Eyes, nose, or any other organ can be destroyed
2. Itlafi Salahiyat udw: destruction of capacity of limb or organ. A person could be rendered blind
without destruction of the eye, but destroying the function and capacity of the eye. Or the
capacity of the ear to hear. To shock any person electrically and become Maflooj. The above
both are liable to Qisas, but in seeking Qisas on account of heart we have to keep in mind the
condition of the accused. Death should not be the consequences of that hurt. There is other
principle that Qisas on the case of an organ. The organ must be similar and the same, right ear
will be with right ear. And if half of the ear, we cannot convict him with full ear. Because the
spirit of Qisas which is equality and similar will be finished.
3. Shajjah. It is on the face or head or the parts of both head and face.
4. Jaifah: it is on trunk region. It constitutes two cavities:
a. Chest region.
b. Abdomen.
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5. Ghair Jaifah: limbs could be effected.
6. Hurts of other types. Not in the above particular description.
These are express and particular types of Hurt.
S. 333: Itlafi udw: whoever:
1. Dismembers: to separate the joint of the bones.
2. Amputates: partial cut of a limb or an organ.
3. Severs: separation of an organ wholly.
Any limb or organ of the body of another person is said to cause Itlafi udw.
S.334: Punishment: after the consultation of authorized medical office, be punished with qisas and if qisas is
not executable, the offender shall be liable to Arash and may be punished with imprisonment which may be
extend to ten years as Tazir.
S.335: Itlafi Salahiyyat i udw: whoever destroys or permanently impairs the functioning, power or
capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause
Itlafi Salahiyyat i udw.
If the capacity of the organ or limb is destroyed that is Itlafi Salahiyat I udw, such as destruction of
eye sight, hearing, paralyzing the limb.
S.336: Punishment: be punished with Qisas in consultation with authorized medical officer, if not
executable, than Arash and may also be punished for ten years as Tazir.
S.337: Shajjah: it is hurt in head and face which does not amount to itlaf-i-udw or itlaf – i Salahiyyat i
udw. Shajjah cannot be in other parts of the Shajjah Khafefh in Islamic law are:
1. Harisah: bumps / bones and no bleeding at all.
2. Damiyah: skin is repined, blood comes out. Skin is ruptured and bleeding occurs.
3. Damigha: blooding.
4. Badiah: the hurt penetrates into the muscles, skin is ruptured without exposing the bone.
5. Samhaq: injury penatreted into the muscles and that membrane and expose the bone.
6. Mutalahimah: lacerating the flesh.
7. Mudihah: exposing any bone of the victim without dislocating it.
8. Munaqillah: fracture of the bone of the victim, and bone is dislocated.
9. Hashimah: fracturing the bone of the victim without dislocating.
10. Ammah: fracture of the skull of the victim, so wound touches the membrane of the brain.
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11. Damigha: this is according to some jurists not all. Fracture of skull and the wound ruptures the
membrane of the brain.
S.337-A: Punishment:
1. Shajjah i khafifah: liable to Daman, and punishment two years.
2. Shajjah i mudihah: punished with Qisas, if not executable liable to Arsh which shall be 5
% of Diyat, and also imprisonment five years as Tazir.
3. Shajjah i hashimiah: liable to Arsh of 10 % of Diyat, imprisonment which may extend to
ten years.
4. Shajjah i munaqqillah: liable to Arsh which is 15 % of Diyat, imprisonment of ten years.
5. Shajjah i amah: liable to Arsh of 1/3 of Diyat, imprisonment ten years.
6. Shajjah i Damigha: liable to Arsh of ½ of Diyat, and imprisonment 14 years.
S. 337-B: Jurh: whoever causes on any part of the body of a person other than the head or face, a hurt
which leaves a mark of the wound, whether temporary or permanent, is said cause Jurh. It has two types:
Jaifah, and Ghayr Jaifah.
S.337-C: Jaifah: Whoever causes Jurh in which the injury extends to the body cavity of the trunk is said to
cause Jaifah.
Trunk includes the chest and abdomen. It includes import part of the body such as liver, heart,
stomach, lungs, kidney etc. we are talking the injury without specifying the organs which is in the trunk. It
is not specified any organ which includes in the trunk.
S.337-D: Punishment: liable to Arsh of 1/3 of Diyat, and imprisonment ten years. There is no Qisas in this
because we don’ t know the consequences of the injury. His life cannot be secured. So it will not be equity.
Even the expert medical officer cannot insure the health of that person.
S.337-E: Self study.
S.337-J: Causing hurt by means of a poison: whoever causes any poison, or any stupefying, intoxication or
unwholesome drugs. Shall be punished to Arsh or Daman, or with imprisonment which may extend to ten
years.
If the poison person survives, but if passes away the question is whether it is Qatli Amad or Shabhi
Amad. Looking to S.300 the definition of Qatli Amad that a person doing an act with the knowledge that
his act is so imminently dangerous that it must be probability cause death, so poison probably causes death
of the person whether immediately or subsequently but death is the imminent result of poison.
Offence against Property (Enforcement of Hudood) Ordinance 1979 VI of 1979
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According to Ahnaf there are five Hadds: Theft, Zina, Qazf, Haraba, and Shurb. According to others
Irtedad, and Baghawat are also included in Hadd.
Definition of Hadd: literally means limit. And Hadaad means security guard or door man, who is posted as
to confine an individual to enter into any place. Hadd is a limit which is fixed by Allah or His prophet. In
Quran there are different verses which mentioned about Hadd such as ‫ تلككحهودكهللا‬and ‫ ومنكيتعهكحهودكهللا‬those
who transgress the limit of Allah. In Quran we have punishments Hadd Sareqa, and Zina. Intoxication is on
the bases of Ijma, the punishment of Rajum in the case of Muhseen is based on the tradition of Holy prophet
(PBUH).
