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English Jurisprudence

Juris means Law or Legal or Wise and Prudentia means knowledge so Jurisprudence means knowledge of law.

There are two types of laws, God made and man made laws.

God made laws are natural, fixed, rigid, unchangeable, and uniform (same laws at all time and at all place), while man
made laws are inverse in position. Man made laws are concerned with what ought to be.

Theoretical or general laws are those that are applied most of legal systems. Particular jurisprudence is developed in
courts or in a particular society. Theoretical or General jurisprudence has three kinds:

1. Historical: It deals with the past of the law and its evolutionary process. Also it deals with origin of the law. This is
the jurisprudence of the past.

2. Ethical: It deals with the philosophy of what ought or should be? It deals towards the supreme good. It seeks
towards the ideal form of law. It is jurisprudence of future.

3. Analytical: It deals with the analysis of laws, which are existed at present. It is the jurisprudence of present and
being the student of law we are concerned with the analytical jurisprudence.

Definitions: “It is a science of civil law, John Salmond.” It does mean the systematic arrangement of knowledge. Civil
law means the law of land or state or sovereign. “Formal science of positive law, Holland.” Positive law means man
made law which deals with shape and not with material. “Scientific synthesis of essential principles of law, Allen.” By
dictionary: “It is a name given to those studies, researches, and speculation, which aim primarily at answering the plain
question what is law.”

Legislature made law is called statue law. Customs made law is called customary law. Precedent made law is called
judgement law.

Contract is determinant of right and duties. Fundamental rights are inherited rather than law of land. Constitution just
protects it and sometime limits them.

Social Sciences: Relation of individual with society and vice versa. Wine consumption in Europe is just right but strictly
prohibited in Pakistan. In Iran wine was allowed but not at present. Ethics has close relationship with society. Sound
ethics creates sound society. Good government creates good laws. Good economy creates good law. If economy is
stable then law is stable.

Ethics: it deals with morals of person. It has two branches: 1. Ideal Moral Code, and 2. Positive Moral Code.

1. Ideal Moral Code: Written/engraved on heart of everyone.

2. Positive Moral Code: Man made, not uniform, not universal, convenient at certain place and at certain time. Wine
consumption in Iran at different time.

Time: A – B: Place: B – A. Time and place are variables.

Psychology: It is a mental science. It deals with root causes and elements which are behind the criminal mentality so
it may be removed. Some time crimes are committed that due attention was not paid to certain people.

Sociology: Law what effects make to the society. Caveman was alone, hunting, might is right, self help, revenge. Chief
of tribe. City-states, Nation. Community of the state. King was ruler. King was the foundation of justice. State came
into being as artificial person. Constitution was made.
Question. How law was developed? It is a body of principles (legislature) recognized (courts) and applied (executive)
by the state in the administration of justice.

Law is a collection of rules that are recognized by the courts. Weaker person was benefited by the social contract,
which was made between the government and society.

Natural justice is universal, written and engraved in the human hearts and known to everyone.

Legal justice is modified form of natural justice.

Limitation Act: If case is not proceeded in the stipulated time period, it becomes time barred and cannot be sued. Law
helps vigilant and not to the indolent. Why the time period is imposed in certain cases? Law does not like litigation.
Lawsuit against the denied person must be proceeded within 3 years after it is denied. Ignorance of law is not excused.
Time barred persona has lost his remedy.

Legal justice has two kinds, i.e., Private Justice and Public Justice. Public Justice has also two kinds, i.e., Civil Justice
and Criminal Justice.

Civil justice involves remedy while criminal justice punishment. Tort is civil wrong independent of contract. Justice is
provided according to the law. Courts have not free hand and they have to decide by fixed law.

Advantages of the fixed law:

1. Uniformity and certainty: Law for every person and it is governed by the similar fixed law.

2. Equality and impartiality: Law does not know a particular personality and decided without favourism. Law is not
respective of personalities. Everyone is equal in the eyes of law.

3. Protection of errors of individual judgement.

Disadvantages of the fixed law:

1. Rigid: Law is made considering/visualizing of a particular time. Law is made in abstract form. There is possibility of
injustice. Judge has to react according to law.

2. Conservatism: Since law is rigid but human wants and needs ever changes accordingly. Society is dynamic, but the
law is made in specific time and remains conservative.

3. Formalism: There are many formalities in the process of law making. Bill is presented in the legislature, it is
discussed in detailed by word by word and made after long time.

4. Complexity: Huge law making make it very complex to understand particularly in Pakistan.

What result comes from the advantages and disadvantages of the fixed laws? It is held that magnitude of the
advantages of the fixed laws is higher than the magnitude of the disadvantages, so it should be continued.

Subordinate courts are bound to decide according to the decision of the superior courts. Single Bench of High Court
has to follow the lines of Double Bench and then Full Bench. It is the law that every subordinate Court has to follow
to its higher courts. Same situation is followed in the Supreme Court. Law that is to be interpreted by the High Court,
if has many interpretations, only the option will be decided which will be more nearest to the justice. This is moral
obligation of the judges. Decision should be that which brings the ends of justice. Laws are valid because they have
ethical element.

Is law territorial: It is made and applied for specific territory so it is territorial in nature. It not applicable to other
countries beyond the territorial limits. There are some exceptions in the enforcement of territorial law. Law does not
apply to the minorities they have their own personal laws. Also it is not applicable to the diplomats, and ambassadors
etc.

Imperative means obligatory, compulsory, essential, important etc. John Austin introduced this theory. He was
solider in the British army. At the time of presentation of this theory, Kingdom was at peak of its authority and all rules
of king were considered law for whole of the society. Everyone was bound to obey the rules of king. They had to do
the acts which were ordered to do and they had to refrain to do which were ordered to not to do.

“Law is a command of Sovereign with sanctions.” At first time looking at this definition of law impresses everyone.
This definition is closely associated with the theory of punishment. It means this theory was backed up by the concept
of punishment. And second one is that king or crown has lot of powers that are seemed unlimited. He can do
everything and there was no authority that could impose embargo on his power. He is above to all and not subjects
to the rules of others. Everyone has to follow him.

Now we look into the ingredients of the imperative theory of law that he means:

First ingredient of the theory is Command that means expression of wishes or desire to another person so that other
person should do particular thing or act and refrain from doing a particular thing or act. Every positive law is a creature
of sovereign and he is the supreme. Sovereign is the author of laws.

Second one is sanction or punishment that does mean in case of non-compliance with the command the person will
face some evil consequences and some evils will be inflicted to him. Sanction is the another part of the Austin’s theory.
It means if I do not complies with the wishes and no one will harm me or cannot harm me then it will not be a
command. Command includes the punishment if wish is not complied with and also not to be done. Any command,
which do not follow the punishment, cannot be called command. It will be just advice or set of advises.

Another part of the theory is sovereign who is determined superior human being not in the liability of obedience from
alike of a given society that superior is sovereign in that society. He is also the force, which is behind the sanction.

Now we arrive at the point that command:

1. Should be general to the people.


2. Should prescribe cause of conduct.
3. Should be enforced by the force of state.

There are Natural (God) and Political superiors in the society. Powers of the superiors are Unlimited, Indivisible, and
He is independent of control internally (within the limits of geographically boundaries) and externally (internationally).
Punishment and obligation as correlative matters is the theory of Austin. They go together. Where there is obligation,
there is punishment, and vice versa.

Imperative theory of Austin has some defects that includes:

1. In this theory Austin ignores the ethical aspect and emphasized on obligation while many laws are obeyed and
followed by choice and on free will of the people. They feel inner satisfaction upon submission. Law was
permissive in nature in primitive societies. Personal laws are not command of sovereign but they are laws without
punishment and obligations and are followed habitually since the birth of universe. Law of will, inheritance,
marriage, divorce, etc. are not of obligatory types. Law always not obligation and there are many exceptions
while Austin’s law is always obligatory while many laws are not enforceable externally but people accept them
internally.

2. In modern era, law has been divided in two main categories, i.e., criminal law and civil law with the difference of
punishment and remedy. There is not punitive aspect in civil while they regulate our civil matters and also regulate
the system of society. If we accept the Austin’s theory then we have to negate the civil laws, which consist almost
on half of the total laws.
3. Life of a person does not follow any command of sovereign. Life does not come into being with the command of
sovereign while laws of birth, welfare, and willingness regulate the social integrity. Before the emergence of
legislature, people were regulated their lives with religion, customs, ethics, etc. They are complete laws
but Austin does not accept them as law on the base of exclusion of obligation and punishment.

4. Many laws come to repeal the existing laws. They are complete laws excluding obligation and punishment.
According to Austin’s theory they cannot be considered as laws while they are complete laws.

5. Sanction is imposed to those who rebel against the government. It means magnitude of law is very low and other
matters of society do not follow any rule or law while the law is very important element to run the matters of
society. Laws regulate the social requirements. Austin’s theory implements the law on very limited class of people
and left the rest of society, which is not acceptable.

6. Law, which merely declares rights, will not be law as per the imperative theory of Austin.

7. International law is also a law, which regulates the trade, economy, mutual relationship, and respect of
boundaries. It subjects to states and not people. It is not command of any sovereign. States make agreements,
which called treaty, pact, convention, accord etc. There is no sovereign in international law. United Nations charter
regulates the relationship of states. Although United Nations has General Assembly that is law making authority
which are soft, International Court of Justice for the settlement of disputes among the member states, and
Security Council that is law enforcing agency, but it is fact that there is not sovereign and international law is
complete law without the command of sovereign and punishment. These laws are followed by way of courtesy.
International law is collection of rules to regulate the mutual relationship of the states.

8. Constitutional law of state does not a command of sovereign, made on the willingness of the people reflecting of
their demands includes the laws for sovereign. Although it has an element of obligation and punishment in some
cases, but most of its Articles do not follow any punishment and obligation.

Question of Fact: When a case is brought into Court of justice, Court is responsible to decide and settle the nature of
question in the case. All the cases consist on law and fact. Case consists on story, event, circumstances etc. are called
fact. Name of the parties, plaintiff and defendant, address, whether agreement exist between them, disputes exists,
is there any violation is called question of fact.

Question of Law: This question can be understood in three senses:

In first sense this question can be understood in the sense that the question, answer of which is already exists. Case
had brought into the Court and Court had been decided the nature of case, punishment has been decided, degree of
sentence is understood, amount of evil consequences are determined. Answer of question, which is already, exists in
law. Law is not in need to bother for the determining to question of law. Law, which is applicable in a particular case
whether law of contract will be applicable or Pakistan Penal Code will be applicable. It is a question in regard to which
discretion of the judge is ruled out.

A child less than seven year has not sufficient mental capacity to commit a crime. This rule is laid down in law.
Maximum sentence of a particular crime is already mentioned in law is a question of law.

In second sense what law on a particular instance will be applied where the law is not present already. This situation
arises where there case comes before Court first time for interpretation and the law is not present earlier. What law
will be applicable in a particular situation? This question arises in uncertain situations and if the answer is already exists
then this question will not arise and this will fall in first sense described before.

In third sense any question, answer of which is decided by the judge and not by the jury. The jury system
in Pakistan has been abolished.
Discordance between law and fact: Law consists of principles recognized and applied by courts in the administration
of justice. This is a theory, and may or may not conform to the reality of things outside.

Example: Under The Contract Act a person under 18 years of age has not capacity to enter in contract and also insane.
This is a rule because it is the age of maturity in normal circumstances. If the age is two days less, why he cannot be
considered mature? What are the factors, which make him, mature after two days? This is the discordance between
the law and fact. Law bounds a person to be major at 18 years, while facts are different, he may achieve wisdom before
18 years, in the age of 16 years, or in other case may not achieve even after 18 years, till 25 years. It is discordance
between law and fact.

This problem is solved with presumptions and fictions. Presumption is a rule of evidence by which circumstances are
proved to divert law.

Accused below seven year of age is not liable. Pakistan Penal Code has presumed that he has not sufficient mental
capacity to commit crime with which he is charged. But a child between seven to twelve year of age can be charged
after cross examination upon the proof that he has become mature and can discriminate the matter under question.

A Muslim woman may get her marriage agreement dissolved upon the claim and proof that her husband is not heard
for seven years. He is presumed to be dead. It can be rebutted by contrary evidence.

When the law was originating/bearing no legal system, judge had greater discretionary powers in order to achieve
justice object. There were only customs that were provided the sufficient ground to establish legal system or justice,
so it was necessary to delegate the maximum authority to judges to decide cases. Judge had almost 80% discretionary
powers and only 20% law was available. Remaining portion of law was filled in by the discretionary powers of the judge.
With the passage of time law moved forward, law constantly increased which decreased the discretionary power of
the judge. Now in modern time law has been developed upto 90% and still there is gap or room of 10% discretion. Legal
system has continuously converted the discretion into law. Why the 100% legal system has not been achieved, whether
it has any defect or weakness. Not at all! Law cannot be developed at 100%. 10% discretionary powers are used to
administer the justice by way of humanitarian aspect. 10% discretion develops the law in changing circumstances. It
helps in growth of new law. Human being is living entity and living being changes ever. If the 10% discretionary
authority is not given to judges, law will become stagnant and its growth will stop. Law is made in particular time and
circumstances while all the cases are not identical and cannot meet with the law available. So 10% discretionary power
is necessary to achieve the object of law, i.e., justice.

Legal Fiction or Presumption: Any assumption, which conceals and tends to be concealed the fact in which rule of law
remains unchanged while its operations are changed is called fiction. Fiction is a device by which law deliberately
departs from truth occasionally.

Examples: An adopted son is considered as a son upon the status is given to him as real son. Company is a common
example of legal fiction in which group of people are incorporated. Company is a abstract reality. It can never be seen
but exists. Company can sue and can be sued. Fiction was developed in Rome. Rome was super power and its law was
applicable only on Romans and not on aliens. Alien was dealt with natural rule of justice. But what will be done if
dispute arises between Roman and alien. They solved this problem by way of fiction. Alien was given an opportunity
to have nationality of Rome. Then he was considered Roman and not alien and law of Rome was applied on him. In
this example it can be seen easily that operation of law was changed remaining the law unchanged. This is the legal
fiction. Democratic state, king as an institution, king’s bench is examples of fiction.

Law and Equity: Equity was developed in UK and in its colonies. Common law was legal system associated with King,
as justice. Before King’s justice, Lords, in different localities, provided the justice. All the cases were decided on the
base of customs and usage’s of that particular locality. In order to administer justice, king started to send judges in
the different parts of the country. They were learned and having good reputation. They traveled place to place. They
were mobile courts. King was accompanied with them. His judges surrounded King. This king justice became very
popular in UK. This type of justice brought the different localities under the one type of justice. There were differences
in the decisions of cases earlier. Case in one locality was different than of others. Same case in different localities had
different decisions. There were variations in decisions. Mobile courts removed these anomalies and started to give
similar decisions in identical cases. This sort of justice discovered the common customs. All decisions became based
on common customs, and applied in judgement. Identical cases in different localities had same judgement. A new
system evolved named Common Law System, means same decision in same case at all places. Out of the king Court,
drew a department, Exchequer, a Finance Department. Its responsibility was to collect royal revenues. Later on
another Court drew with the name of Common Law Court. This was responsible for the jurisdiction on common pleas
matter. In these courts king was not a party, but both parties were common people. Court of common pleas was still
mobile Court. Where there was king, there was Court. Under the Magnacarta, 1215, courts were stationed at West-
minister. Remaining portion of Court became king’s bench. It was responsible in criminal matters. In these courts king
was the party. Later on, too, made it stationary at one place.

In the time of Henry II and Edward I, Common Law became in shape of codified form.

In the 14th century Equity Courts were established. Chancery courts were at work on the bases of natural justice. It
does mean fair and equitable. If someone feels un-satisfaction in the courts, and found no relief, he come in equity
courts for relief. Later on equity and chancery courts merged into a Court, responsible for both, natural justice system
and common law system. In 1875 High Court, Supreme Court, and Appeal Courts founded. Now law divided into three
categories, i.e., Statute Law, Common Law, and Natural Justice Law. Now these principles evolved and adopted
in UK that inferior courts will follow the jurisdiction of superior courts. Decision of superior Court became binding
authority for lower courts. This principle was not only adopted in UK, but in all of its colonies, i.e., Canada, Australia,
and Sub Continent etc.

Brief summary of the law and equity arises as follows:

1. King’s Courts – Mobile from locality to locality.


2. Exchequer – Finance Department to collect royal revenues.
3. Court of Common Pleas – Both private parties.
4. King’s Bench – Criminal cases in which King was a party.
5. Court of equity – Natural Justice Principal.
6. 1873 – 1875 - High Court, Supreme Court, and Court of Appeal.

Now law has been divided in two kinds, i.e., General Law and Special Law.

General law is the law that is generally applicable to all of the people of the state. It is also called the law of land. It
includes civil and criminal laws. It also includes statues, principles of natural justice, and common law.

Special law, generally, is not applicable to all of the people of the state. It is applicable on certain group of people. It
does not form a part of the general law.

Special law has also its two kinds, i.e., Local Customary Law and Local Enacted Law.

Local customary law is comprised on local customs found in the particular locality.

Local bodies/governments make law for the particular locality. Local enacted laws come from local legislature that is
empowered to make rule by legislature. Municipality is the best example, rules of which are made by the local
legislature and applied in such locality.

Foreign Laws or Conflict of Laws or Private International Laws: It does mean conflict between the laws of two
countries. If two parties enter into contract belonging to two different nationalities, then which law will be applicable
on them? Normally law is applied of the country where it is formed. For instance, a contract is made in USA, enforceable
in India, will not be regulated according to Indian laws, but according to USA laws, of the law of place where is was
made.
Conventional Laws: It means contract or agreement laws. It is specific law, which is created by parties for themselves.
They bind themselves of rights and duties. Contract Act or Companies Act is good example of conventional law. This
law is applied to particular class of individuals.

Autonomic Law: Institutions or individuals make these laws only applicable on them. These rules are enforced by
courts but they do not constitute a part of the general law, as they are not of general application. For example, rules
made by Sheikh Zaid Hospital are not applicable on Services Hospital and rules made by PIA will be applicable only on
PIA.

Martial Law: It means body of rules applied in martial courts in the administration of justice apart from civil law.
Military takes measure in the interests of state. Martial law can be understood in three different senses:

1. Rules and regulations that govern the military itself. These rules are used to administer and regulate the soldiers.
They maintain discipline and organization in army.

2. In the second sense martial law can be understood the rules which are applied during the time of war on the enemy
territory which is occupied by the army. Such territory is governed by the rules of Victorious State by its army. Civil
courts of the occupied territory may continue their functions upon the permission of occupying commander.

3. When there is disturbance, disorder, threat to integrity of state, civil war, then army chief suspends the
constitution of state and takes over the government powers to maintain peace and law and order. Threat to peace
is not tolerated at any cost. During the war, laws are silent. This maxim is applied in last sense.

Administration of Justice: In primitive societies justice was existed in the form of self-help system. Rights of every
person were not secured under self-help system. There was thinking that it should be avoided. Later a doctrine of
justice emerged that law should not be taken into hands of individuals. Victim should go to Court to invoke for justice.
Law breaking should be avoided. Under the self-help system it was impossible that violation occurs but the law may
not be taken into hands. Under this doctrine there are some exception, in which law can be taken in hands, i.e., if
anybody attacks to peaceful person, or if anybody trespass to other’s property, or under the doctrine of necessity,
law can be taken into hands. But in any case/circumstances/situation force should not exceed to the force applied by
accused/offender. It should be defensive rather than offensive. It should be taken into consideration that boundaries
of rights have been defined/determined. Boundary of the right of one person becomes end where the boundary of
right of other person begins.

What administration of justice means: It is maintenance of rights in politically organized community/society by the
physical force of the state. It means, in nutshell, that rights of other should not be disturbed.

Kinds of justice: Natural Justice and Legal Justice.

Kinds of Justice

Legal Natural

Private Public

Retributive Remedial

1. Natural Justice: It means justice, which appeals to nature and deals with just and unjust. It is true and ideal state.
The enforcement of rights and punishment of wrongs in ideal form according to the moral standards presented
by sages of ages. It also deals with concepts of right and wrong that appeals to the mind of a man. In this sense
justice is independent of state recognition.
Natural law is also known as Divine law, sent by Allah for human being. It is a law that is equal forever in all the
nations. It is also a Divine law written in the hearts of everyone. This is inner voice of people. It refrains people
from all those are repugnant. It is also a universal, social, and equal for all. It is collection of rights, truth, justice,
equality etc. It is also constant and never changes over the time. It is common to all human kind.

2. Legal Justice: It is adopted and applied by courts. No doubt that it is extracted from natural justice, but it is
imperfect form of natural justice. It is enacted by parliament. Legal justice is reflection of natural justice in the
form of imperfect realization. It is also modification of natural justice.

Administration of justice is a smooth flow of justice that guarantees the protection against disturbances. Where there
is disturbance, there is justice. If there is defect in the administration of justice then again the self-help system will
evolve. There is a contract between state and individual where an individual limits his rights and gives authority to
state to protect his rights, life, property, and safeguards his respect. Law abiders expect that their paid taxes will bring
prosperity for them. Every State guarantees the two functions, i.e., Protection of individuals internally and Protection
or defence of territory. If there is no defence of territory, there is no protection of individuals. Justice has two kinds,
that is, Private and Public.

Private Justice is a kind of justice that is privately settled before going to Court individually or personally. In this justice
legal proceedings are not involved while it depends upon the option of parties. This justice is provided on minor
wrongs.

Public Justice is that which do courts through legal proceedings. This justice is provided in serious wrongs because
these wrongs are big in magnitude but against the whole community. Single person is not enough powerful to punish
the wrongdoer so State takes action to prevent and punish the wrongs.

Objectives of Criminal Justice: Criminal justice is awarding punishment to offenders. It has four common objects
according to Salmond.

1. Deterrent: It means harsh and severe punishment. This administration of justice is warning to potential
perpetrators who are going to commit crimes. It is a bad bargain for the offenders so as to other members of the
society stop to commit crimes. Infliction of punishment serves as a check on others who are evil minded. People
feel it example that it may be inflicted on them, if they act wrong. This is a lesson to other to stop enter in the
crime world.

Objection: There is objection of the deterrent of punishment. First of all when the punishment is inflicted, it is not
only lost its fear but the offender may weigh it before commission of crime. If a dacoity of Rs. 100,000,000/-
amounts 10 years’ rigorous imprisonment, then it is not a bad bargain on the part of wrongdoer. Every offender
thinks before committing crime that laws upto what extent may inflict punishment. If the punishment is tolerated,
he must commit crime. He thinks that this is the maximum action which law can take against me. Feelings of people
are destroyed while affection and care end.

2. Preventive: It means prevent repetitions of the offences by imposition of such penalties as life imprisonment,
death, exile, beheaded, amputation of hands or foot or both etc. Punishment in this sense is preventive. In this
way murderers are hanged for not only to deter others people from meeting the similar fate but it is better that
such offenders should be out of world.

Objection: Young people may commit crime due to lack of knowledge, due to bad companies, provocation, or
instigation. They may be refrained with little reformative actions. Some crimes are committed in a moment of
excitement. Anger and provocation deadens the intellect, and chills senses. First offender may not be preventive.

3. Retributive: It is satisfaction of the people who have revenge against the wrongdoer and want to take law into
their hands. It is much better that emotions must be satisfied. It is recognition of social feelings. In this theory
punishment should not exceed and be inflicted by State rather than individuals. It should be within limits. It is also
called retaliation, i.e., treatment of offender with same evil be inflicted to victim. He is punished in the same
manner or he is subject to the same evil. The principle is “life should go for life, eye for eye, tooth for tooth, hand
for hand, and foot for foot.” This is ideal scheme of criminal justice.

4. Reformative: It objects to reform the criminal as to prevent him from further crimes. Crimes are like diseases. They
should be properly diagnosed and treated psychologically. Punishment should not be regarded to end the criminal
but to end the crime. It is immoral that young offenders are mixed with professional or trained ones. They should
be separated, provided education, good fare, clothes, skill, and training so that they leave the jails as responsible
citizens.

Objections: In this way jail will become luxurious places/homes. And people will be reluctant to receive education
and training. They will prepare to go to jails. It also deadens the economy.

Every human being has rights. State is responsible to protect them. Rights are of two kinds, i.e., Primary and
sanctioning rights.

Primary or basic Rights: These rights are those that are inherited and guaranteed by constitution and every person
enjoys them. This is a bundle of privileges, e.g., a personal right to liberty, safety, speak, writing, reputation,
movement, expression, thoughts, protection of self, marriage, adoption of religion, property, pure environment etc.

Every free person or citizen has these rights. If these rights are infringed or violated then remedy is available to enforce
these rights. Upon violation of basic rights, it gives rise to sanctioning rights. Then my rights are not called primary
rights but sanctioning rights. State come into operation when basic rights of an individual are violated or legal injury
is inflicted.

Two methods are available for sanctioning rights: Specific enforcement and sanctional enforcement.

Specific enforcement: It is enforcement of specific right. For example, A makes an agreement with B, for the sale of a
house for Rs. 500,000/- within six months. A has received Rs. 100,000/- as earnest/token money. At the end of six
months, B comes to A to pay the balance amount to buy that house. A refuses to sell house to B with no reason.
Primary right of B has been violated. A says, he can pay him compensation but B does not agree. B goes to Court and
Specific Relief Act comes into action. This will be called specific enforcement. There may be many reasons not to sell
that house. It may be not possible for A, being contrary to public policy, damaged by earthquake, flood, act of God,
beyond human control etc.

Sanctioning enforcement: It has two kinds, penal and compensation. Penal enforcement is that in which ill will is
involved. Compensation involves something extra on the base of devaluation or inflation.

Restitution: It means undo of undue advantages without extra gain. A has lend Rs. 25,000/- to B for six month. B fails
to repay after six months are passed. It means B is getting undue advantages of debt. A can go to Court for restitution.
In this sense neither compensation nor penalty is inflicted.

Primary Functions of Courts: Administration of justice is the primary function of a law Court in its first sense. They
decide the cases according to the laws. These rules are enforced by the physical force of state in the politically
organized society through the courts. They enforce rights and punish wrongs. In every case plaintiff party claims rights
and defendant defends his position.

Secondary Functions of the Court: In addition to primary functions they perform many of others functions. Social
contract limitizes the people’s rights and gives authority to state for their protection. But actually courts protect these
rights. These are granted to courts besides primary functions to discharge. These functions are delegated by state and
adopted by courts. Secondary functions are four in number as follows:

Petition of Rights: This is function of state to protect rights of people. But there may be situation where a party has
complaint against state for her wrongs. Victim may go to Court of law to invoke his grievances. It is non-sense that he
go to seek toward the agency that is self-wrongdoer. In order to avoid this difficulty, power is given to courts. In a
case in which judge is party, it is not trustworthy that he himself hears the case. It is unethical. If wrong is committed
by state, i.e., public functionaries, officers, servants, agents, etc. State is vicariously liable.

Declaration of Rights: It is determination in uncertainty. In case of violation of right, an individual may ask Court to
clarify the right rather than its enforcement. Courts do not create rights but interpret against created rights.

Administration: In certain cases, courts play their role in administration and management. In case of bankruptcy,
insolvency, liquidation, guardianship of minor etc., courts take control of the institutions, so that rights of the affected
may be protected.

Titles of Rights: Every right has its title. Transfer of property, succession certificate, deceased property, divorce,
marriage, is title. Purchase, gift, theft, inherent are also titles realized by courts.

Sources of law: It means the origin from where law derives or sources in reverse from where law comes. According
to Salmond, there are two types of laws, i.e., formal and material.

Formal means shape. Every law is derived from shape or form. Noting exists without shape. Wood and nails are
material and chair is its shape or form. Material is same in different shapes. It may be found in table, bed, black board
etc. All shapes are different while material is same.

State is a force that validates the enforcement of law. Legislative body of state makes laws being the competitive law
making authority. Law making body means National Assembly, Congress, Senate, Ordinance made by President or
Governor. All have force to make theirs law valid.

Material source has its two kind. One of them is historical and second one is legal source.

Historical sources are those which consist on opinions of sages of ages, thinking of ancient jurist, research work,
writing of scholars, references of old people etc. It is important to mention that these sources lack power of
enforcement. They do not have binding force. They are not valid being law. Courts are at option to refer and adopt
them if seem fit in a particular case.

Legal sources are those which have binding force, creator of rights, applicable to all, generally, either derived from
legislature in shape of statue, from precedent as case law, from custom being customary law, and from agreements
in the form of conventional law.

Legislation is a law made by a competitive law making authority of state having binding force. It is also called
Act of Parliament. Law derived from parliament is called statute. New rules are made through this process.

Precedent is the judge made law in a situation where a case is brought before Court first time to determine its
meaning. Courts lay down laws are called case laws. These laws not only create rights but also applicable to
other people.

Customs are the conduct of people consisting of long standing habits of a majority of people. Practices and
habitual conduct form customary law.

Agreement is a set of promise enforceable at law. Agreement creates laws that are recognized and applied by
courts. When a right of one is infringed, Contract Act comes into force for remedy. Although agreements are
concerned with parties and rest of the world is not bound in case of its breach, but the laws once recognized
are applicable to all. Agreement produces conventional law.

