Case Study Of Selected Cases On (Substantive and Procedural Laws) PREFACE. The eases have been selected for '"caw study", keeping in view the jurisdictional requirements of ihe trainee Magistrates on substantive, as well as procedural laws. Secondly e<*ses have been selected not only from Pakistani jurisdiction but also from English and Indian jurisdiction as well for the reasons that the principles o f law are almost common. Thirdly, the topic selected from Penal Code is from statutory defences, covering (a) m istake o f fa d s (b) Infancy (7-W j bicapax) (cj Triviality (Derrrims non curc.il lex} (d) the right of self defence of property and (e) act of necessity. The cases idejitified from Qanun-e-Shahadat cover (a) who may testily (competency) (b) Relevancy of fact i.e. identification of known & unknown. The subjects selected from criminal procedure enmate from the provisions, covering (J) search of place (2) urgent preventive actions i.e. public nuisance. Justice (R) Shabbir Ahmed* Consultant Law Expert. CONTENTS: 1. <3cncr.il. I»irwurliv>ii; [Niifx^c o>fCrijiiinal 1-au. fund-uiicncul pri-i<; rjiul T'uit ish iri-J nt [h c o rv th e re o f ^K . ........ 2. KLNU^CODE. ............... SLjIjUm^ IX'lCiKtN. Vi-.aku o f Kac:s. Wiiiyjm Sm^h V. Bm|vror. (AIR 1926 Lotc/c 5:J>. ^L>u.- m'Oris-n v. K m bahaduj Thfj-ja (AIR J%&Ori kill ' Infancy. IViillxr* V. [.inn. 11 4 5 1) ] A ] , I. IIK 6-15. J_Mvialil_v. Mrs. MoikViS V. V'JSLt'KLir.. (AJJt [9fti SC P731. Ji iyl .1 I>r pi .vale dcfcncc o f p r o 'jf l;- .V1i.' Dnd & ollicv V The (.-ovfn. lA lW r »?(, I iilkin." 7 J>. jjcfcnw of N«?sutv. R . V . D ijcII l v juid MCjihCilr-. NORMS ALLEFWJj. ■>.. OANUy-E-^HAH.AOAT. t. hiI<J W iir.-v . ......... M'.llliiirmihl li«n'/i! V. I liij SLU l . (SI1I.K 2UIJJ S.lulhVSI). Idtntificaucji -M' Kno.'T. Afl ides inul I 'nN ik iv m i J’^ i s i>hj.................... Ashiirll & m M ic is v'. j he Stntc. lALU kltiJ Allfilif.K.-J I??). •I. c o m ? O F C R I M IV A i . f u i k : h i m l < t i . ..................... Si*.id 'i o: PUisc. n t :il * V I kiv i I ifc i 'U ili s. in.i) ivv? nc k s i . I'ijI’Ml N im jix.:. Muni<;i'i;il o o u h l i I, KM-ain V . Yardhiclum d <*ind -Jlhrr?. {,-Mft ISX iiSt: lhJ2>. 1 rNTHOmX'HON. 'fhc purpose of criminal law is <o maintain peace in socictv by way ol' preventing crimes. The prevention of crimes is best as.s.uro.1 by delving, offenders and people with <i proclivily to commit crunch by way of tho threat of or imposition of punishment, THs is bciriy, done by ihe declaration of some aci'> a<. offenccs under the la*’. There arc mainly Ihree resources of criminal law. The staling, the common law and judicial decision intei'preiing, and applying Ihe common law and siamtcs. Among Ihe three branches of government — the legislature, executive and jnJjciary — Ihe legislature anJ judiciary generate criminal law. We did nol have a fully developed body ot criminal lav.' in the snbuoiitincnt prior to Ihe British mlc. What was udminisiyred in earlier time* was traditional lawbolh under Hindu and Muslim mlc. 11 was only in 1837 dial Ihe British initiated ,steps lo t-odify criminal law in Imlia. On (he report of the ]<\w commission it v'as only in 1860 I hat the tegisJalur? could «>act the penal code and later in lfi61 general criminal procedure code. This wus ieplaccd l>y X of 1872. A uniform law o f procedure u;une inlo rbrcc in lfiS2 by act X of 1882, supplemented by ihe penal code in 1898 providing rules lor investigation, eslnblishnwnt of criminal courts and Ihe trial of the ollcnces eit-. liefbu; die origin ol'the legislature Si'jcial order depended on obedience to u m w t U ic m rules — the “(ex-non-xcripi'u" — bus'tsl on easterns. The criminal law hi Ibe sub-continent 2 descended these unwritten rule, in the course of time got incorporated into court decision. It is basic principle of criminal justicc, that every crime is composed of two elements, criminal acl and criminal intent. Neither a act alone nor intent alone is sufficient to constitute a crime. As indicated in act (actus reus) and criminal intent (mens rea) must concur to establish criminal responsibility. It would be futile and dangerous for the state to attempt to punish individuals merely for a subjective state of mind, which is impossible to determine with certainly anyway, or for conduct engaged in by mistake. In order to secure conviction of an accused for a crime it is obligatory for the prosecution to prove (a) that a certain event or