The offence of Theft: theft is divided into two types. We have to distinguish that whether it lies to liable to
Hadd or liable to Tazir. According to Surai Maida, a person whether male or female who is theft his hand
should be imputed, then again difference between jurists that at the first time his right hand, then left foot,
then at the third time his left hand, and according to Ahnaf and law the third time he should be liable to life
imprisonment till his death. There are major differences between theft liable to Hadd and theft liable to
Tazir. We have to make clear that in which categories it fall.
1. Liable to Hadd: According to S.5 of Offence against Property Ordinance:
1. Offender must be adult: if he is minor, he is not liable to Hadd, in PPC a person who is less then
seven years he is exempted from criminal liability, fro seven to twelve if he is sane he is liable, then
from twelve to eighteen years he is liable but he will get lesser punishment. A minor is a person who
is short of eighteen years. According to Islamic law, it is also difference that when the person is
liable, age or puberty. And difference also rises about puberty, nine years for female and male 15
years in the absence of any sign.
2. Surreptitiously: to conceal once self, that the presence of that person is not known to the owner of
the property. Explanation 2 of S.5.
3. Nisab: the value of stolen property must be equal to Nisab, it is one thousand Dinar, and Gold it is
equal to 4.457 gm. S. 6 of Ordinance.
4. No stolen property. According to S. 410 of PPC stolen property. That property, which has been
taken by way of theft, is not liable to Hadd. Explanation 1 S.5
5. Hirz.
If the above five requirements are fulfilled the offender must be punished as Hadd punishment means
that at the first time his first hand shall be amputated then again his left foot shall be amputated, and third
time he shall be imprisonment for life till his death.
2. Liable to Tazir: According to a S.378, theft:
1. Dishonest intention. S. 24. Whoever does anything with the intention of causing wrongful gain to one
person and wrongful loss to another person.
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2. Movable property: wall cannot be stolen, if it is abolished and converted to debre it can be stolen, fan
cannot be stolen unless it is separated from the roof. Immovable cannot be stolen, land cannot be stolen,
and it can be dispossession.
3. Out of possession: property must be taken out of the possession of some body.
4. Without the consent: it must be taken without the consent of the owner.
5. It must be moved: it must be removed from that place of theft. If some one gathered some property
but did not moved it, so it is not theft. And person is not liable to theft.
S.2: Definitions:
Adult: a person who attained age of 18 years or puberty. Whether 18 years is Islamic or not? Puberty nine
years for female, twelve years for male if there is sign, but in the absence of sign fifteen years. It this creates
a problem here because law should be applied firmly or constantly, and puberty is obtained before the age of
majority which is 18 yrs. Puberty is biological maturity and majority is mutual or mental maturity. In this
situation we are dealing with the offender, whether we have to choose 18 years or puberty? This is the
problem. It should be made one part, not two parts that whether majority or puberty. Because it cannot be
fixed in the court of law, that whether we have to choose the age of majority or puberty.
Hirz: means the arrangement which the owner made for the custody of his property. It is not supposed to be
wall or other things. A car is parked outside but security guard is there Hirz is found. If son steel his father
property, he is liable to Tazir not to Hadd, if spouses steel property of each other they are liable to Tazir not
to Hadd. Servants who are already in the Hirz, they are liable to Tazir.
S.3: accordance to this principle of this section, this ordinance shall prevail to other provisions of the PPC.
S.7: Proof of theft liable to Hadd: the proof shall be in the following forms:
a. confession.
b. eyes witnesses of two male witnesses. The number is not just important, but Tazkiyat ul Shohood
is also important. That the court should see the character of the witnesses. The credibility of witnesses
should be seen, just witnesses are not important. They should not be involved in Kabair.
According to Article 3 of Qanooni Shahadat there is a principle of Voire Dire that the court only will
see the ability to understand the question of court and give rational answer of the witnesses. The court is not
oblised to check credibility of the witness, but according to Islamic law Tazkiyat ul Shohood should be
considered to prove a person guilty. It is purely Islamic provision.
S.9: Theft by more than one person: in this section principle of common intention is applied. More than
one person they commit offence of theft. A gang commited theft, there are two conditions:
1. All number of gangs they have entered to the property.
2. Stolen property is divided to the number of gang and the share of every one is equal to Nisab.
S.9: Punishment of theft Liable to Hadd:
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Taxation Law (Income Tax Ordinance 2001, ITO)
Prepared by: Mohammad Ismail
Introduction
Tax was for the benefit of the king in ancient time, there were different types of tax. In England in
1695 there was tax on Window. Now a day it is the modern welfare state, so tax is necessary and essential.
Tax is price of civilization. Taxes are levied by the order of the parliament, before it was by the order of the
king.
Islamic Concept: there was revenue generation in an Islamic state as a tax, but it was not called tax. There
were different types of revenue generation in an Islamic state; such as, Zakat, Ushur, Khums, Jizyah, Fai,
and Kheraj. Till 1924 this system of revenue generation was there, but when Khalafat collapsed and secular
system established in Islamic states so the concept of tax emerged in Islamic states.
Types of Tax
1. Direct: which a person pays directly, like income tax. It cannot be shifted to any other person.
2. Indirect: such as sale tax, custom, etc.
History of Tax in Sub Continent:
In 1860 the British imposed tax in sub continent. It was Income tax Act 1860. it was terminated after
two years.
In 1886 Income Tax Act and agricultural tax was finished from income tax. And it was operative for
32 years.
In 1916 they imposed Income tax Act 1916. And they adopted graduate scale of income. They have
scaled and not equal tax such as from 1 to 100 taxes is 5 and from 101-200 tax is 10 and such.