Ultimate legal principles mean the principles that are final and authoritative in law. Every law has its background and
legitimacy. It can be understood with an example. A commits culpable homicide amounting to murder. Where he will
be tried for his act? He will be tried in criminal Court. Why the criminal Court is authority to try criminal’s act? From
where it’s authority is derived? Criminal Procedure Code justifies it. What sentence can be awarded against his offence?
Punishment of murder is death. What is validity of the said sentence? Who is the authority over the punishment?
Pakistan Penal Code (PPC) decides the punishment. Where the authority of Pakistan Penal Code (PPC) lies? Legislature
has enacted the Pakistan Penal Code (PPC). How the legislature is emerged? Constitution is the law that not only forms
the legislature but also gives it rights to make laws. It means constitution is the supreme law of the land. From where
constitution is derived? Constitution does not derive from elsewhere, it is supposed to exist and this is itself ultimate
legal principle of death sentence. When we move from bottom to top, we move towards general principles and it is
called general, while it is called concrete in contrast.

Custom is usage or conduct of people. This is a source of law. This was the only method to regulate the people in
primitive societies. Law was derived from customs. Why people had lot of believes on usage, customs, habits,
conducts etc.? People had belief on it because it was convenient for them to follow to regulate society. Every locality
had their separate laws. Where there sources of income was agriculture, their customs were different than of trade.
There was no legislative authority, no king, and no Court. Only custom was the source of law. This process was slow.
Customs took long time, but it had force because people had belief in it. When the institution of king emerged, there
was no change in customary practices. Customs and religion were the only laws. King and customs were not divergent.
Customs could not taken away.

All customs are to come before Court to become statute. There was an element of error in customs. Customs have
two kind, i.e., legal customs and conventional customs.

Legal customs are those which are operative per se (itself). There is no choice of people or parties to change or cancel
the legal customs.

Conventional customs are the product of agreements made by parties. These agreements are made to regulate
business and trade according to conventional customs. This is upto the choice of parties. They have autonomy and
independence to form contracts.

All the customs are of two types, i.e., expressive and implied. Everything which is laid down, written, spoken etc.
is express custom, while the implied customs are conduct of people, not written elsewhere but only understood.
Child labour is an abuse and does not need to mention in agreements at all.

All the customs are to undergo from tests to be passed for recognition under strict parameters or yardsticks. This is
requirement of law.

1. Reasonableness is the first requirement of any custom. If we have problem for which custom is available to resolve
the matter, must be brought into the notice of Court. Court will check whether it is reasonable to recognize. If it
is just and fair and has conformity the principles of natural justice, Court will recognize it, otherwise Court will
throw away it. That is no law which hurts the public policy and all the customs in contrast to public policy are
thrown away. Burning of woman after the death of her Hindu husband is in contrast to public policy. This custom
could not achieve Court’s recognition on the ground of unreasonableness.

2. It must conform statute law: Competitive authority makes Statutes and customs should must conform it. If it could
not conform to statute or is in contrast will be rejected. If there is tie between custom and statute, statute will be
adopted.

3. It must be observed as law or right: It must be exercised openly and not secretly. People cannot be compelled to
adopt hidden ideas. Prevailing is adopted against concealed one.

4. Immemorial antiquity: It should be very old as no one its narrator can be produced. Memory couldn’t work to
perceive its origin.

5. Continuity: If the immemorial status is discontinued once, cannot be called immemorial because its narrators can
be had easily. Its origin will be beginning of last phase/era.
The word legislation is derived from two Latin words, Legis means law and Latum meaning to make, it means the
making of law.

Legislation can be understood by two senses. First one is called broad while second one is narrow or strict sense.

Narrow or direct sense means law making by the competitive legislative authority. It is general understanding that
legislature is a law making authority, but there are other institutions that have power to enact laws. That is broad
sense of legislature. There are many other authorities that enact laws. These authorities are other than competitive
law making authority.

There are two types of legislatures, i.e., supreme legislation and subordinate legislation.

Supreme legislation is competitive legislative authority which can enact laws and can repeal itself and no other
institute may repeal their laws, but this authority can be annulled the laws of other institutions.

Subordinate legislation can be understood as the law making by the subject and it’s law are not supreme, powers of
law making are delegated by competitive legislative authority, and laws can be repealed by supreme legislature.
Subordinate cannot be annulled the laws of supreme legislature. There are five kinds of subordinate legislation.

1. Colonial: A colony is dominated state by foreign rule. This is subjected state by foreign force. A state that is
dominated irrespective of lingual, social values, religion, culture etc. Period of colonization is gone now but
economic colonization is still there. Colonies have been de-colonized. Colonies had legislature that was not an
independent. Foreign rulers controlled it.

2. Executive is the one of organ among the three of state. Its function is administrative. It has authority to enact law
for self to run its administrative matters or functions. It has limited powers.

3. Judicial legislation means rules of procedure to regulate courts’ matters. These rules are made for their own
guidance.

4. Municipal legislation makes the rule within the limited power given to them. Law of one municipality cannot be
implemented to other municipalities.

5. Autonomous legislation relates to the institutions that are made self-supportive to generate their funds with their
own sources, e.g., Sheikh Zaid Hospital, Punjab University etc.

Why the subordinate legislation is authorized and important:

1. Supreme legislative authority has bulk of work to do. It is very difficult for her to look after every aspect of state.
Workload or burden is reduced with delegation of legislative authority. There are certain technicalities to form
laws for all state.

2. Subordinate legislature has better understanding and the requirements related to her. There are no technicalities
to form laws for them.

Precedent is nearest to legislature. There are six differences between legislation and precedent described as follows:

Legislation Precedent

(1) It has constitutive and abrogation powers. (1) It has constitutive power but not power of
It can create and abolish the law as well. abolishment.
New law is created.

(2) There are three organs of state which


have their own different functions,
legislation makes laws, judiciary (2) All functions unite in judiciary. Laws are
interprets laws, while executive enforce made and applied herself.
laws.

(3) There are two tests from which a statute (3) Only one test is applied. Where it is made,
undergoes, i.e., legislative and Court, there it is applied. Another cannot check
where defects are removed. it.

(4) It is known in advance. They know how (4) No one knows before its creation. It is
the conduct is regulated. Principles of created immediately as required. It is
natural justice are applied. It is known surprising to parties concerned.
before hand.

(5) Most of law making is based on (5) Unnecessary law making is avoided.
imagination, visualizing, and hypothetical. Judge cannot lay down rule until or unless
dispute arises and comes to the Court.

(6) They are brief in length, easily (6) These are made after discussion on facts,
understandable, and approachable to the made by judge, and long in length.
point and readily available for application.

Interpretation: Every law comes in Court for explanation. This explanation follows principles, i.e., grammatical and
logical.

1. Grammatical means words that convey meaning. These should easy to understand and adopt. Same meanings are
attached according to circumstances. There may be more than one meaning.

2. Logical interpretation does not look to the words but the meaning and objective behind the statute. There can be
mistake, error, or doubt in statute. It should neither be inconsistent nor disturb other laws. It patches up defects
according to spirit of law to be interpreted.

Precedent means judicial decision, which creates new rule and quotes as authority for subsequent identical cases. It
is a product of superior Court and has binding force for lower or subordinate courts. Precedent also contains in itself
a principle, the latest principle, which forms authoritative elements. It also provides proof of customs, that it shows
respect for the opinion of one’s judge that the dispute once decided be not subjected to re-arguments in all future
similar cases. Precedent has importance in English System and its colonies, but the rest of the world follows Civil Law
Legal System, in which precedent is not binding authority.

Kinds of Precedent: There are three most important classifications of precedent among the different modes:

1. Declaratory precedents and original precedents:

a. Declaratory precedents are those which exist already and are applied in coming identical cases. They do not
lays down new rule but declare only principle of law, which exists already.

b. An original precedent lays down new rule with new interpretation. It contributes in the development of law.

2. Authoritative precedents and persuasive precedents:

a. Authoritative precedents are those which must be followed even judge feels the principle lays down is correct
or otherwise.

b. Persuasive precedents are those for which courts are not bound to follow. They have no binding authority.
They are purely on the discretion of judges, if they convince, they adopt it, otherwise they are refused.
3. Absolute authority precedents and conditional authority precedents:

a. Precedents of absolute authority are the decisions of superior courts and have binding force regardless of
judges’ opinion them correct or incorrect. Subordinate courts are bound by the decisions of superior courts.

b. Conditional precedents are binding but not absolutely. It is the decision of single bench and binding for lower
Court but not for the similar bench. It is binding with similar condition.

Obiter dicta or dictum: If you look into case law, precedent outcome of which is, you will look arguments of counsels
and then you will look the judgement of Court. Pakistan Legal Decision (PLD) is a book in which all cases are published
with the series of facts, arguments, and then judgement. Facts are the stories of cases, name and addresses of parties,
arguments are the discussions of the counsels, references etc., while judgement is outcome of facts and arguments,
i.e., decision of Court. Obiter dicta is seen into judgement, but not in law. It includes remarks given by judge, his
opinion, adjurations, wisdom, reason, references of other cases irrespective of relevance or irrelevance, law points,
legal problems while judgement, being expert and learned judge. Sometime judge de-tracks from his path due to
discordance of law and fact; this is called obiter dicta. Since obiter dicta are the opinion of expert person, so it is
binding to lower courts. Although it is many times irrelevant to current case, even it is binding. It may be sometime
irrelevant or indirectly relevant. These are not precedents. These are more or less general statements.

Ratio decidendi is contrary to obiter dicta, as it is directly relevant to judgement, so binding for lower courts. It is a
rationale or reason. Every judge gives his judgement because he is bound to do so within the limits of laws. His
judgement must include rationale or reasons. Why he cannot deviate from track? He is bound by law to give arguments
in support of his judgement. It should be hitting directly to facts came with case.

Dissenting note: Where there are more than one judges, come to same judgement with different reasons that is called
dissenting note of judge or judges. There are always more than one ways to reach the conclusion for judgement, and
if two out of five judges give different decision and rest otherwise, it will be regarded as disagreement. Dissenting
opinion must conclude judgement similarly, but there should be different reasons to reach the judgement, and it
constitutes the dissenting opinion. In brief decision is same but reasons are different.

How the precedent is regarded or what are circumstances, which increase its validity or binding force:

1. Unanimous decisions of all judges or jury members increase its regard.

2. It should have the capability to convince other judges to adopt, and if adopted, then it is regarded in other cases.

3. It should be product of eminent judges who are competent in their field, well versed in law, honest, and their
previous decisions are good.

4. It contains learned arguments on preparation before appearing to Court.

5. It should be free from criticism by the same professionals.

6. The level of precedent should be high enough so that parliament recognizes it as Act or statute without making
any change into it.

Circumstances which reduce its importance:

1. This decision is product of majority and not of all judges.

2. Failure to notice contrary decision.

3. If judgement is miss-leaded would not have weight.

4. If judgement is compromised base would destitute from regard.


5. If there is lack of argument and not regarded by bar council or there is no criticism, it would decrease its validity.

6. Hurry denies justice, haste judgement decreases its importance.

7. All cases are reported in Pakistan Legal Decision (PLD), but if reported incorrectly, would be definitely disregarded.

8. Unreasoning of judgement is also a factor, which reduces it validity.

9. If the judgement is according to law but against the public policy would have less importance.

When precedent can be disregarded: A precedent may be disregarded in two cases:

a. When it opposes the well existing rule of law and

b. It hurts to public policy, Saima – Arshad Case is one of the example.

How precedent is disregarded:

a. When the new rule of law lay down, then old one precedent loses completely its force as a source of law.

b. When it is over age and needs and wants of people are changed

Right: An interest recognized and protected by a rule of justice.

One person’s capacity of obliging others to do so or forbear by means not of his own strength but by the strength of
a third party. If such third party is God, the right is divine. If such third party is public generally acting through opinion
the right is moral. If such third party is the state acting directly or indirectly the right is legal.

That power which a man has to make a person or persons do or refrain from doing a certain act or certain acts, so far
as the power arises from society imposing a legal duty upon a person or persons.

Rights are legally protected interests.

A legal right is an interest recognized and protected by a rule of legal justice.

A legal right is nothing but a permission to exercise certain natural powers and upon certain conditions to obtain
protection, restitution, or compensation by the aid of the public force.

Moral rights are moral obligations of others but not enforced by Court. Do not backbiting, do not be jealous are moral
rights. Wife can go to Court of law to enforce maintenance right. It is legal right. Moral right is dealt with natural
justice. When right is violated, wrong is committed which is contrary to right.

Moral wrong is an act, which is morally wrong, because of the fact that it is contrary to the rule of natural justice, like
disobeying one’s elders.

Legal wrong is an act legally wrong and contrary to the rule of legal justice and violation of the law, e.g., non-
performance of the contract.

Legal damage is unauthorized interference to legal right. Actual loss is no more necessary, simply wrong is enough.

Duty is a obligatory act. Right is not without duty. Right and duty both are correlative. There is right where is duty and
vice versa.

Private rights are those which are related to civil wrongs. Public rights are available in world at large.

Essentials of legal rights:


1. Subject of right: Right is not existed without person, or persons, or individuals, or owner.

2. Subject of duty: It means who is under obligation, to perform duty in favour of right.

3. Object of right: It relates to thing or property.

4. Title of right: Every legal right has title.

Contents of right: Something to do or not to do, omission to do act or commission.

Negative duty means thing no to do, e.g., I have duty not to defame anybody. This duty is toward public at large. It
constitutes tort. Positive duty is performance of contract.

Title is a fact, event, circumstances, and reason, which create right.

Classifications of rights according to objectives:

1. Material rights: These are related to tangible things such like table, furniture etc.

2. One’s own person: Negative types of rights like not to kill for life and not to imprison for liberty.

3. Reputation: It is enjoyment of images.

4. Domestic relations: Right of every person’s relative like parents, sister, brother etc.

5. Concerning others rights: These are related to contractual relationships.

6. Immaterial property: New idea of invention, trade mark, goodwill, intellectual’s property rights are immaterial
rights.

7. Services: Master and servant; client in buyer; patient in a doctor etc. are services.

Legal right in wider sense: A legal right in its strict sense is, an interest, which correlates duty, and this interest is
recognized and protected or enforced legally. But legal right in wider sense is “benefit or advantage conferred by law
on a person with or without any duty being imposed in this respect on any other person.” Legal right has three kinds
in its wider sense:

1. Liberties: It is to do something without any duty. He is free to do something provided in law. It carries no
corresponding duty. These are privileges. A person what may do is liberty. He may do or may not do. It may go to
B’s garden being licensee but this license can be cancelled. If I have right to go to B’s garden, then B cannot prevent
me from entry.

2. Power is defined as “an ability conferred upon a person by law and determined by his own will, to determine the
rights, duties, and liabilities or other legal relations of himself or of others.” Power confers ability to effect or
changes others’ status or relation or position. Also there is no corresponding duty. Law assists us in carrying out
powers. Powers are enforced. I have power to marry at my option and Court assists me in carrying out power.
Here power is varied from legal right, in which duty lies as corresponding against right, while power is exercised
without duty.

3. Immunity is an exemption by law from having a legal relations changed by another. It is “privilege or protection
of people, such as foreign diplomats, sovereign, ambassadors etc. They carry counter immunity in their countries.
It was implied desire in older time that messenger apart from hostile relationship will be given respect and contrary
will be declaration of war. Reason behind immunity to foreign delegation is to provide them opportunity to
discharge their duties independently and smoothly. Same immunities they provide in their own countries, i.e., vice
versa. Prime Minister, Governor, President are also immune. King can do no wrong does not mean that he cannot
commit wrong, but he is immune. They have no corresponding duty.

Classification of rights:

According to Salmond, rights are classified in eleven ways:

1. Perfect and Imperfect rights: Perfect rights are those which are recognized and enforced by law while imperfect
rights are those which only have recognition without its enforcement. A debt can be got enforced it is not time
barred, means perfect right. Time barred loan can not be got enforced. It lost its remedy while right is there.
Removal of defect, in imperfect agreements, puts it into perfect right. All public wrongs are not crimes, but all
crimes are public wrongs. Non payment of tax is not a crime because it is contractual breach. Claim against foreign
sovereign in foreign country is an imperfect right for it cannot be enforced in the Court.

2. Positive and negative rights: Positive rights always demand positive duty and negative rights demand negative
duty. Negative rights means not to do something and positive rights to do something. All torts are negative rights,
which demand not to do. Do not defame, do not trespass etc. If I lend some money to A. Money in the pocket of
A is negative right of A, while it is my positive right. Selling of house is negative right for me while receiving of
money is positive right.

3. Rem and Personam rights: Rem rights are those, which are available in public at large while personam rights are
available in individuals. Rem is related to benefit or tort and personam are related to contract, as with not to harm.

4. Proprietary and Personal rights: Proprietary rights can be measured in term of money or monetary. It can be
liquidated. Its conversation into money is easy. Inventory can be converted into cash after selling. Personal rights
have no monetary value. They are related with honor, respect, status, goodwill etc.

Status is not used here in its ordinary meaning. It is used in term of any kind of personal or proprietary legal
conditions.

It signifies the whole position of an individual in the eyes of law, legal rights, duties, and liabilities or other
legal relations.

Personal legal condition means only personal rights and liabilities excluding proprietary relations.

Personal legal capacities and incapacitates mean ability to enter into contract or to get married etc.

Conventional personal rights: Law imposes duties. A man is free to do certain acts, otherwise he is under
liability. Slave and servants have not personal rights. Concept of servant is derived from slavery.

5. Rights in re propria and rights in re aliena: Dominant right of a person over his property is re propria while re
aliena is the right which is not fully right of ownership of the other person. It is just right of passing the way or
easement on other’s property. Right, which is exercised in property is called dominant tenement. Legally burden
created right is sevrient tenement.

Value of servient right becomes low due to continuous interference and this unnecessary interference is
encumbrance on the property. There are four kinds of encumbrance.

a) Lease in one of the example, which renders the property from dominant right to encumbered. Lessor is the
person who leases out his land or property. Person who acquires the dominant right over the property of
lessor is called lessee. Lessor cannot sale the property leased out until the period of lease agreement is over
being the encumbered property due to dominant right of the lessee.

b) Easement is also an instance, which renders the property encumbered due to right of way, and creates
encumbrance on property and decreases its value.
c) Security is a thing or amount, which is used to secure the interest of creditor, i.e., person or institution who
lends money to person called debtor. There are two types of securities.

i) Pledge: It is defined as “The bailment of goods as security for payment of debt or performance of a
promise is called pledge.” It is the mode of taking goods as security. It is occurred when goods or
document is delivered to creditor by customer to be held as security for the repayment of an advance.
Ownership remains with pledger but the pledgee has the possession of property until the advance is
repaid in full. Moveable property can be pledged.

ii) Mortgage is defined as “A mortgage is the transfer of an interest in specific immovable property for the
purpose of securing the payment of money advanced or to be advanced by way of loan and existing or
future debt, or the performance of an engagement which may rise to a pecuniary liability.”

Both pledge and mortgage are made with or without right of sale, conditionally. Both render the property
encumbered and consequently gets low the price.

d) Trust is defined as “Trust is an obligation annexed to the ownership of property and arising out of a confidence
proposed in and accepted by him for the benefit of another, or of another and the owner.” Trust must be
created for lawful purpose. The person who declares the confidence is called the “Author of the Trust”. The
person who accepts the confidence is called the “Trustee”. The person who gets the benefits from the
confidence is called “beneficiary”. The subject matter of the trust is called “Trust Property” or “Trust Money”.
The trust can be created for limited or unlimited period. Since the property of Trust cannot be sold, so it is
called encumbered property until the period of Trust is over.

6. Principal and accessory rights: Principal right is the right, which as such, is available while the supplementary right
is accessory right.

Principal right is main right while accessory right is connected with principal right.

For example, A purchases a plot X which has right of way on Y, attached with X. X is principal right of A, while Y is
accessory right of A.

7. Legal and equitable rights: Legal right is originated and recognized as common law. It is formally created, i.e., by
the sale deed. These are also permanent. Equity rights are created informally. They come from equity courts.

8. Primary and sanctioning rights: Primary rights are fundamental and available to everyone. Right of life, speech,
movement, writing, business, marriage etc. are primary rights. Sanctioning rights are available after the primary
rights are violated or infringed. Law comes into action after primary rights are violated. It is available for those,
primary rights of whom, are violated.

9. Vested and contingent rights: Vested rights are those for which no condition remains to be satisfied. Thus where
A transfers a piece of land to B by deed, a living person, B acquires a vested right. Where a property is given to
minor on the attainment of age of majority, he acquires a contingent right.

10. Public and private rights: Public rights are those in which state as third party is involved and every person of the
society possesses these rights. Violation of public rights starts criminal proceedings. Private rights are civil rights,
created by individuals by contract. State has no involvement in it. Infringement of private rights is proceeded in
civil courts.

11. Municipal and international rights: Municipal courts within country provide Municipal rights and international
rights are created by states bilaterally for the relationship. They regulate or govern states’ affairs.

Ownership is a important concept in English Jurisprudence. It is a relation between a person and vested right of any
type. It does not matter that this right is material or immaterial, tangible or intangible. Ownership is classified in five
categories as follows:
1. Corporeal and incorporeal ownership: Corporeal ownership is refereed to tangible things, such as, land, building,
book, fan, coin, table etc. These are the things, which can be seen, touched, and felt either by the five senses.
Incorporeal ownership is known as intangible ownership on intangible things, i.e., things that cannot be seen or
touched. It includes air, light, good will, intellectual property, copyright, trademark, and easement etc.

Illustration: A person has two properties. One of them is leased and second one is mortgaged. In both cases
possession has been transferred and rights of other have been created but the right of ownership still stands.

2. Sole and co-ownership: Sole ownership is the ownership in which rights of ownership are vest to single person. If
these rights are vested to more than one person jointly, it is co-ownership.

Co-ownership is of two types, i.e., common ownership and joint ownership.

In common ownership more than one persons hold undivided possession. On the death of one of them ownership
does not descends to co-owner or survivor but to his legal heirs.

In joint ownership, on the death of one joint owner, his part of ownership is vested to survivors. Survivor becomes
sole owner.

3. Trust and beneficial ownership: Trust ownership is duplicate ownership. Two people own it at the same time.
Trustee is under obligation to administer or manage or looks after the trust. Trustee uses the ownership for the
benefit of beneficiaries. Ownership of trust is called trust ownership while the ownership of beneficiary is called
beneficial ownership. A trustee is nominal while beneficiary is real owner.

The author of trust creates trust. Author of trust appoints trustees but he is no more responsible for the act of
beneficiaries or trustees as in master and servant relationship, where master is vicariously responsible for the tort
of his servant. Principal employs an agent and accepts his responsibilities but in trust, author is no more
responsible.

4. Legal and equitable ownership: Legal ownership is outcome of legal justice or common law while equitable
ownership comes from equity courts who acts on the principles of natural justice. The basic difference in two is
the origin form where they are derived.

5. Vested and contingent ownership: Vested ownership arises when essential conditions to vest the property have
happened and owner’s right is already perfect. All the events, which are necessary, are completed make vested
ownership. It is contingent ownership when necessary events to vest property are to be happened in future time.
Ownership remains incomplete until the specific event is happened.

There are subsequent and precedent conditions that render the perfect ownership imperfect and vice versa.

A, makes a will in favor of his wife that she will be the sole owner or she will inherit after his death provided not
remarried. If she remarries then right will be vested to his two or more chidden. Here in life of A, the right of wife
remains incomplete. Since her right on A’s ownership comes after his death, so she is subject of conditions
subsequent being incomplete right or in choate. Upon death of her husband, her right becomes complete or
vested right thus condition precedent applies. Her children remain subjects of condition subsequent because
they will become owners later. In case she remarries, her right becomes incomplete and condition
subsequent applies and her children will be vested owner being the application of condition precedent because
their right over the property of father becomes complete and complete is called precedent which make imperfect
right to perfect.

Possession is very difficult to define in English Jurisprudence. But it very important topic. Human life and society would
become impossible without retention and consumption of material and non-material things. Food, clothes, tools, etc.
are essential items to use. We get hold over the first to claim possession. It is not just acquisition of things but it is
continuing claim for use of them. It may be legal or illegal.
How the possession is acquired: Following are some points which can be referred to acquire or loss the ownership:

1. Possession itself is evidence being owner. Pen in my hand is evidence being owner, regardless legally or illegally.

2. The person in possession is presumed to be the owner. A house in my possession is presumed my ownership
along-with all the things lying in it.

3. Anything can be held wrongfully or by fraud.

4. Long possession of twelve years confers the title in property, which may belong to others. When a title is
conferred to another even without ownership is acquisition of possession.

Possession is defined as “it is continuing exercise of a claim to the exclusive use of it.” It does not cover incorporeal
possession. Possession is different from ownership but normally possession and ownership lie together.

How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general
mode of acquisition of possession.

Possession is of two kinds, i.e., possession in fact or de facto and possession in law or de jure. Some discordance in
law and fact occurs. Law something presumes which may not actually exist. Normally possession in law and possession
in fact exist in a person but it may vary.

1. Possession in fact or de facto: It means the possession, which physically exists in term of control over it. It can be
seen landlord and tenant where tenant holds possession of house physically or de facto, but it is not possession
in law or de jure.

2. Possession in law or de jure: It is the possession which, in the eyes of law, exists. It may exclude physical control
over it. It is also called constructive possession. A servant may possess car, but in the eyes of law, it is possession
of master. Possession of bailor through bailee is de jure possession on the part of bailor.

Corporeal and incorporeal possession: Corporeal possession is the possession of a material or tangible objects, thus
it is continuing exercise of a claim on the use of material or tangible object.

Incorporeal possession is the possession of a non-material or intangible object. Thus it is continuing exercise of a claim
on the use of non-material or intangible object.

There are two essential elements of possession, i.e., animus and corpus.

1. Animus is the intent or mental condition or activity or claim of exclusive use of the thing possessed. Cloth at tailor’s
shop is in possession of tailor but he may not intend to exclude the owner or subject of the owner.

Animus may be legal or illegal. The only test is whether the man in possession intends to exclude others or not.
General intent is enough to constitute possession.

All books in library, all fishes in net, all sheep in flock, are subject of intent whether in knowledge or not, thus
possession completes.

2. Corpus is second element, which is essential and completes possession. It is objective part of possession. Both
animus and corpus are necessary for possession.

The intent to exclude to others from interfering with the object possessed must be evidenced by physical facts. If
there is no action then no intention is expressed. Pen in my pocket, ring on my finger, or goods in my home, are corpus
of my possession of each of these.

Completion of possession:
1. Power of possession: It shows possession. Books or watch in my hand excludes others thus possession is
complete. Things under lock and key are also possession.

2. Presence of possession: A person may be feeble and unable to exclude other but his presence may command
respect. Cash in the hand of child is possession.

3. Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is possession.

4. Continuing use: I use pen continuously, read book continuously, use of transport continuously, is possession.

5. Customs: In some localities people are not allowed to interfere to other things even presence is not there, like
in Saudi Arabia where people leave their shops remain open and go to offer prayer and no interference is allowed.
It is possession even in absence.

6. Respect of rightful claim: In law-abiding societies people do not interfere in the right of other and rightful claim
generally obtain security from general acquisition.

Res nullius means ownerless things or objects. Terra nullius means no man land. A person, who finds lost goods, while
passing on road, e.g., a wallet, being first finder, he has good title against the whole world except the true owner,
even if it is found on another person property without committing trespass. This is the rule. Any other person who
looks at finder of lost goods cannot demand his share from lost goods.

If a customer finds a lost wallet while shopping in a store which is not identifiable, can retain till reasonable time to
wait its true owner. He is obliged to bring this matter into the knowledge of shopkeeper and give him his own address.
If true owner did not come till reasonable time, he will hold title.

There are many other things which have no owner, i.e., gems stone, metal, gold, silver, natural resources, bird, animal,
provided these things are found in way, without committing trespass. Precious stone cannot be held from the area
specified by government. Bird or fish cannot be hunt from the area of property holder. Things cannot be hold from
others house. Bird cannot be hunt, which is prohibited.

There are three exceptions in this rule:

1. Owner of the property on which the thing is found is in possession of the thing itself as well as property, or

2. If the finder is servant or agent then master or principal has title, or

3. Wrongful act does not constitute possession. Trespass is not allowed.

Natural resources in economic zone like water, sea, land etc. belong to government. If treasure comes out from others
property will also belong to government.

Kinds of corporeal possession: Immediate possession means direct or proximate possession without agency and
mediates possession means in between or remote possession. It is acquired with agency.

A being a servant holds something for his master B. A has immediate possession while possession of B is
mediate.

Where both claim possession, e.g., tenant and landlord.

In case of bailment, pledge or mortgage, both have claim.

A has exclusive right of possession on his land while right of way over his land is concurrent.

Acquisition of possession: Possession is acquired when both the animus and corpus are acquired:
1. By taking: When someone takes anything, he has possession. It may either be rightful or wrongful possession.

2. By delivery: The thing is acquired by delivery with consents of previous possessor.

Actual delivery is a kind in which goods are delivered while constructive delivery is the rental or sold goods.

Personality: In an ordinary meaning any living human being either male or female is person. In old Roman law slaves
were not supposed to be person because they were not possessed rights.

In legal term a being who is capable to possess rights and obligation and liabilities is person. All human being are
person. Any being whom law regards as capable of rights and duties.

Kinds of persons: There are two kinds of person in law, i.e., natural persons and legal person.

Natural persons: All the human beings are natural persons. The entire male and female are persons. All the living
beings which are recognized as person by state, they are persons in law and persons in fact.