a certain stale of affairs, which is forbidden by the criminal law, has been caused by his act or conduct and (b) that his act or conduct was the result of a prescribed state of mind. The event, or state of affairs is usually called the “actus reus” and the state of mind the "menu rea" of the crime. The latin maxim “actus non facit reum nisi mens sit rca". explains the principle that one is not criminally liable for his conduct or act unless the prescribed state of mind is present. The mental element is popularly described as the "mens rea” and the other element as the “actus reus”. The "actus reus” amounts to a crime only whent it is accompanicd by the appropriate “mens rean. 3 The crime exists only when “actus rea” and “mens rea” coincide. The “actus reus" without mental dement simply can not exist. In fact mental element is the part o f “actus reus" and is the necessary element of the offence. However, it is possible for the courts to dispense with “mem• rea” in whole or in part in certain eases such as when the offender has committed offence under intoxication or when he was insane. This is pertinent to mention that a court can not dispense with the “actus reus”. Well known definition of “actus reus” is “it is result of conduct as the law seeks to prevent”. The “actus reus" is not merely an act. It may indeed consist in a state of affairs, not including an act at all. Much more often, the “actus reus” requires proof of an aet or an omission (conduct). Usually it must be proved that the conduct had a particular result. The actus reus then is made up, generally but not invariably, of conduct and some times its consequences and also of the circumstanccs in which the conduct takes place (or which constitute the state of affairs) in so far as they are relevant. Cireumstanccs, like consequences, arc relevant in so far as they arc included in the definition of the crime. The actus reus may be either a positive act, or a failure to aet when a duly to act is imposed by law, thus, it may be either a commission or sui omission. A person who gives poison to another with intent to cause his death commits a crime by an act of commission. A person who withholds medicine from a dying person, which it is in his power to provide, with the intent to cause the death of that person, commits a criminal act by omission. 4 Where the law imposes a duty to act, failure to act may he a crime to ihe same extent that acting against the prohibition of the law may constitute a crime. The word "mens red" in the criminal law means the state of mind of the actor, or his intent. The “mens recF is the necessary mental element of the crime. An old legal axiom says. “An act does not make the doer of it guilty, unless the mind be guilty, that is, unless the intention be criminal”. The intent and the act must both concur to constitute a major crime, thus, both the “actus reus” and “mens rea” are neccssary elements of a crime. There are many definitions of “mens rea" besides the ones given above. "Mens rea " has been held to mean a guilty mind: a guilty or wrongful purpose; a criminal intent. Some definitions distinguish between the general and specific state of mind, or between general and specific intent. These principles that cover the material elements in criminal responsibility include legality and punishment. The state can not punish citizens without specific laws forewarning citizens that particular conduct will be dealt with by way of punishment in a particular manner. Legality includes the following (i) nullum crimen sine lege (the principle that nothing is a crime without a specific law defining it as such); (ii) the constitutional prohibition against ex-post facto laws (laws passed alter the occurrence of the conduct); and (iii) nulla poena sine lege (the principle that no punishment is administered without specific authority in law). The basic idea that the law must define the crime in advance has a long history. These principles are found incorporated in Article 12 of Constitution o f Islamic Republic of Pakistan. 5 The rules, against Ex-Post Facto Laws,this prohibits - (i) law's that make a crime of and punish conduct done before their passage; (ii) laws that aggravate a crime after it was committed; (iii) laws that increase the punishment for a specific crime after the crime was committed; (iv) laws that alter the rules of evidence to convict an offender, requiring less than the law required when the offence was committed.