In 1918, a new act Income Tax Act 1918 was imposed, they introduced the concept of High Court,
that the matter of tax can be appealed to HC, and introduced concept of Total Income and Taxable Income.
Then Income Tax Act 1922 introduced the concept of Commissioner Income Tax (The revenue will
be collected by the Commissioner). And this act was inherited at the time of Independence.
The above last Act was emended up to 1979, seventy one amendments.
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In 1979 there was Income Tax Ordinance 1979, on ward it was permanent levy. Anything written
can be levied even without legislation. And voluntarily appliance was introduced and contact between
payers and officer finished due to this ordinance.
IN 2001 there was tax survey and a new act has been enacted by the name of Income Tax Ordinance
2001. Permanent charge concept was introduced in it. And the subjects which were introduced: payment,
collection, penalties, assessment, refund, appeals, etc.
Concept of Charge
Tax: According to S. 2 (63) tax means any tax imposed under Chapter II, and includes any penalty, fee or
other charge or any sum or amount levialibe or payable under this ordinance.
Permanent charge has been introduced after 1979, the benefit of this is that there is no need of
enactment in every years. The charge is created when the person has income, time of tax, and place of
generation exists. So there are four elements for creating the charge which will be resulted for giving the
tax, they are as follow:
1. Person.
2. Income
3. Time.
4. Place.
1. Person: The first element of charging the tax is a person. There must be a person to pay the tax, so who
are the persons? Section 80 explains the meaning of person; the following shall be treated as person for the
purpose of tax:
1. An individual.
2. A company or association of person incorporated. It includes also a modarab, a company outside
Pakistan, financial society, foreign association, and small company which has been defined in S. 2(59A)
which has employees not exceeding 250 at any time during the year, and annual turnover not exceeding 250
million.
3. The Federal Government, a foreigner government, public international organizations.
Resident and Non Resident Person: Ss.81-82-83 explain this concept, as a person shall be resident
person for a tax year if the person is a resident individual, company or resident association for the year or
the Federal government. And a person shall be a non resident person for a tax year if the person is not a
resident for that year.
An individual is resident if he is present in Pakistan for a period or periods amount to one hundred
and eighty three (183) days or more in the tax year.
A company is resident if it is formed under any law in force in Pakistan, or the control is situated
wholly in Pakistan at any time of tax year, or it is a provincial government or local government in Pakistan.
As tax liabilities of resident and non resident person are different, therefore persons are grouped into
these three categories in the countries around the world. Tax the income of the persons based on the
following three concepts:
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1. Source Jurisdiction.
2. Residence Jurisdiction.
3. Combination (ITO 2001 adopted this system which is combination of source and Residence
Jurisdiction)
Generally all the countries normally impose tax on the persons because of their source of income in
the country which is known as source jurisdiction.
In residence jurisdiction there is a business relationship between the countries and the person.
Therefore all the income whether domestic or foreign is charged to tax.
General world practice is ignoring the nationality and concentrating on where the person resides for
business. To differentiate between residence and non residence countries around the world employ
following two tests:
1. Fact and circumstance test.
2. Arbitrary test (often) relates with number of days.
The foremost factor in deciding whether any Pakistani source income is taxable in the hands of tax
payer is the determination of residential statues of the relevant tax year.
Residents are liable to tax in respect of their total world income, where as non-residence or tax for
the income in Pakistan. The rates of income tax are also different for all of these categories and many
previsions of ITO apply differently on each of them.
2. Income: Second element for charging a tax to a person is income, that the person must have income to
pay the tax. S. 2(29) explains income. Income includes:
1. Amount chargeable to tax under this ordinance. The charging sections are from 4 to 7, which are
tax on taxable income, tax on dividents, tax on certain payment to non-residents, tax on shipping and air
transport income of a non resident person.
2. Value of goods imported: S.148. It is called presumptive tax or advance payment of tax. And it is
collected by collector of customs. The rate specified for this is in Part II of the First Schedule, which is 5 %
of the value of goods.
3. Dividends: S.150. Every person paying dividend shall deduct tax from the gross amount of the
dividend paid at the rate specified in Division III of Part I of 1st Schedule, which is 10 %.
4. Amount of Royalty / fee for technical services to a non-resident person: S.152 (1). The rate of tax
is specified in Division IV, Part I, 1st Schedule, which is %15.
5. Payment for goods and services: S. 153. it includes payment to a resident person or permanent
establishment in Pakistan of a non-resident person, for the sale of goods, or rendering of services, or
execution of contract. The specified amount of tax is in Division III, Part III, 1st Schedule, which is 1.5 %
and 3.5 %.
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6. Exports: S.154. Every authorized dealer of foreign exchange, or every banking company, export
processing zone authority, every direct exporter and export house. And the collator of customs at the time of
clearing of goods exported shall collect tax at the rate as specified in Division IV, Part III, 1 st Schedule,
which is 1%, 5%, 0.5%.
7. Prizes and winnings: S.156. From raffle, lottery, winning quiz, offered by companies for
promotion, cross-word puzzle. And rate is specified in Division VI, Part III, 1 st Schedule, which is 10 %,
and 20 %.
8. Petroleum Products: S.156-A. Every person selling petroleum products to a petrol pump operator
has income and shall deduct tax from the amount of commission or discount in the rate which is specified in
Division VIA, Part III, 1st Schedule, which is 10 %.
9. Brokerage and Commission: S.233. A person who gets brokerage or commission he has income,
so the rate which is specified in Division II of Part IV of 1st Schedule must be deducted, which is 10 %.
10. Stock Exchange Business: S.233A. A registered stock exchange has income and he must deduct
advance tax at the rates specified in Division IIA, Part IV of 1 st Schedule, which is 0.01 %.