Legal persons are created artificially and law regards them as legal person. They are persons only in the eyes of law.
They are also created by legal fiction so called as fictitious also. They are also called juridical, conventional, imaginary,
and they have rights and obligations as natural person. They can sue and be sued.

Animals: They are no persons because they do not possess rights and obligations. Some people say that they are
persons because law prohibits cruelty to them. They should be treated sympathetically and kindly. But this is our
cultural heritage and the duty of society and not the duty of animals. Rights always correlate with duties. Since they
do not have any duty so no rights and are not persons although in ancient Roman law a rooster was prosecuted and
punished but in modern law master of animals can be sued and punished and not the animals itself.

Dead human beings: They cease their rights and obligation at the moment they go away from this world and their
connection is cut down. They are immune from duties and not subject of rights. Law recognize the compliance of will,
burial ceremony, no defamation, no desecration of graves, but despite of this fact they are not persons and these
duties lie to their legal heirs or living society members.

Statues of unborn babies: In civil law they can sue after they are born through their next friends or at attaining the
age of majority. A child in womb has certain rights and inherits property. These all things are subject to his living birth.

Following are important points:

1. He can claim damages after birth, for the injuries he received before birth.

2. He can claim compensation for the death of his father or mother in fatal accidents.

3. He inherits even his father is died before his birth. He is natural person even his birth is only for a moment.

4. A woman cannot be punished after conviction if she is pregnant, till birth of baby.

Legal person is created by legal fiction thus called fictitious and has the rights and obligations as natural person.

Kinds of legal persons: They are three in number as follows:

1. Institutions are not personified or group of persons but institutions itself are legal persons, such as, mosque,
library, hospital etc.

2. Corporations are a group or series of persons and natural persons are its members.
3. Funds or estates are used for specific purpose. Property or fund of deceased person for trust or charity is kind of
legal person.

Corporation is of two kinds, i.e., corporation aggregate and corporation sole.

1. Corporation aggregate is a group or collection of persons who become joint to accomplish a task. Even all
members of this corporation die, it will remain live and continue until death by law. Common example of this
corporation is Municipal Corporation or registered company.

2. Corporation sole is series of successive persons or individuals. It consists of only one person at a time like king,
postmaster general, Assistant Commissioner, or Prime Minister. When a person dies, second one comes, fills in
vacancy and performs functions. After death of office holder, for the time being, office becomes dormant or
inactive or goes in sleeping position and as well as other person fills in the position, it become active.

Difference between corporation and firm: A corporation has different features than of a firm, explained in the
following manners:

Corporation Firm

1. A corporation is a legal person apart from 1. Firm is not a legal person.


its members.

2. Property of corporation and persons is 2. Firm does not possess property. Property
separate and different. of the firm is of its members.

3. Bankruptcy lies in corporation. 3. Members become bankrupt.

4. It can enter into contract with others. 4. Firm has not ability to do so.

5. May exist with one member or even 5. Single person does not form firm. Firm
survive as a sole member. dies as soon as its member dies.

6. It is a permanent legal entity. 6. There is not permanence in firm.

7. Losses bearence upto the extent of share. 7. Losses are recovered from personal
property.

8. Profit or losses are proportioning divided. 8. Profit and losses are unlimited or equal.

9. Can sue and be sued. 9. Cannot sue.

Difference between corporation and natural person:

1. Corporation comes into existence in following three ways:

a) By filing an application of incorporation in the office of Registrar of Joint Stock Companies.

b) By orders of the state, special Act of Parliament or by special authorization. For example WAPDA, WASA etc.

c) By prescription treated as corporation from time immemorial like East India Company.

Natural person is born by natural process and not by legal process.

2. Corporation can die only through legal process while natural person dies through natural process.
3. Natural person acts himself whereas corporation acts through its agents.

4. Capacity of corporation is limited because of memorandum of association but in case of natural person there is no
such restrictions.

Matters of Corporation are run under the constitution of corporation, which is called Articles & Memorandum of
Association. It is a document, which regulates corporate affairs. Function beyond it is called ultra vires. Directors have
to work within four-walls/limits prescribed. Corporation is liable in civil wrongs and in criminal offences as well, where
element of mens rea is not required. Misfeasance is a duty performed improperly. During the road construction it is
duty of corporation to provide iron fencing and sufficient light at site to prevent any possible loss so that no accident
may occur. It is also case of negligence. Where duty neither imposed nor performed at all that is
called nonfeasance. For example, no sign or caution is placed and marked at broken bridge. Where duty is not imposed
but work is done without authority is called malfeasance. For instance, road construction is not allowed at certain
place but it is so done. Why is corporation is created? There are many-fold advantages of creation of corporation. In
the modern age trade, business, and commerce has grown up. Large-scale business cannot take place unless
corporation is created. Corporation attracts capital and reduces liability. So corporation is advisable even on small
scale.

State is also a corporation being the group of persons who are public functionaries. Its agents are natural persons.
State itself is legal person. Citizens of state are its members.

Title is a link between a person and an object to establish ownership of property. A title is the de facto antecedent of
which the right is the de jure consequent. Right of possession on ownership comes in term of de facto first and later
de jure. For example, I have a watch on my hand. How it can be said that it is my, or I have title over it. I have either
purchased it, or someone has gifted me, or I have inherited it from elsewhere. Title is created even of stolen objects.
It is right of ownership in fact and in law over property.

Titles have two kinds as follows:

Titles

Investitive Divestitive

Original Derivative Alienative Extinctive

1. Investitive facts create rights. This right is created first time on the objects, which are ownerless. When I catch fish
it is my original title and if I purchase it from elsewhere then it is called derivative title. Derivative right is second
right, which is created after gone away of original right.

2. Divestitive facts are those, which loss or keep away of right is termed as divestitive facts.

3. Alienative right is right which is separated or transferable.

4. Extinctive right is right which is kept away or destroyed.

Agreement enforceable at law is contract. They are of two types, i.e., voluntary and involuntary.

Voluntary agreements are acts of party in term of contracts and involuntary agreements are acts of law like
devolution of property or enforcement of will.

Acts of law are the creation, alienation, or extinction of rights by operation of law without reference of the will to the
parties.
Acts in law are really acts of the parties done voluntarily. Such acts are recognized as creating, transferring, or
extinguishing rights, but they express the will of the parties. They are most common and important.

Acts in law

Unilateral Bilateral

Contracts

Grants

Assignment

Release

1. Unilateral Acts are those in which will of only one party is operative without consents of other persons who really
effect, e.g., will is formed by single person which effect his legal heirs. Law protects one person.

2. Bilateral Acts or Agreements are those which involve the will of two or more parties

i) Contracts create rights and obligations between the parties voluntarily.

ii) Grants are agreements by, which right other than contractual rights are created, e.g., lease, mortgage,
change, licence etc.

iii) Those agreements, which transfer rights, are called assignments. Selling and buying is assignment.

iv) Release is discharge of obligation or rights are extinguished.

According to legal effect agreements are of two types, i.e., valid and invalid agreements.

1. Valid agreements are those, which are enforceable at law and law protects rights of the parties.

2. Invalid agreements are not enforceable at law being defective. They are further sub divided into two kinds:

a) Void agreements are those which are invalid right from their beginning. For example agreement of theft,
distribution of stolen property etc.

b) Void-able agreements are those which due to any defect void-able at the option of one party. Its operation is
conditional. It may be ratified and becomes valid agreements.

Causes of the invalidity of agreements:

1. Incapacity: Minor and person of unsound mind are not capable to enter in the agreements.

2. Informality: Where law requires to fulfill some formalities and those formalities are not fulfilled, e.g., own the
property and not registered.

3. Illegality: Agreement containing to civil or criminal wrongs is void.

4. Mistake of fact: Where both parties commit mistake of fact, e.g., selling of house different in the mind of seller
and different in the mind of buyer.
5. Coercion: Absence of free consent renders an agreement invalid. It must not be obtained by means of compulsion,
undue influence, fraud, and misrepresentation.

6. Consideration: It is the price and essential part of the agreement. Its presence is very necessary.

Substantive Civil Law


or
Corpus Juris (entire law of land)

Public Law Private Law

Civil Criminal
Constitution Administrative Substantive Criminal
Criminal Procedure
Law Law

Substantive Civil Law Civil Procedure

Law of Property Law of Obligation Law of States

Corporeal Incorporeal

Encumbrance Over immaterial things

Material Things Immaterial Things

1. Public Law is related to rules of structures, powers, rights, and activities of the state.

2. Private Law deals with relationship of private person with private person and private person with state. Non-
payment of tax for the purpose of bridge or road construction is civil wrong and not crime.

3. Constitutional Law is a body of principles that regulate the organs of the government, their rights, obligations,
and objectives etc.

4. Administrative Law deals with day-to-day activities of officials in relation to the members of the public.

5. Civil Law concerns with the enforcement of rights. Both parties are private.

6. Criminal Law deals with the punishments of wrongs. This law may be regarded as public law because crimes are
taken as offences against whole society. But it is a branch of private law. Parties are private person and state.

7. Substantive Civil Law concerns with property and it rights, obligations, and personal rights. It is found in tort and
contract. It is an aim.

8. Civil Procedure means how to achieve aim. It is found in Civil Procedure Code (CPC).

9. Substantive Criminal Law is related with lodging of First Information Report (FIR) or charges and punishments. It
is found in Pakistan Penal Code (PPC).
10. Criminal Procedure deals with how to Pakistan Penal Code (PPC) is proceeded. How after First Information Report
(FIR), proceedings are done. It is found in (CrPC).

11. Law of Property is concerned with rights of ownership. Property is described as any object, which is owned.

(a) In widest meaning own the thing and all kinds of legal rights is property.

(b) In narrow sense all proprietary rights, which can be weighted and measured in monetary value, excluding
personal rights are property.

(c) In narrower sense proprietary rights in rem, which are available against whole society, is property.

(d) In narrowest sense corporeal property, means the right of ownership over material things is property.

12. Law of Obligations deals with the proprietary rights in personam, available against certain person or persons.

13. Law of States deals with personal rights.

14. Corporeal Property is the right of ownership in a material, physical, or tangible things.

15. Moveable Property means property, which can be moved from one place to another like fan, book, table etc.

16. Immovable Property means property which is attached or fixed with earth and can not be moved from one place
to another until it is detached from the earth.

17. Incorporeal Property is non-physical, intangible, or immaterial thing.

18. Encumbrances means any property upon which burden of liability has been created like tax etc.

Rights in re aliena are right of limited use of other’s property and right in re proparia is a dominant right over own
property.

Incorporeal intellectuals’ property is a product or outcome of one’s intellect. It involves for 14 years so that no one
other may reproduce such innovations.

Literacy copyrights is registration of books of prose and poetry. Artistic Patent rights are registered on tune of music
and drama. Commercial goodwill is also incorporeal property attached with business. When business is sold, also
rights of goodwill go with business. Trademark is insignia or monogram, which is recognition of particular
product. Lease is a separation of ownership and possession. Possession goes in renting out of property for specific
time period while ownership rests. Servitude is easement or limited use of other’s property in term of right of way,
water flow, light, air, grazing of cattle, fishing, hunting etc. Real appurtenant is something attached with property like
supporting wall. Realty is property and realtors are real estate agents or property agent. Sometime right of way is
given to particular number of persons like family members and their servants. When property is sold out, right of way
ends. Right of way, which is attached with property, transfers when property is sold. Positive right means to do
something like right of way. Negative right means not to do something like do not construct wall so that air and light
may reach to property. Servitude in gross means right of way for public at large. This way does not go at any particular
property. Public servitude is right of way for public in general, while private servitude is right of way for determinant
number of persons. Servitude is normally used in Pakistan for easement but there is slight difference in England.
Servitude has two kinds, i.e., easement and profit apprendre, profit which comes from property like rent, fruit, fishing
etc.

Security is assurance of repayment of debt. In pledge or lien, possession goes as security. Right of distress seizure is
retention of cattle that come in property by trespassing, until their master pays compensation. Power of sale is right
to sell cattle upon default of payment of compensation. Forfeiture is acquisition of property in commission of
crimes. Charges is amount incurred in disposal of perishable items, is recoverable.
Modes of acquisition of property:

1. Possession: Physical possession is acceptable claim of the acquisition of property. This possession may be right
and wrong. Possession of a stolen thing is considered a property unless contrary is proved. Possession of first
finder over the lost goods is good right of property against the whole world except the true owner.

2. Prescription: Easement is a right acquired by the operation/lapse of time for twenty years. This is right of limited
use of other’s property.

3. Agreement: By way of agreement anything can be done. Property can be acquired and lost. Business may be
started. Right and obligations may be created.

4. Inheritance: By way of inheritance property can be acquired. In a will, limitation of time, amount, and purpose
should be taken into consideration.

Obligation is defined as duty in general meaning. In legal meaning it means duty which corresponds to such a right. It
is proprietary right in personam, i.e., for determinant number of persons and not in rem, i.e., against whole world.

1. Several obligations: Each one is responsible for his act. A has taken loan from B, C has taken from D, and E has
taken from F. If A commits breach, B can sue A and not C & E.

2. Joint obligation: Where there is more than one joint party and each one is liable for other’s act. For example, there
are four joint parties in a contract like A, B, C, & D. E can sue A to recover his loan and A is liable to pay back loan.
After payment of loan, A can recover share of B, C, & D from them.

3. Joint and several obligation: Some time law regard obligation, some of people as several and the rest as joint. It
is provided in contract whether which obligation will be joint and several.

Sources of obligation: There are four sources of obligation given below:

1. Contractual: This sort of obligation is created through agreement enforceable at law like sale, purchase, and lease
agreements etc.

2. Tort: Tort is civil wrong remedy of which is damages and is obligation of tort-feasor.

3. Quasi-contractual obligation: There are certain obligations, which are not contractual in the sense of agreements,
but law treats them as if they were. They are implied contract.

4. In-nominate: It includes trustees obligation toward their beneficiaries.

Law of procedure: It is rules and regulations governing the institutions and prosecution of civil and criminal
proceedings.

Substantive Law Procedural Law

1. It talks about right and obligations. 1. It deals with procedure as to how rights
are enforces.

2. It is a subject matter of law and litigation. 2. It relates to procedure of litigation.

3. It is law outside the Court. 3. It is law inside of the Court.

4. It is theoretically law written in the books. 4. It is law in action in the courts. It is


practical.
5. It deals with ends, objects, and targets. 5. It is instrument or mean or way or method
to achieve ends or objectives or targets.

Elements of procedure are five in number:

1. Pleadings: It includes plaint and written statement of the parties put before the Court containing subject matter
of the case. Plaint includes material facts, date, time, subject matter, and put by plaintiff. Written statement is
admission or denial of the plaint.

2. Summons: This is attendance in the Court. Court issues writ to defendant to answer the claims or allegations
imposed by plaintiff. This is notice according to the principles of natural justice.

3. Proof: This is a process in which parties supply data to Court to arrive at conclusion on the matter of dispute in
case. It may be oral or documentary.

4. Judgement: It is the conclusion and decision of Court against the several points between the parties.

5. Execution: It is enforcement of decision with the help of judicial force.

Kinds of evidence: Evidence is any fact, which possesses probative force.

1. Judicial and extra-judicial evidence: Judicial evidence is that which is produced to Court containing personal
knowledge or observation whereas extra-judicial evidence is which comes to Court by intermediaries.

2. Real and personal evidence: Personal evidence is testimony. It is statement of witness. Real is oral or written
statement.

3. Primary and secondary evidence: Primary evidence is requirement and demand of Court in term of document or
deed in original while secondary evidence is inferior evidence includes photocopy or certified true copy.

4. Direct and circumstantial evidence: Eyewitnesses give direct evidence while circumstantial evidence is show of
effects proved through circumstances.

Privilege communication: Evidence which hurts the public policy or communication, which has been made between
the couples, or professionals like between doctor and patient; husband and wife; and lawyer and client.

Parties can not be pressurized or compelled to give evidence. There is no value of confession until it is made before
competent judicial authority. Confession other than authorized officer like before police officer or any other person is
not acceptable as evidence in Court. One cannot be compelled to give evidence against self.

Valuation of evidence: In order to streamline the value of evidence, it is necessary to measure the weight and kind of
evidence. This is the rigid method applied to make the system uniform in the administration of justice. These rules are
applied in every legal system. These are five in number.

1. Conclusive proof: If one thing is proved in Court, the other thing will automatically be concluded from one proof.
It is most authentic evidence in the administration of justice. If the marriage between an adult male and female is
proved, will definitely prove the legitimacy of their children.

2. Presumptive proof: In the absence of reliable source of information, law establishes some presumptions, in order
to conclude dispute under litigation. For example, if a husband has not been heard for a period of seven years, by
his wife, parents, friends, by any sort of information like phone, letter etc., he is presumed no more alive, and
woman can acquire decree of dissolution of marriage. This is presumption of Islamic law.
3. Insufficient evidence: Where law specifically prescribe the certain quantity of evidence, nothing short of that is
regarded as adequate for proof. For example, in Hudood crimes, certain quantity of proof is required to constitute
an offence, and short will not be enough proof, even short are credible enough.

4. Exclusive evidence: Where law demands a particular type of evidence, non-other, however credible is admissible
as evidence.

5. No evidence: Where there is hearsay evidence on the base of notion are ruled out as unreliable by the law.
Law of Contract
Law: Law is the set of principles, rules and regulations, statutory orders, which is applicable to the members of the
society. Law gives rights and imposes duties to everyone. No one can deprive others from their rights. Everyone have
the right of life.

Sovereignty: Superman or Supreme Power or Blind Force or Historical Necessity, who is not subject to people but
people are subject to him, is called Sovereignty.

In Islam only Allah Almighty is the Sovereign Power. The entire rest world accepts the Parliament as Sovereign Power.

Society is composed of people and determinant of law of rights and duties. All people have to respect and fulfill law.
Law is concerned with people and property.

There are many conflicts and disputes among the people. Law of contract relates with the matters of two or more
than two people with each other.

Muslim and Non-Muslim countries have same systems, but they have not the same law. Every offence has some
ingredients.

Private law does not applicable until it is accepted while public law is enforceable to the society as a whole. Act is
collection of law, rules and regulations, statutory orders.

There are many our daily routine different activities, i.e., repairing of motor cycle, borrowing something, traveling,
purchase of rice etc. Expressive form: If you say something very clear and openly.

Intention and act form crime. Intention is determined by acts he performs. Contract is created with the intention of
legal rights and liabilities. Act is determined by the acts. Contract is a promise or set of promises that have
consideration. Contract should fulfill law’s requirements. Selling of book is a contract. No one is bound to make
contract in written form. Valid contract is that which fulfills all the necessary legal requirements. Contract contains
Offer and Acceptance and Consideration. Consideration does mean something that is exchange or return. In selling of
book consideration is money which is given in response of selling of book. Also interest is consideration.

All contacts are agreements but all agreements are not contracts. Agreement, which is enforceable by law, is contract.

Contract is proposal to proposee with consideration. Contract should be of free consents of the parties including
capacity of contract, and law-full contract. How the consideration is un-law-full? Selling of book on the price of heroin
or any other prohibited thing. Intention is a state of mind, which determine something. Contract must include
capability, peaceful purpose, lawful, consideration, and invitation. Requirement of contract must be fulfilled. Implied
form of contract is that is known or recognized by the conduct or behavior.

Over-hurt of acceptance is not acceptance in case of proposal is toward a specific person is made. In some cases
invitation to world at large is not invitation but proposal. If something is lost, one who will bring the lost thing will be
considered proposee. It is not invitation. One who performs condition is called proposee. Performance is acceptance.
Upon receiving the first information, proposal becomes invoked. One who inform or obtain first with the information
of invitation, only he will form the contract. Proposal can be revoked.

How and when the acceptance can be revoked? Proposal can be revoked before acceptance is made. Communication
must be made for the revocation of the acceptance.

1. If the specific time is given and acceptance is not made then it stands revoked.

2. If the specific method is given in offer then it should be followed.


3. After reasonable time it can be revoked.

4. Specific amount till due date should must be deposited.

5. Upon death or insanity (unsound mind) it is revoked.

6. Upon counter offer it may be revoked. Death or unsoudness, should must be communicated to the Proposee then
revocation occurs otherwise it stands valid.

Communication is compulsory to Proposee to form a contract. Acceptance also must be communicated to Proposer.
Proposee can not revoke his acceptance after it is made and communicated but there is slot of receiving of acceptance
but before the acceptance is reached to Proposer he can revoke it by using the faster means of communication and it
will stands revoke. Law provides an opportunity to revoke acceptance. If the acceptance is sent by post, then
acceptance has been completed on the part of Proposee but not on the part of Propser. Contract cannot be formed
between Husband and Wife. But there is a promise. It is just moral obligation but not legal obligation. If there is not
legal agreement there is not contract. Consideration is integral part of contract. Consideration/interest is a price of
contract. S. 25 of Contract Act, 1872, provides certain exception whether contract can be formed without
consideration.

1. Natural love and affection: Within relationship something can be gifted without consideration. It should be within
close relatives. This gift may contain gift on birthday etc.

2. Voluntarily: Transfer of gift or land to others without consideration on the basis of any help, assistance, or service
which has been rendered to Promisor without any return. It should contain some ingredients, i.e., help has been
rendered in past, it was rendered in past without return, and there was not legally obligation to render service.
Suppose a man is not legally bound to save a life of the person who is being beaten/pounded. If he helps him, he
may form the contract without consideration, but in other case where pounded person has a personal or official
guard, he may not form contract because he was legally bound to rescue him and it was his duty.

3. Where there is time barred receivable loan: Suppose A had granted loan of Rs. 100 to B, and B fails to repay the
amount within the stipulated time period. A, forms a contract with B to pay this amount within fixed time, this
contract will be called Contract without consideration.

4. S. 127 – Contracts without consideration u/s 25 are void, but where benefit or interest of the principal debtor is
sufficient consideration on the part of surety, for the purpose of guarantee.

5. Consideration for the creation of an agency is immaterial.

All contracts should be in written form and be registered.

Agreements, which are enforceable at law, are as follows:

1. Free consents.
2. Purpose is lawful.
3. Lawful consideration.
4. Competent of contract. Who is not competent? All are competent except Minor, Unsound Mind, and Disqualified
by the law. Insolvent or Bankrupt are deprived by the law to form contract.

Unsound mind: At the material time during the formation of agreement he was able to understand the contents of
agreement, so he is considered of sound mind and his contract will be valid and enforceable at law.

A person who is of unsound mind may form contract while he is in the state of sound mind. When he is occasionally
of unsound mind, he may not make a contract when he is of unsound mind. During the state of unsound mind, other
people will fulfill the terms of the contract of unsound mind and if the other people are not available then Court of
justice will act as guardian of the unsound mind.
Age of Majority: As per Majority Act, 1875 age of majority is 18 years and in case of Ward the age will be 21 years.

Void contract is that which is not enforceable at law. There are two categories of void contracts Ab initio: Those that
are void right from the time of formation or by the change of law of government and Void-able Contracts which have
option to void. All contracts in which consent of a party are not free. If the delivery of books is not made within the
stipulated time period, it becomes void-able contract except buyer accepts it. Void contracts are those that are
bastered since their birth while void-able contracts are those, which can be, proven bastered after they are born.

All the contracts made in the interest of minor will be enforceable at law, and contracts made by minor which damage
or injure the interest or benefit of the minor will be void. Simply on the ground of the minority contracts cannot be
void.

Free Consents: Word of intention is not used in S. 10 of The Contract Act, 1872, but the word consent is equivalent to
intention. Consents form law. They create rights and obligation. Consents should be free and independently. This is
important on the part of valid contract. If the consents are obtained without free environment, they are not supposed
free and do not form a contract. All consents should be free. It seems not good to mention all the consents, which are
not free, and Contract Act mentions only them. Contrary to capacity of minority age in which Contract Act has
mentioned only what the age of majority, and simply mentioned the age of majority considering the capacity of
contract, Contract Act does not mentioned the list of free consents but which are not free. So we shall discuss the
consents which are not free.

Void-able Contracts:

1. Consents, which are obtained under coercion defined in S. 15 as the consents obtained without willingness, on gun
point, forcefully, by the threat of evil consequences, unlawfully commission of acts, are coercion. Abuses, lowing,
beating, and all the acts forbidden by the Pakistan Penal Code are coercion.

Two Pakistanis form a contract for the purchase of a piece of land situated in Lahore with no free consents in Iraq.
Both reaches Lahore and buyer insist the compliance of the contract and the seller refuses to enforce the contract
claiming the consents under coercion are void-able contract.

2. Undue influence defined in S. 16 as the dominating role of a party over other and uses the position to obtain an
unfair advantage over the other. Relationship of two in which one is superior and second one is subordinate, i.e.,
employer and employee, master and servant, father and issues. Orders that are according to law passed by the
superior to subordinate are not under influence. But the orders that are not according to law are undue influence.
If a Pir orders to his disciple (Murid) to give his land to him is called dominating authority. Person should be in
position who can dominate others and obtain advantages which is undue. Where a person holds an authority or
making a contract with a person whose mental capacity temporarily or permanently affected by the age factor,
illness, and mental or bodily distress.

A person who is affected with a disease is forced by a doctor to enter into a contract for the medical treatment
on unreasonable sum of amount for his professional services. Doctor employs undue influence.

Dominating role of a party also constitutes a contract under influence.

Also it is a kind in which advantage is obtained that is undue. If the higher authority by using influence pays market
price to purchase of a piece of land from subordinate, will not be considered an undue influence. Who has
onus/burden to prove whether undue influence has used. As a general matter of principle onus of proof lies on
the person who alleges or claims the undue influence, whose consents are taken by dominating party, and who
alleges the existence or non-existence of the agreement. But S. 16, which has special provision to establish
evidence, provides, that onus of proof lies on the person who takes consents with undue influence. He has to
prove that he has not exercised the undue influence. Special law prevails on general law. Special laws are preferred
on general law and exclude the law of evidence. Special law is applicable on coercion and undue influence cases
only. General law will deal all the rest cases.
3. Fraud: Where there consents are obtained fraudulently, that is not contract being no free consents. A & B enter
into contract while A obtains consents from B fraudulently. B alleges/claims consents are obtained fraudulently.

Illustration: A is selling a pen claiming it made in USA. It is known at the end of seller that it is not made in USA,
but it is made in China. He himself has no belief on its USA make. He knows that fraudulent statement. He knows
that if he will express China make, people will not attract towards its purchase. And if he will say USA makes,
people will come to enter into contract for the purchase of 100 units. In order to obtain consents by the statement
passed wrongly is fraud. In other words if there is difference in reality and statement, that is fraud. Seller himself
has not belief that it is made in USA.

Active Concealment of Fact: A thing, which, is intends to be sold having defects, is called active concealment of
fact. A is going to sell piece of land, which is already mortgaged. Seller is responsible to disclose this fact to buyer
before it is sold. All the consents, which depend on the disclosure of fact, if not disclosed, are active concealment
of fact.

If a seller intends to sell a piece of land worth of which is Rs. 1,500,000/- in market on a price of Rs. 1,200,000/-
which is less than actual rate, with an intention that he will run away after receiving of token money or full
payment, is fraud. All the consents, which are obtained with an intention that the purpose would not be fulfilled,
are fraud. All such acts constitute fraud. Coercion and fraud are also offence and are liable to start criminal
proceeding against offenders. These contracts are void-able.

4. Misrepresentation: Consents that are obtained on the base of wrong statement. How the misrepresentation is
constituted? What are its ingredients? We are referred to S. 18 that define misrepresentation. For example, a man
passes a statement, he has belief on its truth, he has no intention of misleading, deceives, but there is moral fault
in it and second party for which statement is passed, mis-leaded. In other words it is a pure accident. If a party
willfully makes a wrong statement about the subject matter for the purpose of other party to give consents, this
conduct amount a fraud, and if this representation is passed innocently, this amounts misrepresentation.
Generally speaking it is an untrue statement but one believes it to be true. This statement is passed without solid
source of information. All the given information is supposed true but actually they are untrue.

Two parties are going into contract. If there is no relationship or trust, other party will go to investigate the
authentic statement, but if the first party is trustworthy then it is moral obligation on the part of first party to
disclose whether any flaw exists in the matter. If the defects are not disclosed then first party constitutes the
breach of duty, which it is also, an offence. A man was going to elsewhere by air, and there was short time. Another
person brought a document for signature, he signed the document being in hurry without checking it which beard
some mistakes or faults. Held that it was breach of duty. Where there is no disclosure of faults or defects, that is
called misrepresentation.

If a party commits mistake even innocently regarding the subject matter to obtain consents for agreement is also
a misrepresentation. In a case party gone into contract for the purchase of a boiler. Seller was responsible to
deliver the boiler at the destination of buyer. Buyer innocently represented that there is practicable road all the
way, while, as a matter of fact, at one point there was a suspended bridge not capable of bearing the load of
boiler. Held void-able agreement on the option of seller or defendant.

5. Mistake of law and fact: Mistake of fact: Agreement becomes void if both the parties are under mistake as to a
matter of fact essential to the agreement.

Illustration: A, makes an agreement in Japan for the purchase of 100 Suzuki Cars. He receives documents of
contract in Lahore on January 05, 1999, that ship has been departed from Japan on January 01, 1999, and will
reach at Karachi port on January 10, 1999. A agrees to sell B 100 cars that are in transit. Later it comes to know that
ship was sink before making agreement. The agreement is void because both the parties were under mistake of
fact. It is important to mention that there are two types of mistakes of facts, i.e., Unilateral mistake of fact in
which only one party commits mistake of fact, and Bilateral mistake of fact, in which both the parties commit
mistake of fact. A makes an agreement with B to sell the goods to be imported from Japan. Later importer comes
to know that he has to pay a certain tax in Japan and he is not going to fulfill the agreement. This is unilateral
mistake of fact which do not makes agreement void. A has to bear such loss. Consents of B are free so contract
will be lawful.

A, purchases a cloth from a shop which seemed to be made in England, but later disclosed it was made in Pakistan,
is unilateral mistake of fact. Seller has not sold the cloth claiming made in England, so it is valid contract.

A is going to make contract with B for the sale of a certain horse. It turns out that the horse was dead at the time
of bargain and both the parties were unaware of fact. This contract is void.

A, son of B, make an agreement to sell his father’s property to C, but father of A dies before making agreement
will make it void.

Mistake of Law: It is presumed that every man knows the law and does not commit mistake upon its execution.
Mistake of law is culpable negligence on his part. It is generally said that ignorance of law is no excuse. A person
commits a mistake of law and later says I was unaware and if I had knowledge I must refrain to commit it. It is not
a defence. This is not acceptable and maintainable. Consents are given without knowledge of law is considered
free consents.

A makes an agreement with B. At the time of execution of agreement seller says that at the time of agreement I
was unaware that I have to pay certain tax which is not affordable for me, so my consents were not free. This
contract is no void and A is liable to pay damages. Onus of proof upon who alleges/claims. Since foreign law is not
enforceable in our country so all contracts on the base of mistake on foreign law would be treated as mistake of
fact rather than mistake of law.

Upon the mistake of fact both parties are provided opportunity for plea. If one party decide to remain continue the
contract and other one decides contrary, it will come void.

Void Contracts:

1. Unlawful at Law: Consideration and objects are unlawful in part. An agreement of manufacturing of indigo, DOP,
and Heroin against salary of Rs. 100,000/- is void, because it involves unlawful object in part that is prohibited at
law.

2. Without consideration: If there is no consideration, there is no contract. For instance, A promise to give Rs. 100/-
to B, without consideration other than natural affection, is a void contract.

3. Restraint of Marriage: Everyone has liberty of marriage with his own option except minor. If any contract restrains
anybody who is major, from marriage, is void contract.

4. Restraint of Trade: Restriction on any lawful business, profession, or trade is void except where the goodwill has
been sold. He can be refrained to carry on the similar business within special local limit.

5. Restrain of Legal Proceedings: Everyone has right of legal proceedings upon dispute in the Court of law. But there
is an exception. If dispute arises, then they will be bound before going to Court, to decide by way of arbitration.
Decision by way of arbitration is called award. When it comes to the rule of Court, then it is enforced.

6. Uncertain Agreements: All the agreements meaning of which are not certain, are void. Example: A agrees to sell
B, 100 tons oil. This agreement is void on the ground of uncertainty because kind of oil is not specified. But if A has
only one kind of oil for which he is popular, then there is no uncertainty to make the agreement void.

7. Agreement by Way of Wager: It means contract by A to pay money B on the happening of a given event, in
consideration of B paying to him money on the even not happening. A promise to give money or money’s worth
upon the determination of an uncertain event.
8. Agreement to do impossible act: It is itself void. Agreement of magic is void.

9. Contract to be married become void when one of them becomes mad. Contract of second marriage
where polygamy is forbidden is void. Trade with the country against, which war has been declared, is void.

10. Contrary reciprocal contract: All contracts which have promise, one set of which is legal, and other one is illegal is
void. For instance, A agrees to sell to B and a car against an amount of Rs. 50,000/- and 1 kilogram heroin. Set of
first contract is valid but second one is void.

11. Alternative promise, one branch being illegal: Promise in which one branch is legal and other one is illegal, the
legal branch can be enforced. Example, A agrees to deliver to B for Rs. 50,000/- either wheat or wine. First branch
of this contract can be enforced while second one is void.

12. If there is provision in contract that promisor will provide facilities for the execution of contract to promisor,
contract will become void upon refusal of such facilities. If, for the purpose of whitewash, promisor fails to provide
ladder and brushes to promisee, under the provisions of the contract, contract will become void. Promisee may
claim damages against the breach of contract.

13. If time is essential as per contract then other party is at liberty to get the contract revoked and can claim damages
and if time factor is not important then other party cannot repeal the contract and cannot claim damages.

For example, A agrees to B for the supply of 100 Books on February 01, 2000, and he fails to do so. It now on B to
claim damages or compels A to perform the contract. It does not matter that the price of the books have been
increased or decreased.

14. Obligation of a person, who has received advantage under void agreement or contract, that becomes void. For
instance, Ali pays to Zahid Rs. 100,000/-, in consideration of Zahid’s promising to marry Najma, Ali’s daughter.
Najma died at the time of promise. The agreement is void, and Zahid is bound to repay Rs. 100,000/- to Ali.

15. Collateral agreements are those which are related to others. For example, A makes an agreement with B for the
construction of a home without mentioning the mode of payment. A makes another agreement stating as to how
the payment of the work done in first agreement will be made. This agreement is called collateral agreement. This
is dependent agreement. This agreement is also void if the principal agreement is void. Past collateral agreement
are those fact of which for both parties is uncertain. Receiving of the amount of the agreement made by way of
wager is void. Legal representative, guardian, executor, successor are not liable for the compliance of the
agreement having nature of wager. It will be void. Where there is no right and obligations are created, there is no
liability. All the agreements that are ab initio, are void right from that time/formation. Ab initio are those which
become void by an act of God or State.

Contingent Contracts: § 31 to 36 deals with contingent agreements. Two parties make an agreement performance of
which is connected with an uncertain or collateral is called contingent contract. Happening of a particular uncertain
event is regarded as contingency to the contract. This is a contract in which created rights are enforceable at the
happening of a particular event, and in the inverse situation it shall not be enforceable. It the particular event takes
place, then it is performed, otherwise it is not enforced. If the house is burnt then payment will be made and if there
is no fire, there is no performance of contract. Insurance is common example of contingent contract except death
insurance because death is not uncertain matter. It is definite event.

Performance of contracts: If the time of payment of money is mentioned in agreement then no dispute arises. But if
the said object is not provided then definitely dispute will arise. It requires to be decided. Contract Act assists us in this
case by providing us guiding principles. Business on a particular place or market sets particular principles. These
practices are followed in the solution of cases. Law determines the rights and obligations of the parties, which are not
incorporated in contract. If a seller sells goods and buyer not pays the price, seller has right of stoppage of goods in
transit. This is determined in law. If buyer has credit of six months, then this practice cannot be followed. Rights given
by law, but not incorporated in contract do not mean that they have been lost. A machine is given to mechanic for
repair. His is responsible for repair and may retain the object on demand until payment is made.

Frustration of contract: These are the contracts that are impossible to perform by an act of God or State. These are
beyond the control of parties.

How a contract is discharged:

1. By performance: When a valid contract is performed as per all the terms and conditions, and its compliance is
completed, objectives are achieved, then it is discharged.

2. Death: Generally death does not cause to discharge contract, but the agreement where particular skill is involved,
death discharges the contract. For instance, A agrees to file law suit on certain date, but he dies before the date.
Representatives are not responsible.

3. Breach of contract: Where the requisite performance is not made, second party is at liberty to put it an end if
contract is not continued after break.

4. Frustration of contract: It puts contract to end when an act of God or State come into force or anything occurs
which is beyond the control of party. Compulsion makes contract abolish.

5. Procedure: If contract lacks to provide necessary ingredients of the contract that may include, date, time, place
etc. may discharge the contract. Readily available principles or practices and standard of reasonableness may solve
this problem.

6. By excuse of party: If one party excuses performing then contract will be the part of dustbin.

Liability of third person or party: A contract of sale is made by A with B. B is bound to deliver goods to A on certain
date. B dies before delivery. A cannot compel to perform contract to third party. But if C gets inheritance of B, then C
being legal heir or successor or representative is liable to perform the contract of B.

A borrows Rs. 50,000/- from B and dies before repayment. Successor of A, C is liable to repay loan to B. But if C gets
nothing in inheritance, then C is not liable. If C gets Rs. 25,000/- from A, liability of C rests upto Rs. 25,000/- and not
upto Rs. 50,000/-.

This is general rule that rights and liabilities go together. Both cannot exceed each other. Rights/Inheritance of Rs.
25,000/- cannot create liability of Rs. 50,000/-. It shall remain upto Rs. 25,000/-.

Collective responsibility: Responsibility in the contracts where two or more promisee are bound to complete the job
jointly and fails to do the job, all or one of them can be sued. No one can put his responsibility to other one. A contract
of building is given to three persons. They could not complete the building. All or one of them can be sued. They all
are responsible to pay damages even only one is sued.

If all of them are assigned three different jobs to perform, then all are responsible to do their particular job. If one of
them remains unable to perform job, he solely will be responsible. But if a contract is given to three partners and they
made another contract among them to do particular job by all of three and consequently one of them fails to do job,
all can be sued. But two of them, who have been done their own job can sue to defaulter to do his job or pay
compensation.

Appropriation of debt: Where a creditor issues more than one debts to debtor under one or more contract and in
which method of payment and/or appropriation (settlement) is not mentioned, there § 59 to 61 are applied.

S. 59 deals with the case where debtor repays his debt and particularly mentions as to against which this repayment
is to be appropriated. Law gives authority to creditor to appropriate the repayment at his option or discretion. Debtor
cannot compel creditor to appropriate as per his will.
S. 60 deals with the case where debtor repays the debt and do not mention as to which debt this repayment is to be
appropriated. Here creditor again has discretion to appropriate the debt, as he wants.

S. 61 deals with the situation where neither debtor nor creditor mentions the appropriation for the repaid debt. If
dispute arises then creditor will be provided full opportunity to appropriate the debt in series as they were issued.
First debt will be appropriated first, and then second and at last third loan will be appropriated.

Novation of contract: Contracts which, are not to be performed while compliance of a valid contract is a legal duty. If
the valid contract is not performed, it is regarded as breach of contract. Any contract entered into validly, needs not
to be performed and it non-compliance is not regarded breach of contract. S. 62 mentions that change or alteration
or modification in same contract with the same subject matter and with the same parties is called novation of contract.
A enters into contract with B for rental of a house. Both agree on Rs. 500/- per month rent for a year. Now both are
obliged to perform the contract. After passing some time, both alter this contract with monthly rent Rs. 1,000/- per
month, for three years. Parties and subject matter is same and this similarity has Novated the first contract with second
one. If the subject matter is same but parties are different or parties are same and subject matter is different, in both
cases novation does not take place and appears that compliance of both contract, i.e., first and second is compulsory.

S. 63 deals with the situation where performance of originally validated contract is remitted. If tenant becomes fail to
perform the contract due the reasons uncertain, it will be regarded breach of contract. But if promisor remits, it will
not be breach of contract and its performance will not be compulsory. A agrees to sell B a horse. Afterwards B refuses
to purchase it. A is no longer bound to perform the promise. In second instance if A offers employment to B and issues
letter of appointment but later B does not join the employment, A is no bound to perform the contract.

If acceptance is refused, no contract is formed and if under the contract facilities are not provided then also it needs
not to be performed. A enters with B in contract for whitewash with certain facilities to be provided by B to A. B does
not provide such facilities. A is not bound to perform the contract.

If a contract, later, becomes void-able or void, benefit received under these contracts can be recovered. According
to S. 64 if contract becomes void-able and according to S. 65 becomes void, benefits received under both cases, may
be recovered. Plaintiff can sue u/s 64 and u/s 65.

S 66 – Under void-able contract, if promisor wants to revoke the contract, must communicate to promisor. Simply
silence is not acceptable. Party who wants to make agreement void-able should communicate the revocation in the
same manner whereby it was communicated for acceptance. There is no contract between the parties where
acceptance is not communicated.

S 68 – People like minor and unsound mind have not capacity or competency to enter in contract, but they also need
their survival. All the agreements, which are made for the benefit for them can be executed. These people are
incapable to enter into contract, but they need necessities besides contract. This non-contractual relationship is
enforceable u/s 68 of Contract Act. There are certain relationships, which are non-contractual, but are similar to
contractual relationship, and are enforceable. There are certain limitations on the non-contractual relationships to get
it executed. Things provided under this relationship should be necessities for life and secondly it should be suited to
his condition in life. Social standard must be taken into consideration. A poor student needs a bicycle to get education
to go to school five kilometer away. Cost of cycle can be recovered from his property or a person who is legally bound
to support him. If a poor child buys mineral water rather than bread, cost cannot be recovered because it is not suited
to his condition of life.

S 69 – There are certain other relationships which are non-contractual but can be enforced. Where a party is legally
bound to pay money and other party has interest in the payment of money, is enforceable non-contractual
relationship, which amount quasi contract.

For instance, A is owner of shop and has leased it to B. There are some liabilities toward A, an owner. He is defaulter
and cannot pay outstanding dues. Orders of auction are issued of A’s shop and Rs. 50,000/- are payable. In case on
non-payment shop will be forfeitures. B has interest to pay Rs. 50,000/- to save his interest as tenant to carry on his
business. B pays Rs. 50,000/- and forfeiture is ceases. B can claim this money from A. It is quasi contract u/s 69 and
thus enforceable. There are two conditions, which make quasi contract. There should be legal duty of payment and
there should be interest or benefit of other party otherwise quasi contract will not form.

S 70 – Where there are benefits derived from anything are enjoyed non-gratuitously, it also forms non contractual
relationship. Person who gets benefits must pay compensation to other party. Where there is no title, there is no
transfer. Stolen goods cannot be sold. Finder of lost goods is called bailee. One who transfers goods to another is
regarded as bailer and this act is called bailment. A person leaves something to B’s house, and B get benefit from it, B
is liable to pay compensation to A. If A saves B’s property from fire gratuitously, there is no compensation.

S 71 – Finder of lost goods is treated as bailee and he is obliged to return goods to its principle owner. Lost goods can
be recovered.

S 72 – Where money is paid to wrong person or to actual person but wrongfully paid, can be recovered u/s 72. Double
payment, wrong payment, excess payment to anybody is recoverable under this section. There also is no contract but
amount is recoverable.

There are certain reasons, which render contract discharge, e.g., non-performance, excuse, and compromise etc.
Breach of contract is one of example which renders contract into breach, but it does not render the contract fully into
breach, it remains into force and enforceable. Remedy of breach of contract is available by two ways, i.e., by the § 73,
74, & 75, and by The Specific Relief Act, 1877. A agrees with B to sell certain books @ Rs. 50/- per book. Books are
not supplied at the required time and place thus contract is breached. The Specific Relief Act, 1877, comes into
operation to get the said contract enforced. Court orders to A to fulfill the requirements of the contract. If B purchases
the same books from elsewhere on payment of Rs. 80/- per book, his loss recoverable will be upto the extent of Rs.
30/- per book. Actual loss always equal to actual damages.

Second way is to claim damages, which are incurred in result of breach of contract. One who breaches the contract is
liable to pay compensation to the party suffered from loss. There is a company involved in selling of medicines and
has reputation. They purchase medicines from whole seller. He supplies them one defective medicine. Quality Control
department raids and consequently Medicine Company held guilty for the selling, medicine forfeitures and
punishment is awarded. Later on Medicine Company files a lawsuit of damages against wholesaler. Company has
suffered from closure of shop, destitution of expected profit, damage of reputation, prosecution expenses are
incurred, mental suffering, career’s loss, sale of property, loss of children’s education and business etc. There should
be a clear-cut line between the immediate and remote losses. This is the job of Court of draw a line between them. S.
73 says that direct or immediate damages are awarded and not the remote or indirect damages.

S. 73 applies where damages are not mentioned in contract while S. 74 applies where damages are stipulated and
party of contract may claim, upon breach. Quantum of damages is determined by Court.

S. 74 – Parties decided damages in contract, which are liquidated. Liquidated damages are those which are described
in contract and un-liquidated damages are those amount of which is post determined. One, who commits breach of
contract, is liable to pay penalty, damages, or compensation upto the extent of stipulation. Sale of property
agreement is one of example.

A agrees to sell to B a house on Rs. 100,000/-. B pays to A Rs. 50,000/- as token money. Later on A refuses to sell house
to B. B will get double compensation from A, i.e., Rs. 100,000/-, provided in contract. If B commits breach of contract,
then A will forfeit the token money of B, i.e., Rs. 50,000/-, being the part of contract. This is contractual right and
liability. These are predetermining and liquidated. In an other situation if the similar type of house in the same locality
gets price of Rs. 150,000/- and A commits breach, B cannot demand Rs. 150,000/-, being market value, and his liability
will be restricted upto Rs. 100,000/-, B cannot invoke u/s 73, it will become inoperative.

Breach of contract u/s 75, applies where performer revokes or commits breach and receive damages, too, if provided
in contract.
For instance, A agrees to provide to B, 100 books, in five equal installments. Payment of each installment becomes due
on delivery and before next installment, B fails to pay amount against first installment.

A not only can revoke contract, but also can claim damages for the loss of contract. In the reverse example, if A fails
to provide first installment at stipulated time, B can revoke the agreement with the claim of damages.

Indemnity u/s 124 is the promise or commitment to pay compensation to whom suffers from loss. A person who pays
compensation is named indemnified, one who receives compensation is called indemnity holder, and this process is
called contract of indemnity.

A has to dispatch some goods to other city through a transport company. Transport Company commits A to
compensate in case his goods suffers from any loss or hazard. A is indemnity holder, i.e., may receive compensation
upon the occurrence of loss to goods, transport company is indemnified and this agreement is called contract of
indemnity. Payment of rent is consideration.

S. 125 deals with receiving of compensation. B is an agent of A. A third party C sues B in connection with his business,
that is carried by B. B defends A in legal proceedings and some expenses are incurred to save the interest of A.
Although there is no contract between A & B to recover these sort of damages, but S. 125 provides this facility. B can
recover these expenses from A. B also can claim damages for which he was compelled to pay. If B settles a matter
with C, also he can receive damages from A.

B cannot recover indemnity from A, if A has specified specially not to do certain things or he has incurred unreasonable
amount to settle a matter.

Guarantee u/s 126 is a contract to perform the promise or discharge liability of a third person in case of his default.

Party who gives loan to second party is called creditor. A person who receives the loan or the person in respect of
whose default the guarantee is given is called the principal debtor. A person who gives the guarantee is called the
surety. A guarantee may be either oral or written. Introduction in account opening process is not a guarantee.

A principal debtor can be compelled to discharge his liability in case of default. Liability of principal debtor is not
discharged if surety runaways. If contract of guarantee is fulfilled, then the surety is discharged, too.

Difference between guarantee and indemnity:

1. There are three parties in guarantee while two in indemnity.

2. Guarantee agreement is security of creditor while indemnity is reimbursement of loss.

3. Guarantee is relationship with creditor and surety indirectly while indemnity is direct engagement between two
parties.

4. In guarantee surety can be sued while in indemnity, indemnified cannot sue.

5. Guarantee is crated by third party while nothing is third party in indemnity.

6. Guarantee is written while indemnity may be oral.

S. 127 – Contracts without consideration u/s 25 are void, but where benefit or interest of the principal debtor is
sufficient consideration on the part of surety, for the purpose of guarantee.

S. 128 – Surety’s Liability: Liability of surety is co-extensive, unless it is otherwise provided by the contract. If A lends
Rs. 50,000/- to B, on the guarantee of C, a surety, and B defaults in repayment, C is liable to pay Rs. 50,000/- to A. If B
pays Rs. 20,000/- and then commits default, C will pay remaining liability of Rs. 30,000/-. Liability of debtor is liability
of surety. If contract provides that liability of surety will remain upto Rs. 25,000/- in deal of Rs. 50,000/- then liability
of surety will remain upto Rs. 25,000/-. Then it will not co-extensive. If principal debtor fails to repay or commits
default, liability of principal debtor will transfer to surety along-with rights of principal debtor. If A lends Rs. 50,000/-
to B with personal guarantee of C along-with security of ornaments worth Rs. 20,000/- and B commits default then
not only liability of B will transfer toward surety but rights of principal debtor, too. If B fails to repay and creditor
returns ornament to B, C can sue A in Court of law. This guarantee is applicable in single transaction.

S. 129 deals with continuing guarantee which extends over a series of transactions.

Illustration: A employees B on the guarantee of C, for the collection of rent due upto Rs. 5,000/- and A will pay him
fixed salary Rs. 1,000/-. This is continuing guarantee because it spreads over number of series.

In another illustration, B supplies tea to A, worth Rs. 5,000/- on the guarantee of C. A pays B the whole amount.
Afterwards B supplies to A tea above the value of Rs. 5,000/- and A fail to pay. The guarantee given by C has a
continuing guarantee, and he is accordingly liable to B to the extent of Rs. 5,000/-.

Revocation of guarantee: Continuous guarantee, at any time, may be revoked by the surety, as to future transactions,
and must be served a notice to principal creditor. Guarantee for single transaction may also be revoked at any time
with a prior notice to the principal creditor.

If ten transactions are to be made under the continuing guarantee and six of them transactions have been made,
surety may revoke guarantee for rest of four transactions with prior notice to the principal creditor.

Death in case of continuous guarantee is considered revoked, so far as future transactions are concerned. Any
contract can be altered at any time but this variance must be communicated to surety and his consents must be
obtained, otherwise liability of surety u/s 132 will be discharged.

If the principal creditor releases the debtor from his obligation or liability, then surety automatically will be discharged
u/s 134.

If principal creditor compounds to give more time other than contract to debtor for not to sue, discharges the surety,
unless the surety assents to such contract. Time variance under contract shall not discharge surety u/s 136.

If the repayment of debt becomes due and debtor commits default and creditor does not sue after due payment, does
not discharge surety’s liability u/s 137.

Where there are more than one sureties and creditor release one or more than one of them, will not affect remaining
sureties’ liability. If two sureties give guarantee of Rs. 50,000/- loan, both will be liable equally for Rs. 25,000/- each, in
case of default of debtor. If guarantee varies, as Rs. 30,000/- for A and Rs. 20,000/- for B, both will be responsible upto
the extent of contracted guarantee.

Rights of principal debtor are transferred towards surety upon the commission of debtor’s default. Guarantee, which
is obtained by misrepresentation, is invalid u/s 142. If the facts of guarantee are concealed from surety renders it to
invalid.

Surety can recover, whatsoever he has paid to principal creditor, in case of debtor’s default, from debtor even it is not
mentioned in contract. But the amount paid by surety wrongfully cannot be recovered.

Co-sureties are liable upto the defined extent of liability. And if percentage is defined, they will liable upto the defined
percentage to each of them.

Contract of hire-purchase: Agreement by which an owner lets chattels of any description out on hire to the hirer, and
further agrees that the chattels shall become the property of the hirer when the payments of hire-rental have reached
a sum equal to the amount of the purchase price stated in the agreement, or upon the payment of a stated sum.
Bailment: We give and take many things in our routine life daily. Many of them delivers gratuitous and many non-
gratuitous. We owe movies, pressure cooker, fan, book, and car etc. In all instances possession is changed from one
to another. This is temporary possession or transfer of possession. When other party fulfills his object, goods are
returned to the party who had transferred the possession. Titled goods are transferred temporarily and after
accomplishment goods are returned is called contract of bailment. One who transfers the possession is called bailor
and in favour of whom possession is transferred is called bailee.

Goods are delivered to bailee by bailor directly or one whom does the bailor authorizes. A being bailor bails a movie
one rent to B. Later C comes to A to have such movie on rent, A says to B to deliver movie to C being authorization to
B to deliver goods on bailor’s behalf.

Bailor is bound to disclose faults in goods, to bailee. In contrast bailee can claim damages on the occurrence of injury
to him. Bailor should not be negligent and must be vigilant u/s 150 at the time of delivery of goods without faults.

Duty of bailee is defined u/s 151. Bailee is duty bound to take care of goods bailed to him in a manner as he takes care
of his own goods, as reasonable man and in reasonable manner.

If bailee takes care as defined u/s 151, he is no more liable to pay damages to bailor u/s 152, if occurred. Normal
depreciation is acceptable.

If bailee does not act for which bailment is made, bailment would become void-able at option of bailor. Example, A,
lets a horse to B for his own riding. B drives the horse in his carriage in-spite of riding. It becomes void-able at the
option of A being violation of the bailment u/s 153.

Damages are recoverable upon the unauthorized use of bailment, if injury occurred. If goods bailed are used other
than bailee and loss occurred, bailee is liable u/s 154.

Goods of bailor and bailee can be mixed with consents of bailor either separable or non-separable u/s 155. No liability
arises if loss occurs.

If bailee mixes the goods bailed without consents of bailor and goods are separable, expenses will be borne by the
bailee for separation or division u/s 156.

Goods of bailor, which are inseparable, if mixed with the goods of bailee, bailee is liable for loss of mixing, if the mixing
is without consents of bailor u/s 157.

If the necessary expenses are incurred on the goods bailed by bailee, bailor is liable to pay such expenses u/s 158.

It is duty of the bailee to return the goods bailed to him after accomplishment of the purpose, soon, irrespective that
bailor demands or not u/s 160. If duty u/s 160 is not performed then bailee is responsible for the loss u/s 161.

Death either of bailor or bailee terminates the gratuitous bailment u/s. 162.

Bailor is entitled to receive any increase or profit, which is attached to the bailment, if contrary is not provided.
Pregnant cow will be returned with young cow (calf) if she delivers before return u/s 163.

Finder of lost goods may retain the goods to receive the reward specific from the bailor u/s 168.

Finder of lost goods may sell goods if they are perishable or if lawful charges are equal to 2/3rd. of the value of goods
found u/s 169.

Bailee can retain goods bailed to him in order to receive remuneration against services involving the exercise of labour
or skill, if applicable u/s 170.
A, a motorcycle bailed to B for repair. After duly repair B can retain motorcycle until the services rendered are
recovered.

Bankers, commission agents, god-own owners, advocates of High Court, and insurance agents can retain goods bailed
to them until they are paid against the services they have rendered by them to bailor u/s 171.

Pledge is delivery of goods, as security against loan. These goods are also called pawn and are returnable after the
debt is retired. Pledge is applied on moveable property. The person who pledges his moveable property or bailor is
called pawnor and the person, in whom favour goods are bailed, is called Pawnee.

Pawnee’s rights: They are as follows:

1. Retention of goods: Pawnee can retain goods until the promise is performed or debt it retired, interest, if any, is
received, necessary expenses which were incurred have been received for the purpose of preservation of goods.

If the cow was bailed as pledge, the expenses incurred on green fodder, which are necessary and are perceivable
at the time of pledge, can be claimed as ordinary expenses.

2. Recovery of extraordinary expenses: Pawnee also can sue for the recovery of extraordinary expenses incurred
beyond the perception. In above example medical treatment, which cannot be foreseen at the time of making
pledge, can be recovered through Court.

3. Selling of goods: If pawnor commits default to pay back debt or in performance of promise, Pawnee can sue or
sell the goods to recover debt. If the amount received form sale proceeding is less than the debt, rest amount can
be claimed either by demand or sue. Reasonable notice must be served to the pawnor before sale proceedings.

Pawnor’s rights:

1. Release of goods: Pawnee is bound by law to release the goods of pawnor whenever debt is retired or promise is
performed. Pawnee cannot retain the goods of pawnor for the purpose other than debt for which goods were
bailed.

2. Surplus of sale proceedings: If Pawnee sells goods and amount recovered is surplus of actual debt, the rest
amount is right of the pawnor.

3. Redemption of goods: Pawnor at any time can pay back debt after the date of payment is expired, before
proceedings of sale. If the goods are not sold and are in the hands of Pawnee, Pawnee cannot say that time has
been expired, and now goods must be sold. Law gives right to pawnor for the redemption of goods. But pawnor
is obliged to pay the interest accumulated and necessary expenses incurred on the goods bailed.

The period for a suit against a Pawnee to recover the things pledged is thirty years from the date of the pawn.

4. Pledge for the benefit of pawnor: A mercantile agent may pledge goods of his principal for the benefit of his
business with the knowledge of principal.

5. Possession under void-able contract: Pawnee can obtain pledge under void-able contract from pawnor in the
absence of knowledge of void-able contract.

In case if third person deprives to pawnee to use his goods, or injures them, pawnee can claim damages being the
owner of the goods or both pawnor and pawnee can sue against him.

Amount received from lawsuit is disburse-able in both proportionately.

There are many duties, which are to be performed by a person. A single person cannot perform some duties. To get
the different jobs done, authority to do is delegated to a person. A person employed to do any act for another or
represent another in dealings with third person is called an agent. The person, who employs an agent and delegates
him some powers or who is so represented, is called principal. An agent creates relationship between the principal
and third person in dealing certain matters. The relationship between principal and agent is also contractual.

Who may employ an agent: Following are the pre-qualifications of the principal for the creation of an agency:

i) An agent should attain age of majority before appointment.

ii) Person of sound mind may be an agent.

Consideration for the creation of an agency is immaterial.

Principal may delegate authority to his agent expressively or implied. Authority is express, when it is given by words
or written while it is implied, when it is left to be inferred from circumstances of the case or the course of dealings
between the parties. If an agent performs an act, which is in the knowledge of his principal, is an implied authority.