11. Owner of the goods transport vehicle, so the tax collected shall be the final tax on the income of
such person.
12. The amount representing the face value of any bonus share.
13. The amount of any bonus declared, issued or paid by the company to the shareholder.
3. Time: The third element to charge a tax to a person who has income is time or tax year. S. 74 explains
Tax Year. It shall be a period of twelve month ending on the 30 th day of June. There are three types of tax
year.
1. Normal Tax Year: period of 12 moths if ending on 30th June fall in the year.
2. Special Tax Year: such as 1 st October to 30th September. Other than the tax year. The FBR is
going to allow him recording the reason for that delaying or forwarding the tax year, and the person apply in
writing to the Commissioner to allow him as special tax year, and he can apply also to use normal tax year.
The commission can cancel the permission which has been given to that person by recording the reasons for
that cancellation or rejection. A person who is dissatisfied for the order of commission may file a review
application to the Board and the decision of the board shall be final.
3. Transitional Tax Year: the gap between the normal tax year and special tax year which is a
separate tax year is known as transitional tax year.
4. Place: the fourth element for liability of a person who has income, and be in a tax year is the place of his
income, or place of generation of income.
Tax on Taxable Income
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Taxable incomes: S.9. The taxable income of a person for a tax year shall be the total income of the person
for the year reduced by the total of any deductible allowanced under part of IX of this chapter of the person
for the year. So the taxable income is after deduction of allowance in a tax year.
The deductible allowance is explained in S.60 which are:
1. Zakat.
2. Workers Welfare Fund.
3. Workers participation Fund.
Total Income: S.10. It is sum of the person’ s income under each of the heads of income for the year.
Heads of Income: S.11. All incomes shall be classified for the purpose of collecting the tax under the
following:
1. Salary
2. Income from Property
5. Capital Gains
3. Income from Business.
6. Any other sources.
1. Salary: The first head of income is salary. S.12 relates to this topic.
a. Definition of Salary: Salary means any amount received by an employee from an employment,
whether of a revenue or capital nature. Received here points to S.69 of ITO which explains the receipt of
income, a person shall be treated as having received an amount if it is:
a. actually received by the person.
b. applied on behalf of the person, at the instruction of the person or under law.
c. made available to the person.
b. Features of Salary of Income:
1. An amount must be received as salary.
2. by employee.
3. There must be employment.
4. There must be relationship of employer and employee.
C. What Constitutes Salary?
1. Any payment, wages or remuneration provided to an employee, even leave pay, payment in stead
of leave, overtime, bonus, commission, fees, gratuity, etc.
2. Any perquisite whether changeable to money or not.
3. Amount of allowance to an employee, even cost of living, substance rent, utilities, education,
entertainment, travel allowance. But the allowance of performing the duty of employment is not included.
4. Amount of expenditure incurred by an employee that is paid by the employer, other than
expenditure of performing the duty of employment.
5. Amount received as consideration for a person’ s agreement to enter into an employment
relationship.
6. Amount received as consideration for employee’ s agreement to any conditions of employment.
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7. Amount received on termination of employment, whether paid voluntarily or under an agreement,
even any compensation for loss of employment or golden handshake payment.
8. Amount received from a provident or other fund, to the extent to which the amount is not a
repayment of contribution made by him to that fund.
9. Amount received as consideration for an employee’ s agreement to a restrictive covenant in
respect of any past, present or prospective employment.
10. Any pension or annuity or supplement them.
11. The amount of the employee share scheme which gained made on the disposal computed in
according with the following:
a. the amount is consideration received for the disposal of the right or option.
b. the amount is the employee’ s cost in respect of the right or option.
Note: if the tax is paid by employer so the tax will be taken from the amount of salary as well, and the tax
money will be deposited in tax. No one can pay tax instead of the other. The tax liability cannot be shared. It
is under S.12 (3).‫ ك‬The rate which is fixed by ITO is in Division I, Part I, 1 st Schedule, which starts from
0.75 % to 20 %.
2. Income from Property: The second head of income is income from property. Related provision
regarding this is S.15.
The amount of rent which is received by a person in a tax year shall be chargeable to tax, except
which are exempted by ITO.
Here rent means any amount received by the owner of land or a building as consideration for the use
or occupation of, or the right to use or occupy, the land or building and includes any forfeited deposit paid
under a contract for the sale of land or a building.
The rent which is received by a person in respect of the lease of building with plant and machinery is
not included in income from property it is included in Income from other sources.
Any amount received for the provision of amenities, utilities or any other services connected with
the renting of building is included in income from other sources.
Income under this section shall be in the rate which is specified in Division VI of Part I of 1 st
Schedule, which is from 5 % to 10 %.
This provision of sub section 1 shall not be applicable in respect of a taxpayer who:
i.
is an individual or association of persons.
ii.
Derives income not exceeding 150000 in a tax year.
iii.
Does not derive taxable income under any other head.
3. Income from Business: related sections are from S.18 to S.27.
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Definition of business is in S. 2 (9) which includes any trade 57 , commerce 58 , manufacture 59 ,
profession 60 , vocation 61 or adventure 62 or concern 63 in the nature of trade, commerce, manufacture,
profession or vocation, but does not include employment (because in employment salary is only source but
in business many sources are there)
The following incomes of a person for a tax year shall be chargeable to tax under the head of income
from business U/S 18:
1. The profit and gains of any business carried on by person at any time in the year. U/S 72 of ITO
it is stated that if the business is ceased before the commencement of year or during the year, the
person is liable to pay tax. The ordinance is not looking to the cessation of business it is based on
activity, investment and other sources. So he must pay the tax.