Extent of agent’s authority: An agent can take every lawful measure to carry on business of his principal for which he
is so authorized. For example, A constitutes B as an agent to build a house. B can purchase building material and
employs workforce, for the purpose of carrying on the business.

In case of emergency an agent is allowed to do every lawful and possible act to protect the interest of his principal in
a way as his own interest. It should be done reasonably.

A gives a parcel to B to sent it to Karachi within twelve hours. B can sent it by speedy courier service, despite ordinary
mail, even on higher rates.

Sub agency can be created if principal allows expressively or implied or nature of business or customs of trade permits.

A sub agent is a person employed by the agent on the behalf of principal. A principal is responsible for the acts of sub
agent where sub agency is created properly and where sub agent represents his principal.

Sub agent is answerable to agent and agent is an answerable to principal. Principal and agent are liable for the
commission of fraud of the sub agent. A sub agent appointed by an agent without authority is not liability of principal
and agent is sole responsible for his acts.

If principal names a person to employ by agent is not sub agent, but the agent of principal. Agency can be created
with or without consents of the principal. If principal authorizes agent to employ sub agent then principal is
responsible vicariously for the acts of sub agent being an agent. If principal names the sub agent then agent is not
responsible for the acts of sub agent.

If principal does not name the sub agent but specifies some qualifications or conditions and an agent employ the sub
agent of specific skills in good faith, likely his own interest, the agent is not responsible for the act of sub agent
because he has taken due care for the appointment of sub agent as per principal’s order. For example, an agent
employs a sub agent of good repute to construct a house and house gets fall down after construction. Agent is not
liable but sub agent is responsible. If the sub agent employed by an agent is incompetent then an agent is liable for
his wrong acts.

If an agent or sub agent performs their duties with lawful authority, express or implied, principal is liable for the
consequences, and in contrast principal is free from burden and concerned individual is responsible. Principal is not
responsible for unauthorized acts but he can ratify such acts and then principal will be responsible as that acts were
authorized.

Essentials of ratification: There are some prerequisites of the act of ratification as follows:

1. Act must have been done for and in the name of principal.
2. The principal should know facts and figures and his knowledge must not be defective. If there is concealment of
facts, ratification would become void.

3. Since the effects of ratification take place in back dates, so ratifier is supposed major at the date of ratification. A
principal ratifies certain acts of an agent or sub agent from back date says January 01, 1980, it should be assured
that principal was then competent to authorize the acts ratified.

4. Ratifier should live at the time of ratification. Written statement of dead person is invalid.

5. Only lawful act can be ratified thus forged signatures are not ratified.

6. Whole and not partly transactions must be ratified.

7. An act of ratification must be completed within reasonable time. Reasonable time is a question of fact.

8. Ratification may be expressed or implied.

9. If the right of interest or benefit was terminated in back date then it cannot be granted.

10. Transaction void ab initio cannot be ratified.

11. Act, which injures third person’s interest, cannot be ratified.

Revocation of authority: Following are the ways to terminate or revoke the authority given by principal to his an
agent:

1. After accomplishment of task or business matter or object, authority is automatically terminated. An agency will
stand terminate if it was created for the accomplishment for specific purpose and purpose has been achieved.

2. If the agency is created for specific time period and that time has expired, it will stand terminate.

3. If the agent is so lazy, incompetent, duty does not comply with duty etc. an agency will be terminated.

4. By either party agency can be terminated by giving notice to one another. If breach of contract is committed then
defaulter must pay compensation to other party.

5. Where principal does not pay compensation to his agent, then an agent may terminate an agency.

6. Before start up of subject matter, an agency can be terminated.

7. Part of authority exercised cannot be revoked but rest of the authority can be revoked.

8. Where the interest of an agent is involved, an agency can be terminated with the consents of an agent otherwise
death or insanity does not provide ground to revoke the authority.

9. Death or insanity terminates the principal’s authority. But an agent is bound to carry on business or protect
interest of his late principal until the business is succeeded.

10. An agent can resign.

11. An operation of law terminates the agency.

Duty of an agent to his principal:

1. An agent is bound to conduct the business of his principal according to the directions given to him by principal or
in such absence, according to prevailed customs of the business at that place.
2. He is duty bound to receive instructions from his principal, if and when required.

3. Skill and diligence, which is essential requirement of the business, must be performed.

4. Consequences of neglect must be borne by an agent.

5. An agent is bound to render proper accounts to his principal on demand.

6. In case of difficulty, an agent is bound to obtain instructions from his principal.

7. An agent cannot use his own name in the business of his principal if so benefit derived will be given to his principal.

8. An agent is bound to pay all sums received on his account after making necessary legal deductions.

Duty of principal towards his agent:

1. Principal is obliged to pay to his agent, remuneration and all legal expenses incurred to carry on business.

2. Payment of commission, disbursements, and services to agent is duty of principal.

3. All lawful acts of an agent must be indemnified.

4. Agent to be indemnified against consequences of acts done in good faith.

5. Principal is not bound to indemnify an agent of his criminal act even committed on express or implied consents.

6. Principal is obliged to make compensation to his agent in respect of injury caused to such agent by the neglect of
principal or want of skill.
Sale of Goods
Course Contents: Entire Act.

The Sale of Goods’ Act, 1930, extends to whole of Pakistan. Since it is federal law, therefore it is followed in all parts
of Pakistan. It relates to moveable goods, such as, fan, book, table, chair, car etc. All goods, which are moveable, can
be carried out from one place to another. Where the transfer of goods takes place in a way of sale, there the Sale of
Goods Act, 1930, applies. There are many ways whereby contract of sale can be made. They may either be verbal,
written, or implied. Purchase of pen for Rs. 50/- is a verbal contract. Everything is not written. If a person gives me Rs.
50/- and takes my pen and I accept price of pen, is called implied contract. I purchase a book, take it to home, open
and find some papers missing or binding is out of order I may return it to get my money back or replace it.
Merchantable quality must contain its commercial value. Perished items have no commercial value like perish milk.
Seller and buyers are bound to follow rights and obligations, which are provided in contract. Rights and duties either
provided or not in any contract, the Sale of Goods Act, 1930, applies in all circumstances. Contract of pledge may take
place verbally and if breach of contract is committed, it can be sued. Pawnee has right to sell the goods of pawner in
order to recover his credit and expenses for the proceeding of sale. This right even is not provided in contract but
Contract Act, which is a statue, gives him such right. Formation of sale of goods contract has two kinds, i.e., contract
of sale and agreement to sell. Where a sale proceeds happens immediately and goods are delivered at once that is
called contract of sale. Where transfer of goods takes place in future time, which is subject matter, is called agreement
to sell. After compliance, agreement to sell is converted into contract of sale.

Essential requirement of sales is offer from buyer or seller, consideration, acceptance, delivery of goods at once or in
installments. Goods may be either existent goods or possessed or future goods.

Condition: Contract has certain conditions, which are to be fulfilled by all the parties. Also there are some warranties.
These are called stipulations. Condition is necessary part of the contract and its breach renders contract invalid. It is
fundamental of contract. Its breach produces legal consequences.

Warranty: It is also a stipulation but is not fundamental. Its breach neither creates any legal consequences nor defeats
contract and purpose of contract is served.

Condition and Warranty distinguished: Breach of condition arises legal consequences and renders contract invalid.
Other party may terminate contract. He can claim damages.

Warranty is secondary point. If it breaches, right of compensation arises, but does not redder contract invalid. If the
goods purchased are not in accordance with the specification of the contract, it is condition and contract is liable to
terminate, but if goods are likely to be ordered and there is just a defect, it is warranty and other party may claim
damages. Contract cannot be terminated. There is only one condition in which upon breach of warranty, contract can
be terminated. Contract is liable to terminate by seller upon breach of warranty provided seller could neither repair
nor replace the goods, which are defective.

For example, 100 chairs for Computer College are ordered. Chairs provided by contractor are not as per requirements
and purpose is not served, it is condition and contract is liable to terminate. But if the chairs serve the purpose but
color of the chairs is not according to contract, it is warranty and damages can be claimed.

Condition can be treated as warranty if buyer waives his right.

It is obligation of seller to provide opportunity to buyer to inspect the goods, he is intended to buy. If the opportunity
to inspect the goods for quality and quantity is not provided by the seller to buyer and goods are found defective,
seller is liable to compensate buyer. If seller provides opportunity to buyer and goods found defective, only damages
can be claimed. If opportunity is not provided and goods found defective, contract may be terminated. If party accepts
delivery of goods, and then it is warranty, otherwise condition.
If the stipulation is condition but law of land deals it as warranty, then it will be warranty.

Sale can be offered by three ways in addition of one more way:

1. Sale by sample: In this instance, sample of product is shown to buyer and order is collected/obtained. For example,
a seller of fan in Gujrat may show sample of fan to buyer in Lahore. Seller is under obligation to provide goods
according to sample.

2. Sale by description: In this case, specification of goods is provided to buyer and no physical good is shown to him.

3. Sale by both: Sample along-with description, both are provided. Sale may vary from the sample shown because of
description.

4. There is another way of sale. It is sale by approval. In this instance goods are delivered to party to inspect and
decided for purchase. If party disapproves, sale is not happened. Expenses of delivery and retaking will be borne
by seller. If buyer disapproves sale not within specified or reasonable time, buyer will be responsible. If buyer
disapproves, and goods are damages without negligence and fault of buyer, seller will remain responsible.

Goods cannot be sold ownership of which is not passed on to buyer by seller. By this process buyer becomes owner
and he acquires title and seller loses the ownership over property. Property is not transferred until the title over
property is not transferred. Stolen goods cannot be transferred being the absence of title. Possession is insufficient
to have title. Transfer of goods and title, are two different things. Goods are passed on when seller loses control over
goods and buyer acquires control over them. Transfer of subject matter is passing on of property in goods and control
of seller is lost.

Who is subject of risk or loss when goods sold are in transit? Goods may be damaged before passing on, after passing
on, and while transit. Who will be responsible if loss is occurred? It depends on the situation whether property in goods
which is subject matter, has been passed on. As soon as seller loses control over goods, it completes the process of
passing on.

There are certain steps in passing on property in goods. For example, order to buy 500 kilo gram wheat does not
constitute passing on until specific wheat is separated from bulk. There may be bags of 50 kg., each. If bags are to be
bought, then they must be separated. If the goods are likely to be assembled, they must be assembled, and if packing
is necessary to give it deliverable form, it must take place.

1. Ascertainment of goods must be assured before passing on goods. Goods must be separated.

2. Specific goods are not required to be ascertained.

3. Goods must be in deliverable form before passing on. Packing, assembling, polishing furniture are different kinds
of deliverable form.

4. Parties must be intended in passing on at particular date and time. If date and time is specified, then passing on
completes even if goods are not transferred.

If the goods are perished before passing on, seller is responsible, if perished after delivery, buyer is responsible
for loss. When specific date and time comes, passing on is considered takes place.

5. If goods are brought through carrier or porter, who will bear loss, if occurred? As a general rule, when goods
passes on, risk also passes on. But it depends on situation. If buyer hires the carrier then risk is responsibility of
buyer. Normally buyer gets goods insured to cover risk. If dispatch of goods is responsibility of seller at the
doorstep of buyer, then risk lies on seller. Damage by porter is also dealt by this principle.

As soon as buyer acquires the control over property in goods and seller loses his control over the same, passing on
takes place. How the title is transferred from seller to buyer? In mortgages, pledges, bailment, title of ownership does
not transfer, but only possession transfers. As general rule goods cannot be transferred until the seller thus passing
acquires the possession on does not take place in absence of possession. Some time buyer purchases the goods, which
are not in possession of seller, thus he has no title, but even than under special circumstances, title transfers to buyer.
Such exceptions are as below:

1. If a principal has not a particular person being an agent but his conduct shows a particular person acting as an
agent. A third party deals with an agent. Contract is made between buyer and principal and principal will remain
responsible for the transfer of title. Law of estopal will come into operation to stop him in deviation.

2. A mercantile agent is an agent who has goods in his possession related to his principal. He can pledge goods with
the consent of his principal. If conduct of a principal shows a particular person as his mercantile agent, and third
party deals with an agent, title will be transferred and principal will face consequences.

3. There may be several joint owners in any business. They act as an agent of each other and can transfer title upto
extent of their share. If joint owners give authority to one joint owner and he sells property, title, which is acquired,
will be transferred.

4. A sell fan to B, under void-able contract, which is not known, to B at the time of sale, title will be transferred even
if contract becomes void. A is liable to pay damages to actual owner. B will not be responsible in this case.

5. A seller sells a thing to another person and receives price and buyer did not take possession and goods rest there
in shop or seller’s premises, it means possession is not transferred. Buyer should be very careful and he should, at
least, take the documents containing title. It is a general rule that law regards possession. As matter of rule, seller
cannot resell sold things. But if he resells and possession and title is transferred to third person, then law regards
possession and protects interest of possessor. However first buyer can claim damages, but he cannot acquire
possession.

Performance of contract is delivery of goods. If seller fulfills all the terms and conditions of sale agreement and
delivers goods to buyer as contractual responsibility. It is duty of buyer that he should accept the goods delivered to
him.

There may be concurrent sale, means delivery of goods and receipt of payment takes place in a time. In this instance
there is no breach of contract. But in many cases, breach of contract may take place like in instances of credit sale,
advance sale, sale in installments. If contract is silent regarding criteria of breach, then S. 32 will apply. Seller is duty
bound to deliver goods as provided in mutual agreement. Where agreement is silent whether where the goods are to
be supplied, buyer has to inform to seller whether where delivery of goods be made. If place of delivery of goods is
part of contract, then seller is bound to deliver goods at the requisite place. In contrast, seller is not bound to deliver
goods as buyer wishes, he is responsible upto the extent of his premises. Buyer cannot appoint another point to
deliver goods other than agreed.

Delivery of goods should be made as agreed in contract, otherwise reasonable time must be adhered. Seller is
responsible for loss, if occurs, if he send goods through his an agent for loss, if occurred.

Possession of goods placed in cold storage or god-own can be changed if change of possession is acknowledged to
cold storage’s owner.

Delivery of goods must take place within reasonable hours, if no provided in contract.

Unpaid seller: Unpaid seller is a person who has sold goods but buyer has failed to pay him price of goods. If bill of
exchange or other negotiable instruments dishonors, it also amounts unpaid selling. Goods sold on credit are not
covered under this section.

The seller of goods is deemed to be an “unpaid seller” within the meaning of this Act:

a. When the whole of the price has not been paid or tendered.
b. When a Bill of Exchange or other negotiable instrument has been received as conditional payment and the
condition on which it was received has not been fulfilled by reason of the dishonour of the instrument
otherwise.

In case of contract of sale, this situation does not arise, because contract is performed at spot. Passing of goods takes
place, property is transferred, title is transferred, possession is transferred, and consideration or price of goods sold
is received on spot. Since the performance of contract takes place, so matter of unpaid seller does not take place, and
he is converted into paid seller.

A sells goods to B, at Rs. 15,000/- A passes on the goods to B along-with transfer of goods, title, and possession. In
result of such transfer B pays Rs. 15,000/- to A. This is a contract of sale so unpaid seller is not created. But if B pays Rs.
5,000/- and withholds Rs. 10,000/- due to reasons unknown, it creates unpaid seller.

Rights of unpaid seller: Law gives following rights to unpaid seller:

1. In case, goods are sold, property in goods has passed on, goods are not delivered, and goods are lying at the
premises of seller, price is not paid, seller can establish lien over sold goods and can retain or stop goods until the
payment is received. Lien is retention of goods until the condition is fulfilled.

2. If the goods are in transit and buyer becomes insolvent then goods in transit can be retaken or stopped. Since
insolvent buyer can not pay the price of goods so law gives right to seller to retake his goods from the possession
of the buyer. U/s 11 of Contract Act, person of insolvent cannot enter into agreement until he attains solvency.

3. Seller, can resale the goods which have been retained or stopped.

4. Where property in goods has not been passed on, seller may resale the goods.

Rights of unpaid seller to retain or stop, property in goods in transit, ends if:

1. Seller sells goods to buyer and buyer resells goods to another person.

2. Goods have been reached to the appointed destination of the buyer.

3. Perishable items lying in cold storage are the bailment, and owner of cold storage acts as bailee, and holder of title
is referred as bailor. Owner of cold storage can retain goods on the behalf of buyer or seller, whatsoever situation
is.

4. Goods have been reached at the destination where they are liable to transfer but are not transferred, ends lien.

5. Goods are not delivered wrongfully to buyer.

6. Goods are transferred to another career wrongfully, ends lien.

How an unpaid seller can retain goods and what are consequences of retention:

1. Unpaid seller can take physical possession.

2. If career is acting on behalf of another, seller has to give notice to actual possessor or to his principal for not
reselling.

3. Reasonable time must be given to principal so that he may communicate the message to his agent.

4. If the goods of unpaid seller have been resold to third party or second party has pledged the goods, unpaid seller
can establish his lien over goods.
5. If A buy goods from Singapore and goods are sent through ship and ship is in transit, seller receives title
documents, can resale goods.

6. Reselling and/or pledge do not defeat the right of retention or stoppage.

7. If goods are resold with the consents of unpaid seller, the right of retention or stoppage becomes end.

8. Goods, which have been retained, are not liable to resell until a notice is served to buyer. In sale agreement
property in goods and title passes on. Simply retention does not mean right of selling. Retention only creates lien
over goods. If buyer is no more interested in payment of price, unpaid seller can resell goods after serving a notice
to buyer. If loss occurs from sale proceedings, unpaid seller can recover damages from buyer. Notice should be
served within reasonable time, as subject matter allows.

9. If unpaid seller sells goods without consents of buyer, buyer can recover damages.

10. Seller can sue buyer whenever he commits default in payment of price of sale.

11. If buyer refuses to accept contractual goods, seller may sue buyer for damages.

12. Buyer may sue seller for the recovery of damages where seller willfully or negligently refuses to deliver goods.

13. If taxes are imposed at the time of delivery, price will be increased and if taxes are decreased, price will be reduced.
Islamic Jurisprudence
Course Contents:

1. Sources of Islamic Law.

2. Islam and Criminal Law.

3. Islam and Civil Law.

4. Islam and Constitutional Law.

5. Islam and International Law.

6. Islamic Law of Evidence.

Sources of Islamic Law: Following are the sources of Islamic law:

Quran: Quran is the first source of Islamic law that is the last revealed book of Allah on Muhammad (SAW).

Definition: This is the Book which was revealed on Prophet Muhammad (SAW) through Gabriel which was narrated
to us in a continuos manner is recited in Prayers.

Written Law: Revelation is a first source of law that is available in the shape of Quran to us. This is in written form that
is never changed and Muhammad (SAW) is the first Jurist. Allah says, “he never say anything except reveled by Allah.”
Quran is divided in thirty equal parts and every part is called Para. Quran is a Book reveled in Arabic. Total verses are
6,666. It took 22 years, 2 months, 22 days, in revelation. Its revelation was started in the Holy Month of Ramzan. It has
different names, e.g., Al-Kitab, Al-Furqan, Hakeem, Mazhar.

Its revelation was started in Makka and that part of revelation is called Makki Verses. Duration of Makka is 12 years
and 5 months. They include adoration and beliefs. Second era is called Madni age and contains 9 years, 9 months, and
9 days. 22 verses were reveled in this period. These verses are generally lengthy and contain different Injunctions.

We claim it the greatest Book that came into writing since ever. It includes Oneness of Allah and Truth. Its language is
beautiful and pious.

Repealed Verses: There were some verses in Quran that were needed to be abrogated, e.g., verses regarding Will
were changed later with the proportions of heirs. Subsequent verses repeal the first one and supersede the earlier.

Quran is a law that is combination of permission and prohibitions described in Quranic verses. Obligations are those
performance of which is compulsory in nature and Mustahibs are those compliance of which is optional.

Traditions (Sunnat & Hadith): Traditions is the second sources of Islam after the Quran. Sunnat is the practice of
Muhammad (SAW), whereas Hadith is the saying of Muhammad (SAW).

How the Hadith is derived: All the conversations of Muhammad (SAW) are called sayings. Practice of Muhammad
(SAW) is called Amal and Sunnat. Silence: While the conversation of Companions, He gets silence that is also a Sunnat.

Difference between Quran and Traditions: Quran is a message reveled by Allah to Apostle through Gabriel whereas
Traditions are the sayings and practices of Apostle kept in mind of Companions. Quran never commits mistake and
never changed even after 1,400 year while the authentically of Traditions may be controversial. Quran is a source of
Orders while Traditions contain the methodology of the practice. Quran contains no contradiction while it cannot be
said in the case of Hadiths.
Consensus: It means to gather something. It implies the consensus of the Muslim Jurists on a particular matter relating
to current situation. It also means agreement of jurists on certain matter. Majority view, collective opinion, or general
agreement of jurists is called consensus. Jurists determine parameters/four-corners of dresses. It is very important
being the source of Shariat in Islam. If the Quran & Sunnah are silent on certain matter, then we shall seek toward Ijma
(Consensus).

If a matter arise whether wearing dress of Shalwar Suit is permissible in Islam then we shall seek toward Muslim Jurists
who shall resolve this matter by consensus. This is duty of Muslim Leader that he refers this matter toward jurists.
Every jurist is obliged to reply in response of query. If one jurist keeps silence, it shall means confirmation. All the jurists
are the successor of Apostle. All the solution made by consensus, made it order of Shariat.

Kinds of Consensus or Interpretation: Following are the kinds of consensus:

1. Explicit Consensus: It is a consensus or interpretation, which are clearly expresses.

2. Silent (Sakooti or Khafi) Consensus: If the jurist keep silence on a certain matter, it will be called silent consensus.

Arguments in favour of consensus: Once, Apostle deputed Maaz Bin Jabal as Judge of Yemen. Apostle asked him as
to how you would decide matters of people. He said, “I shall seek toward Quran first, afterwards in Hadith, and later
on consensus will be utilized.” Apostle thanks Allah.

Analogy (Qiyas): It means correspondence or partial similarity. It is a process of arguing from similarity in known
respects to similarity in other respects.

Once in a history alcohol consumption became popular in society. Consequently people indulged in quarrelsome. An
advisory council was constituted in the time of Hazrat Abu Bakr to decide the punishment of alcohol consumption.
There was an uncertain situation because the punishment was not mentioned in Quran. An Advisory Council looked
into matter and decided with the opinion of Hazrat Ali who advised that punishment of defamation towards pious
women, who could not produce four witnesses, are liable for the punishment of 80 whips/lashes. Since the wisdom
of drinker deadens and he becomes unable to use intellect and defame others, his punishment should also be 80
whips/lashes.

Maqees is called first matter that is to be resolved. Maqees Alaih is previous decision. Mohkam (New Decision): It is a
combination of consensus and analogy. New solution is derived from old one.

Characteristics of Narrator: Narrator must possess certain qualities in order to give binding force to his narration such
as:

Companion: A Muslim who has seen Apostle himself in his life, met, learnt his conversation, and seen while practicing
obligations, he is called companion.

Successor’s Companion: Muslim who has the qualities of companion with the difference that he has seen successor
companion despite of Apostle.

Followers of Successor’s Companion: He is one of those who neither seen Apostle nor companion, but the successor
of companion.

Competency of Narrator: He should be Muslim, Wise, Sane, and having sound memory.

Shariah Contain five (5) Points: Such five points are as follows:
1. Deen: Islam is our Deen. It is a way of life. Protection of Deen is important to survive in the world. Every child who
born is Muslim. Parents make him Christian or Jew. He adopts the religion of his parents, later. Islam was opened
out free will and choice of the people who were inspired from Islam.

2. Ja’an (Nafas) Mind/Life: Existence of life is compulsory. Importance to life is given as “One who kills one life, kills
the entire humankind and one who saves one’s life, saves life of entire humanity.” For the sake of life, the use of
prohibited stuff may be allowed to eat in certain situation. Alcohol consumption is not permitted, but in certain
events it may be permissible. Theft is not allowed in normal circumstances, but in starving it is relaxed.

3. Sanity (Safety of Wisdom): Do not adopt the games that reduce the wisdom. Alcohol consumption is prohibited
in order to protect wisdom.

4. Race: It is also allowed to protect.

5. Property: It can be created and protected with the conditions of Islam. Interest, theft, bribery, dumping etc. are
prohibited.

Penal Code of Islam: Islam has defined wrongdoing and their punishments. There are three types of punishment, e.g.,
Hudood, Taazir, and Retribution and Blood Money punishment.

Hudood: Hadd means a thing that discriminates between the two one. Extreme is also called Hadd, e.g., Hudood-ul-
Haram, Hudood-ul-Allah etc. All the discriminations that show the legitimacy or forbearance of things are Hudood.
Hudood punishment are those that fixed by Allah & Apostle. It also includes details of crimes. We have not authority
to increase or decrease in these punishments. These are fixed for all classes. These are also called crimes of fixed
punishments. Judges are not allowed to discriminate anybody while convicting or punishing.

Taazir: This term is used in penal system for those crimes, punishment of which is not fixed by Shariat and remained
on the discretion of the judge according to the magnitude of offence. Taazir punishments are imposed where the
Hudood punishments diminished or not available then judge may impose fine and other punishment, too.

Retribution (Qisas and Blood Money): It has resemblance with Hudood and some of jurists count it in Hudood. It is
also fixed punishment. There is discrimination in Hudood and Retribution and Blood Money. Hudood are not
compound-able while Qisas is compound-able.

For example, murder has fixed punishment but it is compound-able.

Hudood Crimes: Hudood crimes are seven in number. List of crimes is as follows:

1. Theft.

2. Alcohol Consumption.

3. Adultery.

4. Dacoity.

5. Mutiny.

6. Slander (Defamation).

7. Apostasy.

Now we shall discuss Hudood Crimes in detail little more:


1. Theft or (Sarqa): Possession of other’s property, secretly, and without permission is called theft. It is dispossession
of one’s property. There is two types of property, i.e., moveable and immovable property.

Theft is committed with moveable property. Theft has two kinds, e.g., theft liable to Hadd and theft liable to Taazir.

a. Theft liable to Hadd: If an offender (wise, sane, and adult) dispossesses anybody from his movable property
without his permission, secretly with ill will intention, he will be liable of Hadd.

b. Theft liable to Taazir: It has two kinds, i.e., which has resemblance with Hudood but do not’ fulfill are the
requirements of Hadd and excludes due to doubt and comes under Taazir. For example, dispossession of
relative secretly. Second kind is that in which dispossession occurs but not robbery and running away.

Amount of theft that constitutes crime is 4½ grams gold or equivalent. It is liable to Hadd. Thief is liable to amputation
of hand upto wrist. Quantity less than 4½ grams gold does not constitute an act of crime but comes under Taazir. If
theft takes place between relatives, e.g., father and son, husband and wife, it will not constitute an act of crime on
the base of social relationship. Theft of edibles, forbidden articles, i.e., musical instruments, wine, pig etc. is not an
offence.

Where Hadd is not imposed: In certain matters Hadd is not applicable such as:

a. Theft is committed negligently.

b. Theft is committed under the state of compulsion.

c. Two witnesses are not produced.

Conviction is proved by evidence of two witnesses and by confession. Punishment of theft is amputation of hand upto
wrist or shoulder.

2. Alcohol Consumption or Drinking: A particular liquid that gives intoxication, deadens intellect or wisdom in case
of over-dosage. It is forbidden even in little quantity. It was popular in Arabs in Pre-Islam era. Quran has used word
Humur. How it is made: It is prepared from grapes, dates, wheat, orange, and sugarcane etc. These things are put
into earth in a vessel for six months. They come out and boiled and processed. Its intake/consumption/drinking is
prohibited.

Factors that constitute the drinking offence: There are two factors, i.e., Intake of wine and ill will.

Drinking in case of negligence, mistake, preservation of self, do not constitute offence. Alcohol was prohibited
gradually. It was first described that it has some gains and some losses and amount of loss is greater than its gains.
Later its intake was prohibited on certain occasions, e.g., at the time of prayers or adoration. At last it was claimed
an act of Satan and entirely prohibited. Now is should not be taken at all.

To constitute the offence two witnesses are compulsory. Also smell, state of drinking, and confession constitutes
offence. Upon the conviction 80 whips will be inflicted. Wine can be administrated to patient if doctor prescribes.

Hip is the place where whips are inflicted. Vital organs should be avoided in infliction of the punishment.

3. Dacoity or Haraabah: It is defined in PPC as threat of looting by five or more persons, on public way/road,
obstruction, with intention, is called dacoity. Party has ability to use power, obstruction the public way with
intention of robbery, in which murder may take place upon resistance, is dacoity. As per Hudood Laws when any
one or more persons whether equipped with arms or not, make show of force for the purpose of taking away the
property of another and attack him or cause wrongful restraint or put him in fear of death or hurt such persons,
are said to commit ‘haraabah’.

Elements that constitute the dacoity crime: Following are the elements, which constitute the dacoity crime:

a. Accused must be armed so that passerby may not compete with them.

b. Offence takes place at the place where victim may not resist or seek toward assistance.

c. It takes place in Islamic State.

d. Dacoit should no be relative to the victim.

e. He should be sane, wise, and adult.

f. Offender is Muslim.

Two witnesses or confession is sufficient for conviction.

Dacoits must be killed, or crucified, amputation of right hand from wrist and left foot from ankle, i.e., from
opposite direction. It is upto the discretion of judge whether what punishment matches to the offender. If only
public way is obstructed, but not loot or murder takes place, then only amputation of hand will be imposed.