2. Income by any trade, professional or similar association from the sale of goods or provision of
services to its members. If the income is generated by the providing of services so the person
shall be liable to pay tax.
3. Income from heir or lease of tangible movable property.
4. Any perquisite or benefit offered in business relationship in a past or present or prospective.
5. Management fee by a management company.
6. Any profit on debt derived by a person.
7. The loan and profit of bank.
8. Any amount received by banking company or non-banking companies by a mutual fund.
9. Income from the less by the bank or development finance institute or modaraba or leasing
company.
Speculation Business: U/S 19 (2) speculation business is defined as, any by business in which a
contract for the purchase and sale of any commodity in periodically or ultimately settled otherwise than by
the actual delivery or transfer of the commodity.
If a person carries on a speculation business it means that:
1. Business shall be treated as separate from any other business carried by person.
57
. Buying and selling.
. Marketing + transportation.
59
. Production.
60
. Intellects and skill is required.
61
. Skill is not so required.
62
. One time business.
63
. Business Organization.
58
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2. This section will apply to the speculation business.
3. Section 67 shall apply in speculation business.
4. any profit and gains arising from the speculation shall be chargeable to tax under the head of Income
from Business for that year.
5. Any lost from the speculation shall be dealt with section 58.
Deduction
Deduction in computing income chargeable under the head of “ Income from Business” : U/S 20.
1.
Any expenditure incurred by the person in the year wholly for the purpose of the business shall
be allowed for deduction.
2.
If the expenditure is in acquiring a depreciable asset or an intangible with useful life or more than
one year, he must depreciate the expenditure according to sections 22, 23, 24 and 25.
3.
Any expenditure incurred by amalgamated company on legal and financial advisory service and
other administrative a deduction shall be allowed.
Depreciation: S.22 (5), the value of depreciable asset of a person at the beginning of the tax year shall be:
a. Where the asset was acquired in the tax year, the cost of the asset to the person as reduced by
any initial allowance in respect of the asset U/S 23
b. In other case, the cost of the asset to the person as reduced by the total depreciation
deductions in respect of the assets in previous tax years.
Initial allowance: U/S 23. A person who place eligible depreciable asset into Pakistan for the first time in a
tax year shall be allowed for deduction.
The amount of the initial allowance shall be computed at the rate specified in Part II, 3rd Schedule,
which starts from 10 % to 100 %.
Intangibles: U/S 24. A person shall be allowed an amortization deduction of the persons’ intangibles:
a. That wholly or party used by person in deriving income from business.
b. That has a normal useful life exceeding one year.
Pre-commencement expenditure: a person shall be allowed a deduction for any pre-commencement
expenditure in accordance with S. 25.
The expenditure shall be amortized at the rate specified in Part III of the 3rd Schedule, which is 20
%.
Pre-commencement expenditure means any expenditure incurred before the commencement of a
business wholly to derive income chargeable to tax, including he cost of feasibility studies, construction of
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prototypes, and trial production activities. But expenditure for acquiring land or which is depreciated under
S.22 and 24 shall not be included.
Scientific research expenditure: a person shall be allowed for deduction of scientific research expenditure
incurred in Pakistan in a tax year wholly for the purpose of deriving income from business chargeable to tax
under S. 26.
Scientific research means any activity in the fields of natural or applied science for the development
of human knowledge.
Employee training and facilities: a person shall be allowed of deduction for expenditure incurred in tax
year respect of:
a. Any education institution or hospital in Pakistan established for the benefit of the person’ s
employees of their dependents.
b. Any institute in Pakistan established for the training of industrial workers recognized, aided or
run the Federal Government or Provisional Government or Local.
c. The training of any person being citizen of Pakistan in connection with a scheme approved by
the board for the purpose of S. 27.
4. Income from Capital Gains: U/Ss 37, 38: capital gain gains are the profit that a person makes when he
buys something and sells it again at higher price. A gain arising on the disposal of a capital asset by a person
in tax year shall be liable to charge under this section. The gain arising on the disposal of a capital asset
shall be computed by A-B, where:
A. is the consideration received by the person on disposal of the assets, as in S/77
B. is the cost of the asset.
Capital assets are those assets which a person gets the profit from that. In Pakistan land is not capital
asset. The gain which is gotten from the capital asset is called capital gain. S. 75 (1) explains the disposal of
capital assets, when the asset is:
1. Sold, exchanged, transferred or distributed.
2. Cancelled, redeemed, relinquished, destroyed, lost, and expired.
3. The application of business asset to personal use shall be treated as a disposal of the asset by the
owner of the asset at the time the is asset is so applied.
S. 2 (10) defines asset which is defined in S.37. All those assets when stays with the owner and capable of
generating income. It does not include: any stock in trade, any property with respect a person entitled to a
deprecation deduction U/S22 and 24, any immovable property, any movable property, excluding capital
assets which is specified in S.38 (5) namely:
a. a painting, sculpture, drawing.
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b. jewellery.
c. a rare manuscript, folio or book.
d. a postage stamp or first day cover.
e. a coin or medallion
f. an antique.
5. Income from other sources
S. 39 explain this topic and this section is residuary head of income. The income of a person during a
tax year, if not included in any other head is Income from other sources. It includes the following namely:
dividend, royalty, profit on debt, ground rent (such as undeveloped land), rent from the sub-lease of the land
or building, income from the lease of building with machinery, income from provision of amenities, utilities
or any other services, any annuity or pension, any prize bond, winnings form a raffle, lottery, any amount
received as consideration, faire market value, any amount received as consideration of vacating the
possession of a building, etc, which are mentioned in S.39.