4. Sedition: It creates mismanagement, disorder, and disorganization. It is a crime against lawful government. It is
liable to Hadd. Definition: When an unlawful assembly acts against lawful government to pull it down is called
mutiny. Mischief is more dangerous than of murder. Since the sedition is great mischief in which Muslim does kill
Muslim. Abu Bakr said, “follow me if I act rightly and if deviate from right path, then set me right.” Illegitimate
government is against the spirit of Islam. Sentence of mutiny is death penalty.

Mutiny is committed against the ruler, by force, and ill will. Quran says, “A O Believers, follow the orders of Allah
and Apostle, and other who are government officials.”

If rulers of an Islamic State give order, which is contrary to Islam, then mutiny comes udder compulsion.

Mutiny is punishable upon the evidence of two witnesses and enquiry. They are liable to be killed.

5. Apostasy: It means deviation/expulsion from Islam after conversion. There are two types of Muslims, i.e., Muslim
by birth and Muslim by conversion. If anybody deviates from Islam will be called apostasy. Apostasy is constituted
by three way:

a. By practice which is contrary to Islam.

b. By verbal statement which is contrary to Islam.

c. By faith or belief which is contrary to Islam.

Two witnesses are required for conviction. It is liable to Hadd. If there is no declaration of apostasy but acts are
against the spirit of Islam, is apostasy. Day of judgement is imaginary is also apostasy. Pinching of mind is Hell
amounts apostasy. If one affirms non-Muslim is also apostasy.

Punishment is death. Child and insane are exempted. Divorce takes place automatically. Everyone should evade.
Inheritance is revoked.
6. Adultery: When two opposite sexes, who are wise, major, and having no legal relationship, commits intercourse,
is called adultery. As per Hudood Laws it means a man and a woman are said to commit ‘Zina’ if they willfully have
sexual intercourse without being validly married to each other. Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of Zina.

It is a crime that is committed against one individual, but actually it is committed against the whole of society.
Retraction in adultery is encouraged.

Adultery is liable to Hadd: When a person commits an act of penetration to the woman other than his wife, it is
adultery liable to Hadd. Illegal intercourse committed by force, mistakenly, and kissing is not liable to Hadd. Insane
person is not liable to punishment. Insanity is of two kinds, i.e., permanent and temporary insanity. If a woman
commits illegal intercourse with insane, then woman shall be liable to Hadd.

Three ways, i.e., evidence, confession, and presumptions or circumstantial evidence can prove adultery.

Four competent witnesses prove an offence. Witness must be adult, and sane. He must not be dumb, insane,
singer, and drinker.

Punishment: Married offender is liable stoning to death. 100 whips are inflicted to unmarried culprits.

7. Slander of woman: It means imputation of un-chastity to woman or girl. Three elements constitute an act of
slander, i.e., imputation or disregard, piousness of woman, and ill will. Witnesses and confession can prove this
crime. At least two witnesses are required. Eighty whips are inflicted upon conviction.

A selection criteria in all four Imams was different. Islam is not only a combination of adoration, but also it is
concerned with our social system. Islam does not maintain separation between Mosque & State. It is combination of
both. Concept of separation directly or indirectly comes from Church where the adoration of Sunday wipes the sins of
all of the week. Decision that I will never marry, always fasting, always standing in Salat, is un-Islamic. Constitution is
not required in the presence of Quran. What thing makes constitution? Social system, basic human rights are clearly
stated in Quran. Quran conforms the definition of constitution. It also states the Sovereignty belongs to Allah. He is
the only Ruler. He is the Supreme. He is not answerable but we all are. We have to follow the Quranic injunctions. How
the Head of the State will be elected or selected? One who is popular and pious. Refugees are preferred on resident.
They have sacrificed their relatives, wealth, property, and particularly their nation. Hazrat Abu Bakr was appointed as
Leader in Salat/Prayer. There was general consensus for his Leadership. At the time of Hazrat Umar, a committee was
constituted to choose Leader among them. This is also called selective democracy. A general election was held at the
time of Hazrat Ali.

In modern time an Islamic State may come into existence. Qualification of voter and candidate must be fixed.
Proportion candidature system may be adopted. It is also adopted in France successfully. Under this system votes are
not casted to candidates, but to the parties. Merit is followed rather than personality. In this system votes are not
miscalculated or misapplied. System of Technocrats may also be adopted. Many eminent people cannot contest
election. They may be choosen under proportionate candidature system. Basic democracy is also a system.

Advisory Council is crux of Islamic System. Islamic system is incomplete without advisory council. Council decides all
the matters in Islamic State. State is bound to accept advises of counsel. All the orders, which are contrary to Islam,
must be refused.

Before the Uhad war, all the companions were called in Mosque Nabvi to decide the method of war against infidels.
Opinion of some was to fight within city and other was in favour of fight outside the city. All were agreed to fight
within Madina. It has lesson of cooperation while deciding the important matters of the State.
In the time of Hazrat Abu Bakr, some people refused to pay Zakat saying that Apostle has been died and order relating
to Zakat has lost its importance so it cannot be fulfilled in his absence. But he said that all orders have been diverted
towards present Leader of the State and war must be held against those who have denied it. Advice of council was
rejected in this instance.

Iran and Saudi Arabia are the examples of an Islamic States. This system does not exist so it troubles in understanding.
It seems utopia that is not related to real. Methodology of selection is not a matter. Objectives of an Islamic state are
important. Present system needs to be Islamized. All systems are un-Islamic rather than the concept of sovereign of
Allah. Democracy or Martial Law may be modified as an Islamic system. Advisory system is an integral part of Islam.
State nominations may also be allowed. Parliament may exercise consensus. She can interpret Islam. Islam is a
complete code of life. Bifurcation among organs was not maintained. Later it was separated. Prime Minister,
President, Ministers, Governors, are not immune under this system. Leader of the state may be called in courts.

Islamic System of Evidence: Claims are not acceptable without evidence/proof. Even one person has stolen a bike and
occupied, he will be presumed owner until contrary is proved by evidence. Responsibility/onus of proof lies on plaintiff.
Defendant is only responsible for swear.

1. Eye Witness: This is authentic proof. Numbers of witnesses in Hudood cases are two. Accused is convicted upon
evidence. Evidence by five senses: Perceive: It is perceived that offence is committed by a particular
person. Smell: It is also a sense that provides evidence. Sight: I know that it was happened before
me. Hearing: Not seen but listen from elsewhere. Taste: It is feelings to touch something.

2. Documentary Evidence: As per Quran it is authentic evidence. It is used particularly in debt cases. It is order of
Allah that all debt/fiscal matters should be written and dictated and dictation should be given by borrower. If
dispute arises then it will provide proof. It further makes it fool proof with the sanction of two male witnesses or
one male and two female witnesses.

3. Circumstantial Evidence: It is a evidence which is derived from circumstances. It is perceived from clothes, papers,
knife, blood etc. It is not acceptable in Hudood and Retribution Cases. It is accepted in Taazir cases.

4. Hearsay Evidence: It is the evidence based on the circumstances not listen directly but indirectly. It is also not
reliable. Benefit of doubt always goes to accused.

5. Confession: It is strong evidence. Accused himself admits his offence. After accused has confessed, no more
witnesses are required. Evidence against self is injunction of Quran. There is a condition on confessor. He must be
major and sane. Child is not capable for confession. His confession is not binding for courts. Age of majority for
girl is 12 year and 13 years for boy.

Who is competent for Evidence: Following persons are eligible for the purpose of testifying the truth in Court cases:

1. He must be able to perceive or observe about which he has to affirm before the Court of law. He must be able to
read and understand document or the incident.

2. He must be able to retain his observation in his memory so that it may be given as required.

3. He should have capacity to reproduce the object he has retained in his memory.

4. His sight should be clear so that he may look and recognize as that is.

5. Physical fitness is also essential for witness.

6. His character must be sound. Person bearing loose character is not reliable.
Blind is incompetent to give evidence where sight is important and object has to be recognized.

If witness has lack of senses where it is necessary then he will be disqualified.

Deaf is incapable to be witness where hearing is compulsory.

Dumb cannot express himself in normal way. So he is no reliable. Some of sages claim him as qualified but most
of them deviate.

Characteristic of Sound Character: Sound character must possess following criteria:

1. He must be practicing his duties imposed by Islam.

2. He must refrain or abstain from mortal or major sins. It does not mean trivial or minor sins are allowed but
importance goes to mortal sins.

3. He must be good in his all particularly personal matters.

How Court determines the qualification of witness: Court takes into consideration the following criteria to determine
the qualification or credibility of true witness:

To shake/check the credibility of witness lies on Court as to how it is to be determined.

He is also to be assessed by the cross examinations/questions.

A secret/intelligent system may be established to determine the qualification of the witness.

Woman as a witness: Whether she is competent? She has three statuses as follows:

1. She is incompetent to produce evidence at all,

2. Both, male and female, are equal in evidence, and

3. Cases in which only female are competent and not male.

1. She is deprived from evidence being not pleasant job for her. While producing evidence, she is simultaneously,
trying to enforce or impose punishment on one party. There are so many matters in which production of
evidence is most important, like, fiscal, financial, civil, criminal etc. Woman is regarded most respectful being
of the society. She has privileges over male. Mother is source of paradise under her feet. If a man up-brings or
nourishes two of his daughters, he will be allowed to stand with Apostle in the day of judgement. Apostle had
spread his cloth on arrival of female. Islam does not like to indulge her in the unpleasant matters of evidence.
Domain of woman is home. She is Queen of home and home affects when she leaves it. Disturbance may
occur. Mother is responsible for nourishment of her descendants/off-springs. Court matters may cause delay
in discharge of her duties at home. Evidence may involve travelling. She is physically weak and repeatedly
presence of her in Court may affect her soft passions. It may bring inconvenience for her. Woman is not half,
as it is said. Male and female, both are equal. Presence of second woman in evidence is just for reminding
purpose. She is exempted in Hudood cases. It is time consuming job. Her deprivation minimizes infliction of
Hadd.

2. In Taazir cases, both male and female witnesses have equal status. She may produce evidence in all civil and
criminal cases related to Taazir. Male has not superiority over woman.

3. There are many matters in which only woman is competent to produce evidence. Respect goes to woman.
Matters relating to reproduction or delivery are proved on the evidence produced by woman. Only she knows
the actual relationship. This evidence is important in inheritance, marriage, property etc. Here male is deprived
from evidence.

Fosterage depends on woman’s evidence. Breast feeding changes and enhance relationship. To determine,
minority or majority of young girl, depends on woman’s evidence. In these cases other woman, who is not
subject in these cases, is required to produce evidence.

Why woman is incompetent as witness in Hudood Cases: There are many reasons that restrict woman from producing
evidence in Hudood crimes. They are related to emotions, physical fitness, memory, personality etc. Here is some
detail as follows:

1. Minimum enforcement: Deprivation of woman from evidence in Hudood crimes minimizes the enforcement of
Hudood. Shariat does not like to make people of society as ineffectual/futile persons, so if woman will not come
to Court for evidence, offence will not be proved and accused could not be convicted. So Hudood’s enforcement
will be lessen.

2. Benefit of doubt: Enforcement of Hadd is dropped in case of doubt if arise. Deprivation of woman’s evidence
makes it easy. Benefit of doubt always go to accused and deprivation of woman is source of this object.

3. Vindication of accused: Accused is acquitted where woman is not produced as witness.

4. Weak: Woman is the person with weaker body and if there is travelling involved in evidence, she is affected badly
as she is Queen of Home and not glamorous person of the Company.

5. Unbalanced personality: She does not bear balanced personality. She is not balanced in her emotions. She is
extreme in love and war. Her passions can be exploited easily in the conviction of innocent person, who is not
guilty of offence, he is charged for what.

6. Area of activity: As she is Queen of Home, she is also exempted from discharge of adoration in Mosque. She
should live and work in home. Her care to home eliminates the production of offenders, and contrary produces
the offenders.

Islamic Civil System: Islam is not the religion of just adoration. It focuses to practices. Islamic civil system is as
important as criminal. It has formulated rules and regulations. It has formulated guidelines how the property is
acquired. There are two concepts of economy, i.e., Capitalistic system in which acquisition of property is unlimited
without any restrictions and second one is Socialistic in which private property cannot be maintained at
all. USA, UK, France represent capital system while China, former USSR are representative of Socialism. Both systems
have their merits and demerits. They can be discussed as follows:

Capitalistic Economic System provides free competition. This factor is the key of the system. Mill Owner wants
maximum output. He not only acquires benefits for himself, but he is source of benefits for others in term of
employment. Competition factor is key of quality products. He may possess profit what he earned. Profit is the
motivation, provides encouragement in maximum production.

Besides merits of capitalism, there are certain demerits of this system. The most common defect is exploitation. One
who has scarce resources remains poor forever. He cannot get share in profits that are gained through their labour.
There is gulf between poor and rich. Poverty and richness simultaneously moves in opposite direction. Poor remains
poor while rich become richer. Concentration of wealth is hindrance in circulation of wealth that is blood of any
economical system.
Socialism does not recognize private property. There is no ownership in it at all. No body can make or acquire home
for residence. There is no share for labour in profits. They have to work as component of machine at flat rates. They
have no concern whether company goes to deficit.

It has shortcomings as well as qualities. Labour class indulges in laziness being the deprived from share in profits.
There is no ownership at all. All property is owned by the state. People do not exploit each other. Both capital and
labour are divergent.

In spite of all other systems, Islam gives us balanced economic system. There is neither limitation on the acquisition of
property nor unlimited freedom. There are certain restrictions on people. Although unlimited property may be
acquired but there are some taxes that are levied by Allah. There is Ushr on cultivation @ 1/10 th on rain-irrigated land
and 1/20th on artificial irrigated land. 1/10th tax is levied on trade while 1/40th on assets like gold or silver. These taxes
circulate the money and assets. Also Islam inheritance system restricts concentration on wealth. Islamic economic
system has more or less, resemblance with both, capitalism and socialism.

Ownership includes existence or tangibility and benefits derived from it. Ownership completes when both ingredients
are met together in a person. It is called exclusive ownership and lack of one ingredient makes it defective ownership.
If I have a pen and give to Ali produces defective ownership for both of us. I have ownership of pen but Ali enjoys
benefits. If I possess and get benefits of pen, then I would have exclusive ownership. Rental homes is also example of
defective ownership on the part of owner and tenant.

How the exclusive ownership is acquired and lost. There are three valid methods as follows:

1. Agreement is the way of acquisition of ownership in which one party sells its rights to other one.

2. Inheritance also transfers the ownership after the death of owner.

3. Gifts can be transferred from one to anther.

These are three ways, which not only used in acquisition of exclusive ownership but also lost at same time. There is
another method of acquisition of exclusive ownership, i.e., theft, bribery, illegal possession etc. but these methods
are illegal and prohibited by Shariat. Prayer can not be offered wearing the clothes stolen.

Agreement or Sale – Purchase Contract needs some important ingredients. A person who is going to enter into
contract must be adult and wise. He must attain age of puberty before entering into contract. There must be minimum
two parties and there is no limit on maximum parties. A person cannot make an agreement with self. I cannot buy
sweater from myself.

There are some exceptions in contract making. Insane and minor may make contract with some conditions. They may
make contract that extents at lower consideration and this contract must cover only life necessities. Going up to bus
is a contract. Bread buying is also a contract. These are necessities and every one regardless his age or before attaining
the age of puberty and this may also be repealed after attaining the age of majority. This is upto party whether they
want to ratify or revoke it. There is another exception that insane cannot enter into the contract of marriage. There is
neither divorce nor probationary period on the part of female partner after revocation of marriage contract after
attaining the age of puberty. Both parties must be Muslim if contract is made for marriage. Muslim male may marry
with women of people of the book.

There should must be subject matter for which contract is made and it must be permissible. Prohibited items cannot
be allowed as subject matter. So there will be no agreement for wine, pig, and musical instruments. Subject matter
should be present at the time of contract, i.e., offer and acceptance. In its absence contract cannot be made. So
contract for the birds flying in air, fishes in deep water of sea, and for those animals who have been escaped from
their master, cannot be made.

Advance: There are some agreements that can be made in the absence of subject matter in advance. The things which
to be manufactured at the time of contract, can form contract. A carpenter, who can make table but is unable to make
it due to non-availability of sufficient funds involved in it, may enter into contract in the absence of subject matter. A
person who has money and need table, but cannot make it self, can enter into contract with carpenter. Goldsmith and
blacksmith may be made contracts without presence of subject matter.

A contract in which possession is made first, and payment is made later, after investigation, can be made. Maximum
investigation period is three days. Rent according to prevailing market rate, is applicable for the investigation period
if the subject matter is not purchased and returned after investigation and not applicable if it is purchased and paid.

Restriction on government officials: Officials, who are made responsible to run the matters of government, are
restricted to acquire ownership and easement of certain things.

1. Ownership of house was strictly prohibited. Maintenance of home could divert the intention of officials to carry
on their responsibilities.

2. Use of Turkish horse was strictly prohibited being the luxury and contrast to obligation.

3. They were not allowed to have foodstuff which was not available to people. They were bound to use unrefined
flour being the available item to the people. Majority could not use refined flour.

4. They were not allowed to acquire the services of servant or gatekeeper so that every complainant may approach
them.

5. They were fixed rated officials and are not allowed to indulge in trade or business so that they may discharge their
responsibilities diligently. Other sources of income were strictly prohibited.

In the vicegerency of Hazrat Abu Bakr, he got some cloth over his shoulder to sell and earn, but he was strictly
refrained by government to do such job. He had monthly grant or scholarship.

6. They were bound to wear simple dress. Once a time Hazrat Umar made and wears long shirt, but he was called
explanation and he answered that objection while the interval in general address to people.

Only government officials had to follow the following injunctions and subjects were exempted and allowed to enjoy
all these prohibited items.

Islamic international Law: Is Islam allows to its follower’s war? Is it conditional? Is it carries some objectives? Islam is
a totally different way of belief than made by man. Islam is God made way of life. It carries meaning, sign, and
objectives in all its injunctions. War is one of them and objectives are not excluded from it. Islam is revealed way of
life. Its compliance not only discharges us from religious obligation but official duty as well. It is also adoration. It
carries reward or SWAB. Islam focuses on humanity. It also can be seen in battlefield. Just war is nothing if carries no
objectives. It is not allowed for extension of boundaries, not for making free people slaves, and not for the purpose
domination or colonies. It is only the tool to extend the Name of Allah to the world or to support Islamic civilization.
Most of wars, in Islam, were defensive and not offensive. It does not mean that offensive wars are not permitted. If
there is violation of human rights, then offensive war is became legal obligation of Islamic State. Makka war is one of
the examples of offensive war. Islam does not allow Muslims to cross limits in war. It imposes duties during wartime.
Islam forbids:
1. Killing of women, if they remain peaceful.

2. Children.

3. Aged people.

4. Transgression of limits.

5. Devastation of corps.

6. Destruction of buildings or houses.

7. Ruin of gardens.

8. Killing of animals.

9. Arson of public places.

Islam teaches us to be ready for war during peacetime. Let provide force physical and human resources. Killing of
animals is allowed where they are used to fight, like horse, camel, elephant etc.

Prisoners of war (POW) are detained. Oppression upon them is not inflicted. They can be set free if they teach our
uneducated dwellers. They can be utilized maximum. Prisoners of war (POW) either male or female can be made slaves
and maid.

More than one maid can be given to one of fighter. Booty obtained while war is distributed among the fighters. It is
divided in five parts and one of them is deposited in finance department and rest is distributed as described earlier.

Booty obtained without war is also dealt as booty obtained while war, described as earlier.

Capitation tax is levied on non-Muslim residents. It is used to protect their lives, honor, and goods. Its fixation is
decided case to case, as per capacity of the individuals.

Land tax is imposed on occupied agricultural land.


Law of Torts
Tort does mean everything, which in the eyes of law is wrong and requires remedy, so it is also called remedial law.
Tort is a law of damages.

If someone commits crime against anybody, law-enforcing agency arrests him and gives him punishment upon the
proof of crime, but what is remedy to victim? Where there is conflict there is need of law. Law is a formula to decide
something. Every wrong has remedy. Where there is wrong there is remedy. Law is a codified commonsense. Rights
and duties make law, while offer and acceptance form contract.

People who obey the laws are called social and who violate the laws is called anti-social. Right is an interest that is
recognized and protected by law. Law becomes angry upon committing of wrong or crime. Law came into force when
the right of another is violated.

Violation against state is called crime. Breach of contract and violation of right of person involves remedy. Contract is
a story between two private parties.

Upon the committing of the wrong, remedy is determined by the Court that may be unimaginable. In the age of non-
civilization there was self-help remedy on civil matters and private vengeance upon criminal matters. This practice was
abandoned upon the process of civilization. In criminal law state is a party and the case is tried between accused and
state.

Damages are of two types, liquidated and un-liquidated damages. Ubi jus ibi remedium – Where there is wrong, there
is remedy.

Definition – Salmond: Tort is a civil wrong, independent of contract, and remedy in the form of un-liquidated
damages. John Locke: Crime is an ill bargain to the offender.

Expressed term part of the contract. – Implied term part of the contract.

Principles upon which contract is moral infringe. When a single person is affected, that is tort, and if society is affected
that is crime.

Crime Offence Wrong against State

Tort Wrong Offence against person

Tort is separate from contract. We have duty to pay respect of the right of another.

Winfield: Tortuous liability arises from the breach of duty; primarily fixed by law; this duty is towards persons
generally; and its breach is redress-able by an action of un-liquidated damages.

Tort has three kinds: Intentional torts, torts of Negligence, and torts of strict liability.

Some torts are actionable and some are not actionable. All the torts, which are against the public and all the torts that
are against the person that are non-actionable and require something-extra proof of damage. Trespassing is also a
tort.

Define torts and distinguish it from crime and contract: In contract damages are liquidated and in crime punishment
is given rather than damages. In tort damages are un-liquidated. S. 95 of PPC says acts causing slight harm are not
crimes. Torts are also known as trifles. De minumis non curat lex, small wrongs are not torts. Maxim means saying,
principles, famous, and used in law sentences are called maxims. Where there is violation/wrong there is remedy.
Equity will not suffer a wrong to be without a remedy.

Some agreements are not legal, i.e., conspiracy, dirty, sex, evil things etc. There is not case on dirty cause.

Plaintiff has three choices, i.e., legal right, violation, and remedy. Law is not to be taken in our own hands. PPC 99 and
82. Law is story between two neighbors. Object of law is to put the people in law. Law is made to control the people.
In tort act is seen rather than motive and malice. Where is continue series of negligence, there is not tort.

Violation of legal right is called injury. Licensee is meeting without business and Invitee is the business meeting.

Who cannot sue? Convict or felon, Bankrupt, and. Alien Enemy. Normally torts are related to person, property, and
defamation.

Forfeiture Act, 1870, CPC 83. Criminal Justice Act, 1948, now property can not be forfeitures, Transportation of life,
imprisonment for life (imprisonment till death), is also prohibited.

Nulla peona sine lege (Nobody can be punished without law). Necessity knows no laws. Court is the agency of law.
Forfeiture Act, 1970 was abolished with Criminal Justice Act, 1948. Crime + Punishment = Innocence. 21 States have
abolished the death sentence in USA.

Husband and Wife: Courts were pronounced wife as husband. Unmarried woman is called feme sole and married
woman is called feme covert. It was assumed that woman has been merged into man and became the body of man,
so she has lost her right to sue against her husband.

Under The Married Women Act, 1882, S. 12, Women became the master of their property and then under Law of
Property Act, 1925, married woman can acquire, hold, and dispose of property as she is unmarried.

Law Reform (Married Women and Tort Feasors) Act, 1935, according to which it was decided that whoever will
commit wrong against each other, will be responsible and can sue and can be sued. Latest development was made
under Law Reform (Husband and Wife) Act, 1962, husband and wife can sue each other.

Corporation (legal fiction) does mean association of men who make one. Object may be there so that punishment
may be given. Law is a caretaker of the interests of the people. This is a body of people that incorporated according
to law. Corporation is an artificial person. Person is a subject of rights and duties, and we are natural persons. Natural
person has a blood, can be imprisonment. False imprisonment means illegal detention. Person become major at the
age of 18 years, but Corporations became major at once. Now Corporations can sue and can be sued each other.

Vicarious Liability: When a person held responsible against the wrongdoing of others, it is called vicarious liability.
Company is responsible of the wrongdoing of its employees within the course of employment, because they were
committed for the interest of the Company and also Company is rich than of individual. Servant is the person who
draws the salary in order to obey the orders. Relationship occurs Master and Servant. Servant is defendant No. 1 while
the Corporation or Company comes later. Damages will be borne by the Company because she is rich.

Intra Vires means internal while Ultra Vires means external. A Station-Master was checking the tickets of commuters
of the rail and he found one of them with horse. He had ticket for him but not for his horse. A Station-Master arrested
the owner of the horse. Held Ultra Vires because he was not authorized to arrest master because he had ticket for
him. If any person who has ticket for him and not for the luggage, only the luggage will be kept despite the owner.

Trade Union: It is a legal association and can be made friendly for the purpose of trade etc. Union was allowed to sue
earlier. In 1901 House of Lords, held, that union could be sued in tort cases. The Trade Dispute Act, 1906: Trade Union
cannot be sued in tort cases but may be sued in personal torts. The Trade Disputes and Trade Unions Act, 1927, was
passed, in which held, that if government servant suppress/oppress, then tort action will lie on him. Now a Trade Union
can sue and can be sued. It shall have perpetual secession and a common seal. U/s 14 of Industrial Relations Ordinance,
1969, held, now a Trade Union is like a legal entity for suit purposes. Now Trade Union can sue and be sued.

Child or Minor: A child can be sued, and damages will be borne by his parents. A child and person of unsound mind
can sue for tort by next friend, e.g., parents. Order 32, Rule 1 CPC.—Every child can sue through next friend. A unborn
child was not allowed to sue. In Canada in 1930, a mother was injured while she was pregnant, she claimed damages,
but at birth of her child, he was not allowed for suit. A child who was injured during in womb, born in clugfeet, this
birth was due to an accident of mother, mother claimed damages, and after birth of child he could claim damages. In
1976 law was passed. Child can sue after his birth. Congenital Disabilities (Civil Liabilities) Act, 1976. The Fatal Accident
Act, 1846. A child could recover the damages of his died mother after his birth.

Alien Enemy: He is the person against country is at war. He can not sue but upon case of defamation he can sue after
getting approval from the state department.

Insolvent: Law deprives him to sue in the Court of law.

Lunatics: Since he can not understand the matters of law so he is deprived.

Who cannot be sued: Following are the persons who cannot be sued:

The King (Crown): King cannot be sued because the King can do no wrong. He establishes everything. He is foundation
of the justice. Once a time there was a war between king and people and people won it. The Crown Proceeding Act,
1947. Now the size of king and common person became equal. Size of king has been brought down to the level of a
common person. S. 2 of CPC, now government can be sued. Now they can sue officers, but damages will be borne by
them personally. King can sue and be sued for the torts and others wrongs committed by his servants (Vicarious
Liability).

The King will be liable for breach of statutory duty. Article 174 of Pakistan Constitution, 1973, President is responsible.
S. 9 of CPC the Crown will not be liable for tort relating to a postal packet. S. 10 Wrongdoing by army caused during its
army action etc. will also be exempted. S. 40(1) Queen shall not be personally liable for the torts committed.

Foreign Sovereign – Ruling Chief cannot be sued. They are privileged class. If they have consent then they can be
sued. S. 86 of the Code of Civil Procedure, Extra Territorial Jurisdiction: Extradition. Article of 248 of Pakistan
Constitution says that Executives can be sued in civil matters. § 86 and 87–A to be studied.

Ambassadors cannot be sued, Government Servants also.

Defences in torts: There are 15 different general defences in tort that can be fit in all types of torts.

Definition: A defence is a shield to protect the defendant. There is another type of defence that is called particular
defence including defamation and negligence. Particular defence cannot be fit in other torts. The Pakistan Penal Code,
1860, from § 76 to 106 include general defence. Although they are concerned with crimes but exceptionally they may
be used in torts.

1. Volenti non fit injuria maxim applies where plaintiff gives his consents to do certain thing. If he has given his
consents to enter in his property, then no tort will be constituted but if defendant commits theft after getting
permission to enter in property, then it will constitute tort.

Events or games that involve risk do not constitute tort. There is possibility of injury in boxing, car racing, foot ball,
hockey, cricket, horse racing, cycle race, while playing or watching, if consents are free, then no tort commits. In
a case of Smith – v – Baker, Smith was an employee of Baker. He was engaged in working of stone cutting where
a crane swung heavy stones over his head. He was drilling the rock face in the cutting. He knew risk that heavy
stone might fall as well as to his employer Baker. There was no preventive warning against risk. Plaintiff injured
when a stone fell down upon him. Where there is a risk factor and due care is not taken, defendant is liable.

Maxim Leave and License is applied in property cases where consents are free.

These maxims are not applied in the case of:

1. Consents are not free or under coercion.

2. Where there is negligence on the part of defendant.

3. Rescue operations or cases.

2. The Act of State: State is a corporation and artificial person. It is a source of power. State acts through its agent
or servant. The servant’s act is the act of master’s act. A maxim is provided in this regard Qui facit per alium facit
per se means one who gets acted through servant, supposed acted himself. An act of state is an act that is done
in exercise of sovereign power against an alien. As per English law, one who is not the citizen of UK is alien and in
case of tort against them, they cannot sue being alien. It is a pure matter of FORCE or TERRIRORISM. An act of
state includes:

1) Tort of state against alien, is act of state;

2) It is done by agent of government or servant; and

3) An act is authorized earlier by the government or if not it is ratified later on spot.