Exemptions and tax Concession
1. Agricultural Income: S.41. Agricultural income derived by a person shall be exempted from tax
under this ordinance. Agricultural income means:
a. any rent or revenue derived by a person from land which is situated in Pakistan and it is used for
agricultural purpose.
b. any income derived by a person from land situated in Pakistan from:
i. agriculture.
ii. Cultivator or receive of rent in kind.
iii. The sale of cultivator or receive of rent in kind.
d. any income derived by person from
i.
Any building owned by receive of rent.
ii.
Any building occupied by the cultivator, or the receive of rent in kind.
2. Diplomatic and United Nations exemption: the income of an individual entitled under Diplomatic
and Consular Privileges Act 1972 shall be exempted from tax. Or Income under The United Nations Act
1948. Or any pension received by a person, being a citizen of Pakistan by virtue of the persons former
employment in United Nations or its specialized agencies.
3. Foreign Government Officials: salary received by employee of a foreign Government as
remuneration of services.
4. Exemption under international agreements:
i. under any international treaty if there is any exemption of tax.
ii. Any amount by Aid agreement. Such as Predicator of Polio, the payment of their directors,
workers are exempted.
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iii. Any amount received by a person not being a citizen of Pakistan engaged as a contractor,
consultant or expert on project in Pakistan shall be exempted form tax.
5. President’ s honors: any allowance attached to any honor, award or medal by the president of
Pakistan shall be exempted from tax.
6. Profit on debt: any profit received by a non-resident person on a security issued by a resident
persona is exempted from tax.
7. Scholarship: any scholarship granted to a person to meet the cost of person’ s education shall be
exempted.
8. Support payments under an agreement to live apart: amount received by a spouse as support
payment under an agreement to live apart is exempted.
9. Federal, Provincial and Local government incomes are exempted.
10. Foreign source income of short-term resident individuals: individual foreigner in Pakistan who
is not exceeding three years shall be exempted from tax.
11. Foreign source income of returning expatriates: any foreign source income derived by a citizen
of Pakistan who is not present for four tax years in Pakistan is exempted, and citizen of Pakistan leaves
Pakistan during a tax year and remains abroad during that year any income chargeable under the head of
salary is exempted.
12. Exemption under Second Schedule: It has four parts:
i. exemption from total income.
ii. Reduction in tax rates.
iii. Reduction in tax liability, such as techniquers, and old men.
iv. Exemption from specific provisions.
The government from time to time shall give notification in official Gazette, making amendment in
the 2nd Schedule. Adding any clause, omitting any clause, or making any change.
13. Exemptions and tax provision in other laws: no provisions of any other law provision exemption,
reduction in rate or liability or exemption from provisions of this ordinance shall have effect unless
provided by this ordinance.
Limitation of exemption: where any income exempt from tax under this ordinance, the exemption
shall be limited to the original recipient of that income and shall not extend to any person receiving any
payment wholly or in part out of that income.
Tax Avoidance and Anti -Avoidance
Avoidance is opposite to tax evasion. Any person can avoid the tax but with some legal formula. It is
legal. And anti-avoidance is that there should not be any abuse of tax avoidance. Tax evasion is illegal and
there are many ways practiced for tax evasion:
a. Binami transaction, nameless, fictitious, fraudulent transactions.
b. Under invoicing of exports: to writ less the amount of exports.
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c. Over invoicing of imports.
d. Inflation of the expenditure.
e. Reduction of the sale.
f. Factitious losses.
g. Creation of trust.
There are some remedial measures to control the tax evasion which are as:
i. access of codes.
ii. Reporting system.
iii. Allotment of National Tax Number.
iv. Regulation and audit of donation to political parties.
v. Intelligence system.
vi. Simplicity in tax law.
Tax avoidance may involve cheating and double dealing but it is within the frame work of the tax
laws. Where the tax avoidance device is legal there is no wrong seen.
S.108 deals with transaction between associates: the commission may, in respect of any transaction
between persons who are associates, distribute, apportion or allocate income, deductions or tax credits
between the persons as is necessary to reflect the income that the persons would have realized in an arm’ s
length transaction. And the commission may determine the source of income and nature of any payment or
loss as revenue, capital or otherwise.
S.110 deals that when the salary is paid by the private companies to an employee of the company for
services rendered by the employee in an earlier tax year and that salary is not included in the employee’ s
salary, the Commissioner may if reasonable ground to believe that payment of the salary was deferred,
include the amount in the employee’ s income under the head of salary.
S. 111 deals that if the person does not offer any explanation regarding the nature and source of the
amount credited or the investment, money, valuable article, or funds from which the expenditure was made,
the commission may if he is satisfied, the amount shall be included in the persons income under the head of
Income form other sources to the extend which is not adequately explained.
Return
At the end of every year, it is necessary for certain persons to inform income tax authorities about
total income they have earned during the tax year and they are required to show that income earned and
exempted from the tax. All the details to be provided on a prescribed form, this form is technically known as
income tax return or Return. There are four types of income tax return:
1. Return of income U/Ss. 114 and 117.
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2. Employer Certificate U/S 115.
3. Statement (which is the final discharge) U/S 115 (4)
4. Wealth statement U/S 116.
1. Return of Income: S. 114 explains that the persons below are required to furnish a return of income
whether he pays tax or not for a tax year. It is mandatory:
a. every company.
b. every person whose taxable income exceed the maximum amount which is nto chargeable.
c. any non-profit organization.
d. any welfare institution.
e. a person who is disconnecting business he must submit also return fo income for the period of
commencing on the first day of tax year till the discontinuance occurred and ending on the date of
discontinuance and this period shall be separately charged.
f. many other persons who are mentioned in this article.
Return must be:
a. in prescribed form, accompanied with annexure, statement, documents.
b. Fully state the relevant particulars information as specified in return form.
c. Singed by the person or his representative U/S 172.
An electronic or which is filed electronically in web shall be deemed to be a return for the purpose of
this Section. The board by notification will explain some rules regarding return. A commission can also
require a person or persons by notice in writing to furnish return of income by the date specified in that
notification, not less than twelve months where the person died, bankrupt, liquidated, or person leave
Pakistan permanently.
If a person discovers any omission or wrong he can file revised return subject to the following
conditions:
a. It is accompanied by revised accounts or audited accounts.
b. The reason for the revision, in writing, and duly signed by the tax payer.
2. Employers Certificate: S/115 explains that persons not required furnishing a return of income. If an
employer who is taking salary the entire income of him is under the title of salary it is not required for him
to submit the return. Annual Statement of Deduction of Income Tax from Salary if filed will be sufficient
for the purpose of Return.
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3. Statement: S/115 (4) any person who is not obliged to furnish a return for a tax year because all the
persons income is subject to final taxation shall furnish to the Commissioner a statement showing such
particular relating the person’ s income, and such form and verified in such manner as may be prescribed.
4. Wealth Statement: S. 116. the Commissioner may by notification in writing, require a person to furnish,
on the date specified in the notice, a statement in the prescribed form and verified in the manner which is
prescribed, to show total assets and liabilities, and his spouse assets, minor, children’ s asset, any assets
transferred, total expenditures incurred by the person, etc.
Method of furnishing return and other documents: When a return of income of must be send? A
company shall be furnished:
a. in case if it starts from 1 st January to 30th June , then on or before 31st December net following
the end of the tax year.
b. In other cases, on or before the 30th of September
A return of income for any person the Annual Statement of deduction of income tax from salary, shall be
furnished:
a. before 31st day of August next following the end of the tax year.
b. for person other than above before 30th September.
A wealth statement shall be furnished by due date specified in notice to furnish such statement.
If a person is not borne on the National Tax Number Register and fails to file an application in the
prescribed form such return or certificate shall not be treated as a return or certificate. S. 181 explains that
the tax payer shall apply for registration.
Failure to furnish the return penalty will be imposed as it is mentioned in S. 182 and rate of penalty
is also mentioned in this section.
Income Tax Authorities
According to Section 207, there shall be the following Income Tax Authorities for the purposes of
this ordinance, namely:
a. Board (FBR)
b. Chief Commissioner Inland Revenue.
c. Commissioner Inland Revenue.
d. Commissioner Inland Revenue (Appeals)
e. Additional Commissioner Inland Revenue.
f. Deputy Commissioner Inland Revenue.
g. Assistant Commissioner inland revenue
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h. Inland revenue officer.
i.
Inland Revenue Audit officer.
j.
Superintendent Inland Revenue.
k. Inspector Inland Revenue.
l.
Auditor Inland Revenue.
Appointment of Income Tax Authorities: S. 208. The Board may appoint all the above mentioned posts,
and such other executive or ministerial officers and staff as may be necessary.
By any order of the board any authority may appoint any income tax authority subordinate to it.
Jurisdiction of Income Tax Authorities: S.209
1. The above i, ii, iii shall perform all functions and exercise all powers under this ordinance as may be
assigned to them or as Board may direct.
2. The Board or Chief Commissioner may by order confer all or some power to the officer of Inland
Revenue. But order of Commissioner shall be with approval of board.
3. If a question arises that whether Commissioner has jurisdiction or not the question shall be decided
by the Chief Commissioner and if not agreed then by the Board.
4. if a person furnished the return he cannot challenge the jurisdiction of the Commissioner.
Question regarding the Jurisdiction relates to:
a. Abdication of jurisdiction.
b. Lack of jurisdiction.
c. Excess of jurisdiction.
Disclosure of Information by a public servant: S.216 (1)
All particulars which a person submit in a return such as:
i. Statement of account, document.
ii. Evidence given affidavit, deposition, etc.
iii. Any record of assessment proceedings or any proceeding relating to recovery of demand. Shall be
confidential with the public servant and is not allowed to disclose it to any person.
Appearance by authorized representative: when a person is required to present before the Commissioner
he must present by himself except as provided in S. 176. And according to S. 172 and the following persons
are representative of the person namely:
a. a relative of the taxpayer.
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b. A current full time employee of the taxpayer.
c. Any officer of a scheduled banks with which he taxpayer maintains a current account or has
other regular dealings.
d. Any legal practitioner in civil court in Pakistan.
e. Any accountant.
f. Any income tax practitioner such as B.Com, MBA, etc
Bar of Suits in Civil Courts: no suit or other legal proceeding shall be brought in any Civil Court against
any order made under this ordinance, which is in good faith done or intended to be done under this
ordinance or any rules or order made. But according to SC if it was not in good faith then writ jurisdiction
can be done. PLD 1972 SC 279. and if exceed of jurisdiction then a person can go to civil court according to
PLD 1999 Karachi (79 Tax 627).
Assessments
The cycle of income tax is: submission of return------assessment-----payment----recovery-----refund.
S.120 explains assessments. There are two types of assessment:
1. Self Assessment: when return of income is furnished to the board by the person, and that return
shall be taken as an assessment and it is self assessment. Assessment by the tax payer is called self
assessment.
2. Best Judgment Assessment: when the authority in the absence of tax payer assessed it is best
judgment assessment. Assessment by the tax authority is best judgment assessment.
Self Assessment: When taxpayer has furnished complete return of income the Commissioner shall be taken
to have made an assessment of tax and equal to these amount specify the tax due to him. If the return furnish
is not complete, the Commissioner shall issue a notice to the taxpayer informing him to the deficiencies and
directing him to provide the information, particulars, documents, statement, etc by such date specified in the
notice. If the tax payer fails to furnish, the return will be considered as fail return. If he furnish completely
then the Commissioner will issue specific amount of tax.