Buron – v – Denmuan, some owned slaves were released by the commander of Royal Navy, held, that no action
will lie because it was an act of state. Slave is not supposed a person. A person is that who has rights and duties,
so slaves are considered commodity. There is difference in resident and alien and different conduct is applied.

There are three ingredients in this type of defence, e.g., it should be against alien, it should be through the servant
of the state, and such act should be within the lawful authority of the servants, if not it may be ratified later.

3. Judicial Acts: The Judicial Officers’ Protection Act, 1850, says that no action lies against a judge for acts done or
words spoken in the exercise of his judicial functions. He is not responsible for his words or actions even they are
not in the honest exercise of his judicial function. Object of this principle is to provide an environment to judges
so that they may work fearlessly and independently. A remedy is provided in case of judicial error.

A judge passes a decree against property occupant and sent bailiff to get released the possession, no one can sue
if some damage is occurred on the part of his agent. If judge terms someone thief, it is not a tort. If he awards
imprisonment or sentence of death, he is not liable because these are judicial acts.

4. Quasi Judicial Acts: A person who exercise as quasi judicial authority is also immune from civil action provided in
the theory of natural justice. Rule of natural justice includes, proper notice to be served to the party, opportunity
to be given to the party of hearing to defend himself, and impartial and judicial – always be fair and work in good
faith.

If a person is expelled from a union or club after passing a fair enquiry is not invalid and the Court will not interfere
with such a decision.
5. Executive Acts: Sometime police acts upon the orders of commissioner for the dispersion of mob and to maintain
the law and order situation. During this course some people may injure which does not come under tort and are
not sue-able. These are called executive acts and there is protection under The Judicial Officers’ Protection Act,
1850.

6. Parental Authority: Father and Mother have authority over their children under the age of eighteen year and they
can punish them for their benefit and care. This is sufficient defence.

7. Quasi-Parental Authority: Teachers also have authority over their students. They can retain them against their will
for the education or ethical training purpose. They also may punish them.

8. Acts of Necessity – Jus Necessitates: When a necessity arises to escape/save someone’s life and no lawful or
reasonable sources are available and no exception is there, steps can be taken which are necessary to do the right
job. And if during the course of escape someone’s gets injured cannot claim tort because of the act of necessity.
If a house gets fire and need sprinkling of water to stop fire, and during this exercise one is injured or water is over
sprinkled to others would not establish tort. It would not be called wrong because necessity knows no laws. It
was share necessity at that time. If Muslims are fighting with Non-Muslims and some of them deviate and join the
Non-Muslims and fight against Muslims, they must be killed. The Hazrat Umar passed this act. It would not
establish trespassing. Shakespeare said in his play that necessity knows no law. In unavoidable circumstances, acts
may be done, which, in normal circumstances, considered wrongdoing or offence. For example, a captain of vessel
may throw goods of commuters in sea in order to save vessel from fire or lives of the commuters. Lives of the
people are so important than of goods. Once a time 90 plus slaves were thrown in sea to save the lives of persons,
when ship was overloaded. This act was done in USA. Then slaves were supposed commodity and not person.
During the World War, a warehouse of oil was destroyed in order to prevent any possible loss, later it was
compensated.

Authority of Necessity: Government grants authority or to make statute by legislature to authorize someone to
accomplish the job. There are two types of authorities, i.e., imperative Authority and permissive or Conditional
Authority.

In imperative authority unlimited powers are delegated under the law. A Company who was responsible to spread
railway lines, was given authority of trespass of land of people. S. 56 of CPC says that flights cannot be stopped
on the ground of noise.

Pulling down a house which is in fire, to prevent spreading of fire to other property, to throw cargo over boards,
to save a ship in danger during storm, forcible feeding of hunger striker in jail are common examples.

9. Acts causing slight harms: Section 95 of the Pakistan Penal Code declares that act which causes slight harm
constitutes no harm are not offence. Touching a person to other in rush, pushing someone who is trespasser,
cycling on footpath by a child are slight harms. There should be some tolerance to live in society. High noise of
radio does not constitute tort while continues noise may constitute wrongdoing.

10. Plaintiff a Wrongdoer: This situation arises when plaintiff himself is contributory negligent in the case. Law for sea
and land was different. Plaintiff could not recover damages if he was wrongdoer at land. In 1945, a law was passed
that, on land, plaintiff can recover damages even he is wrongdoer, after excluding the wrongdoing on his part.
This law was also available under The Maritime Convention Act, 1911, for sea.

11. Private Defence and Defence of Property: When someone assaults someone or intends to inflict harm or injury
someone, he may take initiatives to prevent this possible harm or injury.
If someone enters in property without permission, he may push him out. PPC 97 provides defence for the safety
of property and self-protection against trespasser.

12. Inevitable accidents:

13. Act of God:

14. Exercise of common rights:

15. Contributory negligence:

Discharge of Torts: How the case of tort is discharged.

Death: This is the case in which case is abolished before proceedings begin in Court. If plaintiff dies, the case of tort
ends. In 13th Century torts started in England. Defendant frees upon the death of plaintiff till 1934. A law was passed
with the name of The Law Reforms (Miscellaneous Provisions) Act, 1934. Now case cannot be end even if plaintiff
dies, but there are five exceptions. They are as follows:

1. Defamation case ends upon death.

2. Seduction in which one party is married.

3. To convince another’s wife or husband to leave that house and remain apart.

4. Adultery in which both parties are married.

5. Fornication in which both parties are unmarried.

False statement, which injures another’s reputation, is called defamation. However to say murderer to murderer is
not a defamation. If the following people die then case closes.

Now new laws have been made and under these laws case remain continue even after the death of plaintiff or
defendant. In Victorian age Railway line was installed/spread. People were unaware that how it is crossed. During the
crossing deaths were occurred. Death was not tort but if they escaped and got injured then they claimed damages
against injury. Later death became tort under the Fatal Accidents Act, 1846. This Act comes in India in 1855. Another
Act was passed named The Lord Campbell Act, 1846. Now the death of plaintiff or defendant does not end the case,
but it continues by his heirs. Law is made when mischief occurs. The Employers’ Liability Act, 1880 and The Workmen’s
Compensation Act, 1923. Under these laws death in relation to tort cannot ends case.

1. Judgement: Once the case has decided in Court, either in favour or contrary, it is discharged and cannot be
proceeded twice in the same Court, however an appeal can be made.

2. No Double Jeopardy: Once the accused has been inflicted in a crime, he cannot be convicted again in the same
offence.

3. Release: It is on the option of party whether she wants to recover or not the debt. If one party consents for not
to recover the debt then case is discharged.

4. Accord and Satisfaction: If the case has been started in civil Court and both parties decided to quit from Court
proceedings upon the decision that matter is agreed to discharge upon accord and satisfaction, case will be
discharged.
5. Waiver: Some people are privileged and are exempted in legal proceedings. They may waive their privilege. If the
one part of the case is taken into consideration then it will be called waiver and if full then release.

6. Statues of limitation: Limitation Act prescribes the period within which action in tort may be filed. If an action is
not brought within the time prescribed, it becomes time-barred and ultimately case discharges. Acquiescence: It
is based on the maxim that equity aids the vigilant and not the indolent. If the limited time has gone then the case
is discharged being time barred. And if the time is gone in the absence of Limitation Act, it is called laches.

Vicarious Liability: When a person held responsible against the wrongdoing of others, it is called vicarious liability.
Company is responsible of the wrongdoing of its employees within the course of employment, because they were
committed for the interest of the Company and also Company is rich than of individual. Servant is the person who
draws the salary in order to obey the orders. Relationship occurs of Master and Servant. Servant is defendant No. 1
while the Corporation or Company comes later. Damages will be borne by the Company because she is rich.

Definition: Liability for the wrongful acts of others is called vicarious liability.

Master is responsible of his servant by three ways. The liability of a master is joint and several. Both are responsible in
some cases. There are three steps, which fallen/put masters into liability of tort of his servant:

1. By Relationship: If the relationship of master and servant exists, then it is sufficient to make master liable for the
tort committed by his servant. If there is no relationship, there is no liability/responsibility. Master is responsible
being the employer. If employee meet with an accident during the course of employment following the Intra Vires
(permitted acts), then employer will be responsible.

2. Ratification: If an employer ratifies Ultra Vires on the ground of his past loyalty, it will make employer/master liable.
Ratification means authorization of unauthorized acts of servant. If employee works contrary to employer’s
orders and commits an Ultra Vires, then he himself will be liable and employer will be free.

3. Abetment: It is help in wrongdoing. Both are responsible, i.e., employee and employer. The liability is joint, as well
as several.

Contract of service is the agreement in which an employee or servant agrees to work under control of employer by
orders and he receives salary against the work done. It creates the relationship of master and servant.

Contract for service is an agreement in which a job is assigned to a party who is independent and master and servant
relationship does not arises.

Who is servant at law: There are three recognitions, which determine the status of a servant. These must be found
collectively:

1. One who works for his master for money,

2. Servant must work under order/instruction of his master, and

3. He should be under control of his master.

A master is liable for all the torts of his servant on the following principles:

1. A servant’s act (tort) is master’s act is based on maxim Qui facit per alium facit per se. He, who tells others to do,
works himself. It is to blow hot and cold. The rule of approbation and reprobated is applied here.
2. Deep pocket theory. He is rich man. Also he is called Respondent Superior. He must be responsible because he is
rich.

3. The incompetence of a servant is master’s liability. Why he has selected such person who is unskilled? So master
is liable.

A petrol supply company had hired a driver who was habitual smoker. While delivery of the petrol he begins the
smoking which got fire. Besides closing the supply of petrol and removing the cigarette, he got run the truck from
that place but a line of petrol got fire and truck met with fire and a home badly affected with this incident. They claimed
damages. Company refused to pay damages stated that we had not advised to smoke the driver and responsibility lies
to driver. Held this the responsibility of the employer who hires him.

There are seven stages where master is liable for the tort of his servant. These are as follows:

1. Carelessness of servant: If the servant commits tort during the course of employment, due to his carelessness,
master will be vicariously liable. In a case master was ordered to his servant to dispose of some rubbish. He put it
in street that touched to the wall of other’s property. Since this action was done carelessness, but by the orders
of the master, held master is liable.

In an another case death was occurred due to the careless driving, held master is liable for damages.

2. Mistake of servant: The master is also liable for the tort of his servant committed mistakenly in the performance
of duties and thereby caused an injury or damage. During the mobilization of sugar a child took some sugar, and
driver of the vehicle gave him slap, held master of the servant is liable.

3. Willful wrong of servant: This is another way by which a servant may make his master liable by committing willful
wrong. It is enough that act was committed in the course of employment. This rule is applied in all cases even they
are forbidden and clear-cut violation of the employer’s instructions. In a case driver was not allowed to run his bus
speedily to carry the passengers. He not only driven the bus speedy but obstructed the plaintiff’s bus which caused
damage. This action was for the promotion of defendant’s business.

4. Fraud of servant: If a servant commits fraud during the course of employment without permission and knowledge
of master, even than master is liable. In a case a woman came to clerk of Building Society for investment of her
income. He cleverly obtained the money and run away. Held master is liable, whether or not the clerk had action
for his own purpose or for his employer.

5. Theft by servant: In theft case of servant, master is also liable.

6. Criminal act of servant: It also makes master responsible even it is committed after the working hours.

7. Negligence: A porter negligently put some people from right boogie to wrong one that caused injury to them.
Held Railway is responsible.

Difference between Crime and Tort: It is very difficult to draw a clear-cut distinction between a crime and a tort. A
tort today may be a crime tomorrow and vice versa. Tort is a private wrong or infringement of a civil right while public
wrongs are violations of rights.

If the offence is serious, it maybe treated as crime, and if it is not, it may be treated as tort.

Definition of Crime: Crime is an illegal act or omission prohibited by and punishable at law, and for which a special
procedure is provided at law to punish the offender.
Definition of Tort: Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons
generally and its breach is redressible by an action of un-liquidated damages.

Judicial Decisions: Tort involves a civil remedy or damages while punishments are imposed in crimes.

Case Proceedings: Tortuous or civil proceedings are started in civil Court purpose of which is enforcement of certain
rights claimed by the plaintiff against the defendant. Examples of civil proceedings are an action for restoration of
property, recovery of damages, etc. Proceedings of crimes are started in criminal Court for the punishment of offence.

It is possible that torts may give rise to civil and criminal proceedings, i.e., assault, defamation, theft, and malicious
injury to property. In these cases both proceedings are concurrent proceedings. The wrongdoer may be punished by
imprisonment or ordered to pay compensation to the injured party.

Magnitude of Wrong: Civil liability is measured by the magnitude of the wrong done while the measuring the criminal
liability we take into consideration the motives, intention, character of the offender, and the magnitude of the
offence.

Nature of Wrong: Tort is a breach of duty primarily fixed by law which duty is towards persons generally while crime
is the commission of prohibited act with ill will or guilty mind.

Nature of Decisions: Punishments are awarded for the purpose of deterrence in crimes while remedy in term of cash
compensates the victim. In other words chief object of punishment is deterrence while remedy in the form of damages
is imposed to take measures for prevention of violation of private rights.

Elements of Wrongs: Mens rea is required to constitute the crime along-with actus reus while only action is sufficient
to constitute tort and ill will is no more necessary. One, who trespasses another’s land or body, must have to pay
damages.

Crime does not complete until or unless actus reus takes place. Just mens rea is insufficient to constitute the crime
while tort may occur without injury, i.e., simply trespass to other’s property is a tort without injury. Here
maxim “injuria sine demnum” applies.

Compound-ability of Wrongs: Tort is compound-able by the private party and state cannot interfere or compel for the
withdrawal of case because crimes are against the state and not compound-able being public wrongs.

Parties in Cases: Both parties are private or common persons in tort as plaintiff and defendant while state is a party
being victim in criminal proceedings and other one is accused.

Attempt in Wrongs: An attempt to commit a crime can itself be an offence while attempt is not considerable to
constitute tort.

Commencement of Wrongs: Crime requires preparation while tort can be committed without it.

Defence as Innocent Actions: Innocent action in crime may be a defence in some cases but tort does not recognize
innocence.

Age Limit in Liability: Child under the age of 7 year is regarded by law as “doli incapax” incapable of having mens
rea while tort may takes place by an innocent child and he may be sued through his next friend, i.e., parents or
guardian.

Defence of Insanity: Insanity is a good defence in crime but not in tort. Provocation or instigation or temptation is
defence in crime but not in tort.
Intention of Wrongs: “Crime is an unlawful act or default which is an offence against the public and renders the person
guilty of the act or default liable to legal punishment. While a crime is often also an injury to private person, who has
a remedy in a civil action, it is an act or default contrary to the order, peace, and well-being of society that a crime is
punishable by the state.” Action under mistake is not a crime. For example, a policeman goes to arrest A, but actually
he arrests B, thinking to be A. since he has not guilty mind so he is not responsible, while mistake is not considered in
tort at all.

Unborn Children’s Liability: Unborn child can sue after he is born in civil cases but there is no legality of unborn child
in crime.

Waiver: Criminal law does not allow waiver in case where privilege class has been exempted from liability while in tort
waiver can be used.

Codes applicability: Criminal Procedure Code is applied in criminal cases while Civil Procedure Code is applicable in civil
or tort cases.

Remedies in Tort: Each tort that harms slight is ignore-able. There is not benefit to contest if it causes slight harm and
these are not taken as crime. Trifles are not torts. S. 95 of PPC says, “Act causing slight harm is not crime.” If someone
touches you without consents, it is battery, but is must be tolerated. If tort is serious then we will go to Court for
recovery of damages. There are two types of remedies, i.e., Judicial (within Court and Extra-Judicial (outside
Court) remedies.

What remedy is available in Extra-Judicial cases:

1. Damages can be claimed if loss is occurred.

2. Goods snatched can be recaptured.

3. Trespasser can be expelled.

4. Trespasser may be stopped.

Judicial Remedies:

1. Damages can be recovered.

2. Injunctions or stay orders may be obtained.

3. Recovery of property which is illegally occupied or property restitution.

§ 8 and 9 of Specific Relief Act deal with immovable property while § 10 to 11 deals with moveable property.

There are two types of injunctions, i.e., temporary or interlocutory and permanent or perpetual injunction. There are
two types of Court orders, i.e., mandatory injunction in which something is allowed to do and other one
is probationary injunction in which something is prohibited.

There is another type of injunction that is given before happening of non-permissible action. A person may be doing
his work diligently but seems to be wrong in future. An interim injunction can be issued against his future ill will.

Private injunctions are issued at once while government injunctions are given after serving a notice to government
and hearing the government cause.

Status of a person is very important in the cases of defamation. Damages vary person to person. Defamation of Prime
Minister or Landlord is greater than of the defamation of a poor man or beggar.
There are two types of damages, i.e., general and special. General damages are those, which Court determines to be
natural and probable consequences of the defendant’s act. These damages are not to be proved by evidence. A
particular statement cannot be produced as to how much loss is occurred. Special damages are those in which Court
does not presume. They are claimed specially while pleadings. Evidence is produced at the time of trial. A particular
statement is provided in contrast to general damages. It includes actual loss of plaintiff, loss of earnings, legal
expenses, loss of pension right, reduction of prospects of marriage etc.

Besides the broad classification of general and special damages, damages are of four kinds described as follows:

1. Contemptuous or ignominious damages: These damages are awarded in defamation cases where social status is
negligible particularly poor person’s status. When the Court form a very low opinion of plaintiff’s legal claim, or
case should not brings to Court of law, the Court awards trifling amount such as half rupee. Maxim ubi jus ibi
remidium applies here.

2. Normal damages: Where plaintiff’s legal right violates but he suffers from no loss. Here maxim injuria sine
demnum applies and nominal or small amount of damages is awarded. If A trespasses in B’s property but no
damage is occurred and A brings the tort case in Court, since no loss is happened, so Court will award nominal
damages because legal right of A is violated. In the case of Ashby – v – White, plaintiff was legally qualified voter.
Defendant refused willfully, maliciously, and fraudulently to cast him vote. Legal right was infringed but there was
no actual loss because candidate was elected in election. In another case of Constantine – v – Imperial Hotel,
plaintiff was refused to allot accommodation in hotel. Plaintiff got accommodation in other hotel. He received
damages, which were very nominal.

3. Compensatory or substantial damages: In these damages actual amount of loss or repair can be awarded. All the
expenses, which are incurred on the restitution of property, are recovered.

4. Punitive or vindictive or exemplary damages: These damages are awarded to deter the action of defendant. This
is punishment to defendant. These damages are awarded in case where statute allows, oppressive cases, and
cases in which illegal profit is expected. If judge irritates from the arguments and shouting of defendant then he
imposes damages greater than actual. Suppose if house arson damages are Rs. 10,000/-, he will impose Rs. 5,000/-
extra damages. There are circumstances which help in the mitigation (to less) or aggravation (to increase) of
damages. If government servant commits tort, aggravated damages will be imposed and if behavior of defendant
is bad, then also aggravated damages are imposed. The most important principle in tort is that law or Court looks
to the proximate or immediate cause and not the remote cause. You must request and not cringe.

Trespass to the person: If there is direct interference with the person’s body, is called trespass to the person and if
the interference is indirect then it constitutes nuisance. Someone attacks to another with stick or bullet and there is
apprehension that is trespass to the person. Trespass can be committed with land, the person, and goods. Trespass is
a direct action. Corporation is also a person but artificial. Injury to the person has four kinds: 1. Assault, 2. Battery, 3.
False Imprisonment, and 4. Mayhem[1] (Maim).

1. Assault is an act of the defendant, which cause to the plaintiff reasonable apprehension of infliction of battery on
him by the defendant.

The essential requirements of assault are:

1. There should be some preparation of use of force.

2. There should be reasonable apprehension of the use of force.

3. There should be ability of the defendant to carry out the threat.

4. This act is of present. Future threat is not assault.


Use of empty pistol may constitute assault if person threatens. Infliction in drama is not assault. Murder is result of
battery.

Assault is tort, threat without touch while battery is touch, thus crime.

Defences in assault:

1. Self defence.

2. Property’s defence.

3. Parental and quasi-parental authority.

4. Volenti non fit injuria.

5. Lawful authority.

6. Inevitable accidents.

7. Act of God.

8. Act of State.

2. False imprisonment means the infliction of bodily restraint, which is not expressively or implied authorized by the
law. It has two ingredients, i.e., it is unauthorized by law and complete restraint of liberty.

In the case of Bird – v – Jones, the Jones wrongfully enclosed a part of public way on bridge. They put seats on
bridge to watch boat race. Bird was insisted to go from other side. He sued in Court and held there was not
complete restraint because other way was available. If one person is detained in a room where a place is available
and detainee knows it, it does not constitute false imprisonment, but if there is a window to escape, but there is
sea side and detainee cannot escape, it constitute false imprisonment.

Wardale agreed to work in mine and was taken down there at 09:00 a.m., later he changed his mind to stay there and
wanted to come out. The owner of mines held him there upto 01:30 p.m. He sued for false imprisonment, the Court
decided against him.

Interrogation for the purpose of enquiry is no false imprisonment.

Trespass to land or immovable property: One who does not get permission before entering in house or property is
called trespasser or tortfeasor. It is interference without consents. It also defines as unjustifiable or unauthorized
interference with the possession of the land. Some types of tort are as actionable per se, such as libel or all types of
trespass. It does not require any special proof of damage. Trespass may be committed either by defendant himself or
by some tangible object such as throwing stones on the land of another or allowing cattle to stay upon the land.

Tort of fraud, conspiracy, slander, malice, waste of land, negligence, and nuisance etc. require some special proof of
damage, in the Court of law.

Driving a nail or putting a ladder on others’ wall is trespass. Everyone has to live within his limits with liberty.

How trespass is unjustifiable? It is the essential element for the tort of trespass to land. Interference with the
possession of land must be unjustifiable under law. Slightest interference with the land of another will amount to
trespass if no justified by law. Placing a foot on others’ land or throwing stone are trespass.

Entry with permission but remaining there is also trespassing. Law is watchdog of rights of people.
Continuos wrong is a sort of tort, which goes continue. If a pit is digs and someone is fallen into it, it amounts tort and
if again someone is fallen, it again amounts tort. Mental condition is not taken into consideration in tort.

A ship, full of oil came to shallow water and anchored. Oil spills to land of another person, who claimed trespass to
land. Interference under necessity does not amount trespass.

How trespass commits? There are three ways to commit trespass, i.e., Malfeasance, Misfeasance, and Nonfeasance.
One who commits tort is called tortfeasor.

1. Malfeasance is there where is serious tort occurred, e.g., giving a blow or house arson.

2. Misfeasance is the act of unskilled person. Teacher should do, as he should be. Negligence constitutes this tort.

3. Nonfeasance means where there is no answer of question or appeal.

Trespass ab initio: When entry, authority, or licence is given to anyone by the law, and he does the abuse it, he shall
be a trespasser ab initio.

Who can sue? A person who is possessor of land even as tenant, occupant, having right of possession can sue.

Remedies available with plaintiff: Following remedies are available to plaintiff.

1. Reentry: If trespasser gets out the occupier he can re-enter to his property even by force.

2. Action for ejection: If anybody comes without permission to the property can be ejected forcefully.

3. Damages: Plaintiff can claim damages against trespasser.

Defences in trespassing:

1. Volenti non fit injuria: Where there are consents of plaintiff, there is not tort. In the match of hockey or boxing, the
natural consequences of injury, does not constitute tort.

2. Lawful act: Detention and interrogation by policeman to remove his suspect is not a trespass. If he comes with
search warrant in property is not a trespass.

3. Self-defence: One, who enters in other’s property in result of his self-defence, cannot be treated as trespasser.

4. Victory in Court: If he comes in property after winning of case in Court is not trespasser.

5. Retaking of goods: One who has taken the goods of defendant cannot maintain the suit of trespassing. He can
take his goods by entering in other’s property without his consent.

6. Abatement in nuisance: One, who abates the nuisance and touch the property of other, cannot be regarded as
trespasser.

7. Easement: One who gets the rights of easement after completion of the period of twenty years, cannot be treated
as trespasser.

Trespass to goods defined as “consists in committing without lawful justification any act of direct physical
interference with a good in the possession of another person.”

It is of three types, i.e., replevin[2], detinue[3], and trover[4] or conversation or theft, as per Pakistan Penal Code (PPC)
378.
1. Replevin is a taking of goods un-authorized or without consents, secretly. Removal of goods from carts. Detention
of goods upon default of payment. Court may ask for return of goods.

2. Detinue is “a claim lies at the suit of a person who has an immediate right to the possession of the goods against
a person who is in actual possession of them, and who, upon proper demand, fails or refuses to deliver them up
without lawful excuse.” Legal retention but retention without consent is detnue. Detainee is regarded as bailee.
Remedy in detinue is to redeliver the goods or must pay compensation.

3. Trover or conversation or theft: The term conversation is used as “any act in relation to the goods of a person,
which constitutes as unjustifiable denial of his title to them.” It is a willful interference, without justification, with
any goods in a manner inconsistent with the right of another, whereby that other person is deprived of use and
possession of it. Goods belonging to other cannot be sold. Damages must be paid.

A VCR is taken to house for checking and at the time of revert its reversion is refused. Its remedy is only
compensation. A thing is taken and dropped into fire or canal, amounts trover.

Legal removal of goods but sale without consents is trover or conversion. This also involves unauthorized use or
consumption for own or other is trover. A wrongful disposal of is also termed as trover.

Reversionary is a person who has bailed goods to a person, who is responsible, to revert the goods. If these goods are
to be transferred to third person, the third person will be called as remainder. Both reversionary and remainder can
sue the person who is guilty.

Defences in trespass to goods: Following defences are available in trespass:

1. Recapture: If the goods of plaintiff are captured unlawfully by defendant, he can recapture them even forcibly.

2. Reentry: If the owner is expelled from his property forcibly and without lawful authority, can reenter in his
property by expelling even forcibly being the owner.

3. Self-defence: If the goods of someone are trespassed or damaged while the act of self-defence cannot constitute
trespass to goods.

4. Lawful act or licence: If any person or policeman with lawful authority enters in a property and takes some goods
in suspect to helpful in case proceeding is not trespass to goods.

5. Act of necessity: If some goods are broken being the act of necessity while defending himself or touched during
passing in a market is not a trespass to goods.

6. Bailee is owner: If A sends some goods to B, or B takes some goods from A, either lawfully or unlawfully, he is the
owner of the goods and goods cannot be snatched from B claiming the goods of A. One who have the goods in
his hand, is considered the owner of the goods. So bailement is a good defence.

Nuisance is any thing, which injures health or offending to senses and which causes injury or damage or annoyance or
discomfort to other. Wrongful act and damages or annoyance or discomfort must be there. Winfield defines it as
“unlawful interference with a person’s use or enjoyment of land, or of some rights over or in connection with it.”
Interference and damages or annoyance must be there to constitute nuisance and this act should be continued. Noise,
smell, pollution of air or water is the instances which are most usual but there are many other. Excessive tolling of
church bell or escape of fumes which kills vegetation and cattle are nuisances. The whole law on the subject represents
a balancing of conflicting interests. Some noise, smell, vibration are must be tolerated in any modern town, otherwise
modern life will become impossible.

There is a maxim “sick utere tuo ut alienam non laedas” means so use your property as no to injure your neighbors.
Direct hit, i.e., setting bullet, blow, or slap constitute trespass and indirect hit is flow of water towards other’s
property, roots of tree so that foundation of others property weakens or imbalances are indirect acts so causes
nuisance.

Kinds of nuisances: There are three kinds of nuisance, i.e., statutory, public, and private nuisance.

1. Statutory nuisance is the nuisance for which statute is provided in law to mitigate it. For example air, noises, and
water pollution. Statutes are provided to mitigate the nuisance.

2. “Public nuisance or common nuisance includes which diverse activities as carrying on an offensive trade, keeping
a disorderly house, selling food injurious to health, obstructing public highways, and throwing fireworks about in
the street.” It is a crime u/s 268 of Pakistan Penal Code (PPC). It constitutes reasonable discomfort and
inconvenience of public in general or a class of the people. Public nuisance is an act of illegal omission, which
causes any common injury, damage or annoyance to the public or to the people in general who dwell or occupy
properties in the vicinity or which must necessarily cause injury, obstruction, damage, or annoyance to persons
who may have occasion to use any public right. If some particular or special damage is proved then it becomes
actionable and gives rise civil action. A man falls down in a trench dug left open and unfenced. No light was placed
as security measures. His wrist and other portion of body received injury. Held negligence on the part of defendant
and liable to pay damages. Appeal in High Court dismissed and upheld the decision of the trial Court.

3. Private nuisance is “unlawful interference with a person’s use or enjoyment of land or of some right over or in
connection with it.” It is also continuous process. Noises, smells, pollution of air and water are the instances. Injury
to property and continuous unlawful interference must be there to constitute private nuisance. Give and take and
live and let live must be followed to avoid private nuisance.