Best Judgment Assessment: where a person fails to furnish the documents as above, or to furnish a return,
or to furnish the statement as required U/S 116. The Commissioner may based on any available information
or material to the best of his judgment make an assessment of the taxable income of the person.
When the Commissioner assessed he shall issue the assessment order to the taxpayer stating:
a. The taxable income.
b. The amount of tax due.
c. The amount of tax paid, if any.
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d. The time, place and manner of appealing the assessment order.
The assessment order under this section shall only be issued within five years after the end of the tax
year or the income year to which it relates.
Advance Tax and Deduction of Tax at Source
1. Advance payment of tax by tax payer.
2. Advance tax to collection agent. Such as banks.
3. Deduction of the tax at source, such as salary.
1. Advance payment of tax by tax payer: S.147 it is also called withholding or advance payment. Instead
of waiting for one year the tax payer collect tax of his income in advance.
2. Advance tax to collection Agent: S. 148. Imports: the collector of custom shall collect advance tax from
every importer of goods on the value of the goods at the rate specified in Part II of the 1st Schedule, which is
5 %. It shall be collected as the same way as the customs duty payable in respect of import. The advance tax
shall be final tax on income of importer arising from the imports. And it does not apply to raw material,
plant, machinery, equipment, fertilizer, motor vehicles in CBU condition, large import house, who paid
capital exceeding 250 million or who imports 500 million during a year, etc.
3. Deduction of tax at Source: S. 149. Salary: every employer paying salary to the employee shall at the
time of payment, deduct tax form the amount paid at the empolyee’ s average rate of tax computed at
specified in Division I, Part I of 1st Schedule which starts from 0 to 10 %.
Dividends: any person paying a divddend shall deduct ta from the gross amount of the divident paid
at the rate specified in Division III or Part I of 1st Schedule which is 10 %.
Appeals
1. Subject matters of the appeal:
S. 127 explains that: If any person dissatisfied with any order passed by a Commissioner or a officer
of Inland Revenue under the below circumstances can file an appeal to the Commissioner (appeals) against
the below orders:
1. Best judgment assessment. S.121
2. Amendment of assessment. S.122
3. Non-resident ship owner. S.143
4. Non-resident aircraft owner. S.144
5. Recovery of tax from the person whom tax was not collected. S.162
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6. Refund. S.170
7. Penalty for failure to furnish the return. S. 182.
8. Additional tax. S.205
9. Failure to collect under S. 161 (1)
10. Declaring a person to be representative of a non-resident person.
11. Rectification of mistake. S. 221.
12. Order having the effect of enhancing the assessment.
13. Order of reduction a refund.
14. Order of increasing liability of the person.
2. Requirements: 1. full amount of due tax is paid on due date.
2. Paid the amount according to S. 137 (1)
The other requirements are that an appeal shall be:
1. In prescribed form.
2. Verified In the prescribed manner.
3.
State precisely the grounds of appeal.
4. The prescribed fee has to be paid and attached, which is one thousand in assessment case if the
appellant is a company, if not then two hundred rupees.
5.
Be lodged with the Commissioner (Appeals) within due time means within thirty days. If the
Commissioner is satisfied that the appellant was prevented by sufficient cause from lodging the
appeal within that period he may admit his appeal after the time as well.
3. Decision in appeal
1. The Commissioner may make an order to confirm, modify, annul the assessment order after
examining the evidence, or make any other order.
2. The Commissioner shall not increase any amount of assessment or decrease the amount of any
refund.
3. If any changes are made in assessment, the Commissioner (appeal) may authorize the
Commissioner to amend accordingly.
4. He must send his decision to appellant and also to the Commissioner.
5. If the Commissioner has not made an order before the expiration of four months, it is regarded
that whatever the appellant relief sought shall be treated as having been given.
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Appointment of Appellate Tribunal: S. 130: this is a second forum for an appeal, it is for both the parties
for the payer of the tax and for income tax department as well. It is next after the Commissioner (Appeal).
There should be chairperson, accountant and other judges appointed by the Federal Government. A judge to
be appointed here must have exercised the powers of District Judge and qualified judge for HC. Or has been
an advocate of HC and qualified for judge in the HC.
Appeal to the Appellate Tribunal: a taxpayer or Commissioner may appeal regarding any order passed by
the Commissioner (Appeal). The Appeal must be in the prescribed form, verified, accompanied with
documents, preferred to the tribunal within sixty days of service of order of Commissioner, and prescribed
fee must be paid which is 2000. the Appeallet Tribunal may admit an appeal after the expiration of time if
reasonable grounds are shown.
Disposal of appeals by the Appellate Tribunals: before disposal of the appeal the tribunal may require
particulars respect of the matters arising for appeal or cause further inquiry to be made by the
Commissioner. The Appellate Tribunal must give opportunity for both the parties to be heard. And tribunal
must decide within six months.
Reference to the High Court (HC): within ninety days of the order of Tribunal the aggrieved person or
Commissioner may prefer an application in prescribed manner to the HC, stating any question of law arising
out of such order. Here in this stage just the reference goes to the question of law. If HC satisfied that a
question of law arises may hear from both the parties by the bench not less than two judges of HC in respect
of the reference. After hearing pass judgment specifying the grounds on which such judgment is based. And
court shall send a copy of judgment under the seal of the court to the Appeallet Tribunal.
Alternative Dispute Resolution: this is also one of the stages for resolving any problem which arises
between the tax payer and tax departments. It is out of the court by the way of arbitrations, and then it must
be conformed by the court. For more detail regarding this please refer to Section 134-A of ITO 2001.
The End
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