If the nuisance is tolerable or slight, it must be tolerated. Sometime mood of a person becomes off due to tiredness
or extra ordinary workload; this reasonable nuisance must be avoided, being normal thing. To constitute the wrong
of nuisance, it should be unreasonable, continuous, and creating injury or harm. Dead body of horse laying on ground,
vibration or noises of machinery, are nuisances. If it amounts reasonable, no amounts nuisance. Sale of perished or
staled food items, false or misleading trade descriptions, injury of a child due to negligence or carelessness of parents,
renting out of house used in prohibited trade items are nuisances. Neighbor is the house or person who affects or may
affect each other. If a person or his anything affects from far away, he becomes neighbor at law. If plaintiff proves
damage, defendant is liable. In a case a horse was died while taking/grazing fodder. It was explored, later on, that the
pieces of iron fence of neighbor was escaped and mixed up in fodder which gone into the mouth of horse, resulted
death of horse.

Negligence: In the older ages direct hit to body or property was rendered a person guilty of trespass while indirect hit
was considered as negligence. For example, direct blowing was considered as trespass and if blow is given to third
person other than of person in target was called negligence.

It is now defined as “negligence is the omission to something which a reasonable man guided upon those
considerations which ordinarily regulate human affairs, would do or doing something which a prudent or reasonable
man would not do.”

In strict analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it
properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the
duty was owing.

Negligence is a act or omission in relation to reasonable man, i.e., if a reasonable man do something, negligent omit
that thing and if reasonable man omit to do certain act, negligent man will act that thing. Negligence is opposite of
care-ness and injures to neighbor. A reasonable man is that who looks fit in his field and takes proper care.
Carelessness is contrary to reasonable man. Negligence is actually a state of mind in which due care and attention is
disregarded and it is dealt by penal code. If reasonable man has to do something, he not to do or omits and if
reasonable man has not to do, he has to do that act. This is called negligence. Putting the ladder on slippery floor or
cutting the same branch of tree on which sitting is negligence.
If injury is desired then crime is committed and if injury is not desired then negligence is occurred. Only careful
attention is required and not special to constitute reasonableness. If metallic wire is not property insulated that render
it to negligence.

Since 1952, negligence is diverted toward intention from indirect hit. Unintentional wrongs are negligence while
intentional commission is regarded as crime. Following are the ingredients of negligence.

a) Duty to take care: Australian advocate, who became judge in England, derived this principle from Bible. Tort
is a story of neighbors. Bible says take care of your neighbors. Do not distress them. When a person comes
proximate to other is called neighbor and when he goes away, then he is disregarded as neighbor.

So proximity makes a person neighbor and finally renders in responsibility. Neighbors are duty bound persons
to take care of others. If I am careful then no loss will occur. Remote geographical proximity becomes, in the
eyes of law, legal proximity, if loss occurs.

Third person who is not part of the contract may claim damages, if some loss or injury occurs toward him. In a
case of Donoghue – v – Stevenson, a retailer of beer house sold ginger beer to a lady. She offered beer to her
guest. She consumed the beer which was included the decomposed remains of a snail. As the bottle was of
dark color, so the foreign elements could not be seen during inspection. Plaintiff sued the manufacturer for
the negligence claiming that she became ill after consuming the contents of bottle. Question arose whether
defendant was under obligation to take care towards to plaintiff. He held responsible even she was not part
of the contract.

b) Duty of care must be owed to the plaintiff: It is not sufficient that defendant has taken care but this care must
be toward plaintiff. In an American case, two servants of defendant were trying to board a passenger in train
who was carrying a parcel-containing firework. Due to negligence of servants it fell down and shocks knocked
over some scale about 25 feet away striking and injured the plaintiff. Held even the conduct of defendant was
wrong in relation to passenger, but it was not wrong in relation to the plaintiff standing far away. In relation
to her, negligence was not established at all.

Case Bourhill – v – Young, a lady carrying fish basket was being helped by a driver of tram to put basket on
her back, a motorcyclist after passing the tram, collided with a car and died. She could not see either deceased
or accident due to the tram standing between the deceased and her. She simply heard about the collision.
After the removal of dead body she went to the place of accident and saw some blood left there on the road.
Consequently she suffered from nervous shock and gave birth of still-born child of eight month. She sued and
held motorcyclist being no responsible. Also held that duty to take care toward plaintiff was not anticipate-
able in this case. Such duty arises when results are anticipated or can be anticipated.

c) Breach of duty to take care: This is the most important element of the negligence that duty to take care is
breached. Onus to prove negligence lies to plaintiff. This is a duty of banker to check signature on cheque
before the cheque is en-cashed, otherwise bank will be responsible.

d) Consequent damage to the plaintiff: This is the last essential element of negligence that damage caused to
plaintiff was the result of the breach of duty and not too remote.

Res ipsa loquitur: It means thing speaks itself. This maxim is applied where plaintiff is totally unable to state facts,
which caused him injury. There are many cases in which accidents speak their story.

The maxim applies whenever it is so improbable that such an accident would have happened without the negligence
of the defendant, that a reasonable jury could find without further evidence that it was so caused. In case of Byrne –
v – Boadle, a barrel of flour rolled out of an open doorway on the upper floor of the defendant’s warehouse and fell
upon the plaintiff, a passer-by in the street below. It was held that this of itself was sufficient evidence of negligence
to go to jury. The maxim throws on to the defendant the burden of disproving negligence.
Defence of Act of God: In the case of Nicholes – v – Marsland, defendant made an artificial lake which was overloaded
while torrential rain and caused damage to plaintiff’s field. Held that water which was escaped from lake was due to
rain and was an act of God and beyond human control.

Inevitable accident: These are the accidents, which cannot be foreseen or perceived and reasonable care cannot be
taken to avoid them. They are proximate to defendant and he is free from burden.

Contributory negligence was defence earlier but now it is not defence at all.

Maxim res ipsa loquitur is not applied:

1. If more than one stories arise;

2. If thing or object was not in possession;

3. If defect was known to plaintiff. It is clear case of negligence;

4. If story is stated by plaintiff and defendant.

Defamation is the “publication of a statement which tends to lower a person in the estimation of right-thinking
members of society generally; or which tends to make them shun or avoid that person.”

Kinds of defamation: According to English Law, defamation is of two kinds: Libel and Slander. “A libel consists of a
defamatory statement or representation in permanent form; if a defamatory meaning is conveyed by spoken words
or gestures it slanders.” Slander is converted into libel when spoken words are written on paper.

How libel is committed: Printing, mark or sign exposed to view, picture, statute, waxwork etc. Libel refers to eye.

How slander is committed: Defamation in the manual language of the deaf and dumb, and mimicry and gesticulation
generally. It refers to ear.

Distinction between libel and slander: Following are some distinctions between libel and slander:

1. Action: Libel in all cases is actionable per se while special damage is to be proved in slander to constitute slander.

2. Liability: Libel is both tort and crime whereas slander is only tort or civil wrong.

3. Mode of defamation: Writing or telecasting or broadcasting commits libel whereas slander is verbal statement.

4. Magnitude: Libel is greater than of slander in magnitude.

5. Publication: Slander becomes defamation when it is known by third person whereas libel does not need
publication.

6. Time period: Libel is permanent defamation whereas slander is temporary defamation.

Exceptions in slander: There are some exceptions, which make slander actionable per se. They are as follows:

a) Imputation of a criminal offence punishable with imprisonment.

b) Imputation of dangerous disease which prevent other person to associate plaintiff.

c) Imputation of unfitness or disqualification or incompetence in any office, profession, trade, or business.

d) Imputation of unchastely to any woman or girl.


e) Fifth exemption has been repealed that is imputation of caste which lowers position of plaintiff.

What is theory of freedom? Cicero, a Roman Jurist, says, “we are the slaves of law so that we may be able to be free.”

Remedies: Fish is animal of water and remains free in water. If she come out from water, she losses her freedom at
that moment. Everyone is free to drive vehicle, but with brakes.

1. Stay order can be obtained to stop the person making defamation. Cartoon or caricature and story in newspaper
may damage repute of someone. Stay order stops its publication.

2. Must be stopped: Defamation either libel or slander must be stopped to continue.

3. Damages may be received against the defamation.

Innuendo is kind of defamation in which words used are not defamatory in its general meaning but they have hidden
meaning of defamation. There may be a statement containing an allegation, which apparently is no imputation, may
be proved by plaintiff to have in imputation under the special circumstances of the case. As per Winfield, “Where,
however, the words are not defamatory in their natural and ordinary meaning, or where the plaintiff whishes to rely
upon an additional meaning in which they were understood by persons having knowledge of particular facts, then an
innuendo is required. Defamation does not take place between husband and wife unless third person is involved.

Defences: There are three defences, i.e., justification or truth, fair comments, and privilege.

1. Justification or truth: Action cannot be taken if the person responsible of defamation proves justification or
establishes that it is true or substantially true. If contrary is not proved by defendant, Court will award heavier
damages against him. Substantial truth is enough to prove justification. In a case of Alexander – v – N. E. Rly, the
plaintiff was convicted for travelling without ticket in a train and was fined one pound or imprisonment of two
weeks in default of payment. Defendant published one pound fine and three weeks imprisonment in default of
payment. Held the statement was substantially true.

2. Fair comments: For the purpose of public interest fair comment is good defence. If a person says to another that
do not give him your house on rent to X being defaulter is fair comment and not actionable. X should be proved
defaulter. Fair comments must contain public interest, an expression of opinion and not an assertion, must fair
and must not be malicious.

3. Privilege: It is a statement which is between the two parties which are integral part of each other like husband
and wife, judge and parties etc. There are two types of privilege, i.e., absolute privilege and qualified privilege. In
absolute privilege any thing can be said even malice but in qualified privilege statement should not contain malice.

a) Judicial privilege: Dialogues between parties, advocates, judges are not actionable being defamation. They
have complete privilege and action can not be taken against the statements, which are given in the
proceedings of cases.

b) Parliamentary privilege: Parliamentary members have also privilege. Statements or dialogues exchanged in
parliament are not actionable and all the parliamentary members have privilege to exchange any sort of
statement.

c) Official privilege: Defamatory statement of one officer to other during the course of employment is
complete defence.

d) Husband and wife: Exchange of statements between husband and wife is not defamation unless third party
is involved.

Strict Liability is like nuisance with slight difference. We consume goods in two ways out of which in one defendant is
liable if commits negligence but in second way defendant is liable even if he is not negligent or he has not fault. In
strict liability defendant may be held responsible for the consequences or harm caused to the plaintiff although the
defendant neither intends the results not is guilty of negligence. This rule was first propounded in Rylands – v –
Fletcher, 1868, case. All the things, which we use in our routine life, can be termed natural use and all the things use
of, which is not common, are called non-natural use. We use all these things in our home or land. We bring goat in
home, which is natural or common use. No one can take elephant in his home, if so, it will be termed as non-natural
user of land or home. Little fire in home is enough for household. Petrol in huge quantity is exceptional case. Plants
are common things but poisonous trees are exceptional use. They are natural or non-natural users of their land or
house.

Driving a car is natural use, if driven at high speed, will create nuisance or negligence. Brining goat in home is natural
use, if he escapes and causes injury will be liable under nuisance. If tiger is taken into home, which is non-natural use
of home, and if he escapes and causes injury will be liable under strict liability.

All the non-natural things brought at home must be collected and kept under control and if they escape, defendant
will be liable. Smoke creates nuisance while petrol tank may create strict liability. In Rylands – v – Fletcher case,
defendant employed independent contractors to construct a water reservoir on his land for the supply of water to his
mill. Contractors made a reservoir without taking due care and committed negligence. When water was filled in the
tank, water leaked through the old shafts and flooded the mines of the plaintiff. In this case an independent contractor
was negligent and defendant was not negligent. But upon sue of plaintiff, defendant held liable.

Essentialities of strict liability: Following are three pre-requisites of this rule:

1. Bringing and keeping on land anything likely to do mischief, if escape: Defendant must have brought anything on
his land, kept there, which can be escaped. This rule is applied on gases, oil, electricity, vibration etc.

2. Escape: Dangerous thing must be escaped and causes injury. Mere bringing and keeping a dangerous thing on land
is not an actionable wrong. Liability arises when it escapes. If no escape, liability will no arise.

3. Non-natural use of land: Strict liability arises when land is used for non-natural purpose. Storing water in huge
amount was considered to be non-natural use of land. It is a question of fact whether particular object can be
dangerous or particular use can not be non-natural. In deciding this question all the circumstances of the time and
place and practice of mankind must be taken into consideration so that natural and non-natural use of object may
be varied.

Defences: There are certain defences against strict liability as follows:

1. Plaintiff’s own fault: Fault in escape of non-natural object by plaintiff acquits defendant from liability.

2. Act of God: If the huge amount of water is escaped and causes injury to plaintiff is actionable but if water escapes
in result of torrential rains or flood which is beyond human control then it is good defence.

3. Natural user of land: Anything, which is non-dangerous and natural use of thing, if escape and causes injury, rule
of strict liability is not applied but nuisance.

4. Consent of the plaintiff: If plaintiff and defendant, both have consents to use land or home, and escape causes
injury, it will not be actionable under the rule of strict liability.

5. Act of stranger: Even in case of non-natural user of land or home, if escape is caused by the act of stranger, it is
good defence.

6. Statutory authority: If any statute of government allows keeping and collecting which is dangerous or non-natural
use of land can not be held liable under strict liability. Statutory authority has two kinds, i.e., absolute statutory
authority and permissive statutory authority. Under the absolute statutory authority liability does not arise in any
case. In a case of Celanese, Company was authorized to make electric cables in huge quantity during war time, and
due the negligence iron sheets touched the electric supply cables and consequently power failed. Held not liable
under absolute statutory authority. Under the permissive statutory authority negligence may create liability. An
organization was allowed to make hospital for prevention of small pox and they made hospital within city, which
caused spread of small pox rather than its control. They were sued and held liable being negligent in the selection
of site within city. They should be constructed hospital outside of the city.

7. Bringing and keeping things, which are not dangerous: Natural use of land and non-dangerous objects cannot
create strict liability but nuisance.

8. Common benefit: If non-natural objects or dangerous things are kept and collected for common benefit of the
society or parties then strict liability rule will not be applied.

Rule of strict liability is applied in the following cases: Poisonous gases leakage, Atomic Radiation, Oil Pollution,
Motor Vehicle Act or Accidents, Vicarious Liability, Factories Act for Workmen’s Compensation, Food and Drugs
Act, Res ipsa loquitur, and Product Liability.

Malicious prosecution and malicious civil proceedings defined as tort, which consists of instituting certain kinds of
legal proceedings against another person maliciously and without reasonable and probable cause. Malicious is applied
for malicious prosecution, malicious bankruptcy and liquidation proceedings, malicious arrest, and malicious
execution against property.

Society as a whole is interested in protection of individual against unjustifiable and oppressive imputation of criminal
charge.

Essential ingredients for malicious prosecution: In an action for malicious prosecution, plaintiff has to proof
following:

1. That he was criminally charged in prosecution.

2. Proceedings complained were dismissed in his favour.

3. Prosecution or proceedings were carried on with malice intention.

4. There was an absence of reasonable and probable cause.

5. Suffering of plaintiff in result of prosecution or proceedings.

There was a railway accident case in Dr. G. A. Abrath – v – North-East Railway Company. In this case Mr. M was
travelling in rail which met with accident. Mr. M received injuries. Mr. M received damages levying allegation of
negligence on the part of railway. After payment of damages, railway brought an action of conspiracy against Dr. G.
A. Abrath and Mr. M, both. Dr. G. A. Abrath had given treatment to Mr. M after receiving injuries. Railway alleged that
there was no injury to Mr. M and Dr. G. A. Abrath instigated Mr. M to bring an action against railway. During the
proceedings it was held that prosecutions were without reasonable and probable cause and the case was initiated
with ill will and there was no truth in case so Dr. G. A. Abrath suffered. Case was dismissed in favour of Dr. G. A. Abrath.
Dr. G. A. Abrath brought an action against North-East Railway Company for malicious prosecution in which Court held
Dr. G. A. Abrath innocent and awarded damages.
Law of Easement
Easements’ Act, 1882

Easement is a story between two property owners and neighbors. There is a maxim in law that equity helps the
vigilant and not the indolent and law making is based upon welfare of the people is supreme law. Easement is a
warning to people that they must be vigilant in order to save their rights.

Indolent commits acquiescence, as it is assent to an infringement of rights, either expressed or implied, from conducts,
by which the right to equitable relief is normally lost. It is a warning that no one may be allowed to use your property
as passage or grassing field or pasture. No one should be allowed to use your property as a source of acquisition of
light, air, and passage for water flowing. If there is no interference in trespass for consecutive twenty years, right of
easement is acquired to the trespasser. Right of easement accrued after twenty years’ interference. It is not kind of
ownership, it is just right of use of other’s land. Trespasser is called user and this right is called re aliena. This is also
called accessory right. One who comes to your property with permission, if he is your friend, he is called licenseeand
if he is other than of your friend, he is called invitee. Easement is accrued by interference without permission.
Dominant right of ownership is called re properia and owner is supposed vigilant whereas indolent property is
called servient property. Easement is called in England servitude. Easement is burden on land being encumbrance.
There are four main encumbrances on property, i.e., lease, servitude, trust, and securities. There are some other
encumbrances like litigation, co-ownership, law limitations, and right of light, air, water flow, or ladder access.

Definition: An easement is a right which the owner or occupier of certain land possess, as such, for the beneficial
enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being
done, in or upon, or in respect of, certain other land not his own.

How the easement is acquired: Easement is acquired by prescription, custom, and grant either implied or expressed.

Easement is a right to use (right of user) another’s property for support water, grass, light, air, way, and drainage etc.
Since this property gives service to dominant owner, so it is also called servient ownership.

There is no time limit in some easements like partitioning of a house, easement by necessity, personal/prescription
easement, customary easement for all people. It should be very old, but in case of one or two years, it can be claimed
as old.

Classes of easement: There are six general classifications of easement.

1. Affirmative (positive) and negative easement: In the case of easement, dominant owner has positive
easement because it entitles dominant owner to make active use of the servient tenement or to do something in
the absence of an easements, i.e., nuisance or trespass. Negative easement relates to servient tenement. It is a
restriction over the servient owner to exercise an ordinary right of ownership over his land.

(1) Right of way.

(2) Putting sign post.

(3) Use of kitchen of neighboring house.

(4) Use of washing place.

(5) Drawing water from neighbor watercourse.

(6) Right to bury dead body.


(7) Grazing cattle on pasture.

2. Apparent and non-apparent easement: Any sign or evidence of apparent on the servient tenement is apparent
easement. Even the perception on careful inspection may create easement. An apparent easement means not
only one which must necessarily be seen, but one which may be seen or known on a careful inspection by a
competent person. If there is no evidence, or sign, or a competent authority makes no careful inspection, that
is non-apparent easement.

3. Continuous and discontinuous easement: Continuous easement is that which does not requires act of man for
establishment. Its enjoyment, at present, or in future, becomes due without act of man. This act must be on
servient tenement. Opening of shutter for letting light and air is not such act of man on the servient
tenement. Discontinuous easement requires the act of man for its enjoyment. In case of right of way, every step
of man is necessary for the enjoyment of easement and such step is on servient tenement. Light and air
is continuous easements. Right of way for A over the land of B is discontinuous easement.

4. Prescriptive and non-prescriptive easement: Prescriptive easement is easement where the access and use of light
or air to and for any building have been peacefully enjoyed, as an easement, without interruption, for twenty
years. Non-prescriptive easement does not require a period of twenty years’ enjoyment.

(1) Grazing: Right to graze cattle over the land of another is established with enjoyment for the statutory
period of twenty years as of right and without interruption.

(2) Stacking manure: This easement can be acquired by stacking manure of wasteland.

(3) Private nuisance: A right to create private nuisance has continuously been in existence for twenty years.

(4) Profit-a-prendre: Profits, which come from rent, garden etc., are acquired by twenty years’ uninterrupted
enjoyment.

(5) Orchard: Village community can acquire this right after twenty years continuous enjoyment.

(6) Repairing wall: Courtyard of neighbor can be used for the repairing and painting wall. Condition of twenty
years enjoyment is there.

(7) Fishery and ferry: The right is established on other’s property after twenty years enjoyment.

(8) Right of privacy: This right should be proved right since the time immemorial.

Kinds of non-prescriptive easements:

(1) Customary easement may be acquired by virtue of a local custom.

(2) Necessity: Where one person transfers or bequeaths immovable property to another, that is necessity.
Partitioning of a home may create easement by necessity for the use of common passage. Law creates the
easement of necessity under the special circumstances by virtue of implied grant to meet the necessity of
a particular use.

(3) Quasi easement: Where immovable property possesses by operation of law.

5. Easement for limited time or on condition: An easement may be permanent, or for a term of years, or other limited
period, or subject to a periodical interruption, or exercisable only at a certain place, or at certain time, or between
certain house, or for a particular purpose, or on condition that it shall commence or be come void or void-able on
the happening of a specified event, or the performance of non-performance of a specified act.
6. Subordinate easement: Servient owner may grant on servient heritage any easement that does not lessen the
utility of the existing easement. This easement is granted with the consents of the dominant owner.

General kinds of easements: Following are the general kinds of easements:

1. The “Lagan” right: This is a right to sit in worship on the ghat of a river.

2. Passage of boats over waters belonging to other: The right to passage for boats in rainy season over water
belonging to another property is an easement in Bengal.

3. Discharging household water: The right to put drain and discharge ordinary household water on the neighbor’s
land is an easement that is often the subject of litigation in towns.

4. Discharge latrine water: Such a right is as in discharge of household water.

5. Right to use another’s latrine: The right to use neighboring latrine in the country is regarded is an easement.

6. Putting up scaffolding on neighbor’s land: Putting scaffolding on neighbors open space for paint the wall or
plastering the wall also fall within the category of recognized easement.

7. Putting advertisement placard or illuminations: The right to put advertisement placard or illuminations on
neighbor’s building is an easement.

8. Storing and threshing grain: The rights to store grain on another’s courtyard and to thresh them and otherwise
use the courtyard can also an easement.

9. Stocking manure: To stock manure on another’s land can also be right of easement.

10. Putting rice seeds for transplantation: To go to another’s land to plant rice seedling there, let them grow, and
then carry them to one’s own field for the purpose of transplantation could be the subject matter of an easement.

11. Using roof for drying clothes: For the purpose of sitting or drying clothes, roof of another, can be used.

12. Use of land for sitting and sleeping: Use of another’s land for sleeping and sitting is an easement. This is not
personal right.

Who may impose easement: Impose means grant in the granter’s land. Impose is used to indicate grant upon his own
land. Easement may be created either by express grant or implied grant. Anyone may impose easement, in the
circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is
to be imposed.

Following are the “any one” who may impose easement:

1. Owner: An individual owner of land can create easement for any estate or interest. The owner of servient
tenement can impose easement, by his unilateral act, on his property.

2. Co-owner: One of the co-owners may impose easement, with the consents of other owners.

3. Lessee: Any lessee or tenant can impose easement on the leased land for the un-expired period of his lease or for
any shorter period.

4. Permanent tenure-holder: The holder of permanent tenure can create an easement.


5. Ostensible or quasi owner: If a person grants an easement upon the representation that he has the title to do so
and he has not the title at the time of the grant. If he subsequently acquires it, the easement so granted attaches
to the newly acquired property and the conveyance operates by way of estoppel against the denial of the right.

6. Limited owner: Limited owners having temporary interests in land may grant easement rights, which might last
during the continuance of their interests.

Who may acquire easement: An easement may be acquired by the owner of the immovable property for the beneficial
enjoyment of which the right is created, or on his behalf, by any person in possession of the same.

1. Owner or person in possession: Owner of dominant heritage or person in possession of the dominant heritage on
the behalf of the owner may acquire an easement. Easement is acquired for the beneficial enjoyment of the
dominant heritage. An occupier of land can acquire easement.

2. Co-owner: Co-owner of tenement in joint ownership can acquire an easement, either by grant or by prescription
and on behalf of the co-owners of the tenement, but independently of their consents, and for the beneficial
enjoyment of the tenement.

3. Trespassers: Dominant owner is the person who has dominant right over his own property and he has committed
trespassing for continuous twenty years over the servient heritage and has acquired easement.

4. Lessees: A lessee who is in possession of the dominant owner can acquire an easement for his lessor in a servient
tenement. There can be no easement between landlord and tenant.

5. Co-tenant: Tenant of land can acquire an easement on the property held by another tenant belonging to tenant
of other than his own lessor.
Criminal Law including its General Principles and Hudoods
Definition: Crime is an illegal act or omission prohibited by and punishable at law; and for which a special procedure is
provided at law to punish the offender.

Act is a series of acts. Extreme negligence means where crime is committed, and omission is a state of act.

There are some acts, which look like crime, but they are not crime. Accident on road requires the attention of the
people to the victim but no one pays attention to victim. It looks like crime but actually it is not a crime because law
has not imposed us a duty to pay attention. There are some acts, which do not look like crime, but they are crime. An
innocent baby whose parents have been died and he is on the disposal of the guardian and they do not pay attention
to fulfill his requirements of food and rest. This does not seem crime but actually it is crime because they have not
fulfilled their duty to save him from danger.

Another important factor, which should be proved during the process of pleading, is intention of the crime. If factors
are there but intention of the crime is not proved, it will not be crime. Shock to mind is also a kind of injury. Crime is
wrong against whole society in which we live. Tort is wrong against one person but crime is wrong towards people or
society. Crime proceeds in criminal courts, while in torts a complaint is filed. Defendant is guilty. Burden of proof lies
on plaintiff. Crime against society is not compromised. Homicide does mean killing of man unlawfully. Where there is
love there is war.

When the state’s machinery of administration comes into action to punish the offender which is against the law, which
is criminal law. Rights and duties are correspondent each other. Nature, history, defamation, and intention, are
ingredients and characteristics. State maintains the peace in the society. State up-keeps the role of morality. Mental
abnormality, social justice, family problems, injustice, poverty, lack of coordination between institutions, and
education are also a cause. Also police does not function properly.

Occasional criminal is the man who commits single crime. Our institutions are just educational centers rather than
training Centers. Why the rate of crimes in USA and UK is higher than of Pakistan? There is less punishment.

Criminal liability: Brain is origin of act of crime. Wishes and determination put person into crime. Crime is a series of
chains connected with brain to the resulted form/shape. Revolver is taken out and someone is killed. This is kind of
direct crime. If you have trained dog and gesture to dog to attack someone, that is indirect act. This is done through
an agency. Little boy is also can be used as an agency to commit a crime. This will be indirect crime. Some crimes are
contributory, i.e., two truck drivers hit both trucks each other, and they will be called contributory negligent. Some
crimes are committed during the state of provocation. They have less punishment. Negligence is also a crime. All the
results, which can not be foreseen, are not crimes. Action must be connected closely; otherwise it will not be a crime.

Abetment means help in crimes. Case is something, which is decided by the Court. Name of Plaintiff or State come
first and then defendant or accused. In criminal cases plaintiff is state. All crimes are committed against state.

A person who has not provided medicines to his child who resulted in death held not responsible because his religion
or belief was obstruction in his decision. Crime cannot be proved until the element of mens rea is proved. Where there
is absence of foresee-ability, there is no guilty of murder.

Intention means thinking before action, and Action thinking after intention. Intention can be judged from
circumstances of the individuals.

Subjective Test: Thinking of the accused person.

Objective Test: Thinking of society about accused person.


Now-a-days objective tests are being used in all over the world. Low intensity of crimes involves low intensity of
punishment.

Motive means move, desire, wish, ill will, hatred, love, emotions, reasons, ego, and complexes. A motive is proof of
intention but is not essential against actus rea. Rule of transfer of Malice. A crime in which intention was different but
result is same it is also a crime. Where there is no original crime there is not crime at all.

Anwar & others – v – State (1964) PLD 378: Two persons were quarreled on the purchase of goat. They separated but
again they quarreled and accused struck a stick on the head of plaintiff, which caused death. Held that there was not
intention to kill and there was no foresee-ability to case death, so it is grievous hurt and not a murder case.

In a different case Woolinetion - v - State, a knife was used in the similar situation and held that accused was guilty of
murder because there were foreseen consequences.

Negligence: It denotes to such blameworthy inadvertence and who negligently brought harm upon another, can be
under a legal obligation of injury, which may sue him in the Court for damages. Negligence means perception of a risk,
which falls below from the standard expected of a reasonable person in the light of risk. A person is negligent if any
other person can foresee the consequences and accused fails to foresee them and fails to take steps to avoid them.
Careless or speedy driving is the example of negligence. Negligence is also a state of mind, hasty actions, risk taking
situation, laziness etc. In the cases of negligence, prosecution does not need to prove mens rea on the part of the
accused.

Nazir Ahmed – v – State: In this case a family was proceeding elsewhere. A third person gets started fighting with
husband. Husband was being beaten. His wife intervenes to escape her husband. A child was in her lap. Offender gave
a blow to child in which consequences he died. Held that he should be taken notice of the child at that time.

Issa Khan – v – State: Driving at fast speed on a clear road is not unreasonable, but cannot be said in case if road is not
clear, and while the vehicle is on wrong side of the road.

Ghulam Muhammad – v – State: In this case a person was driving a car safely on a road. A person was in try to cross
the road. When car came near to him, he suddenly tried to cross the road and get injured and dead. Held, that rash
and negligence is not committed on the part of driver because it cannot be foreseen that one person on the roadside
would try to cross the path of the running motor vehicle which had already reached to him.

Recklessness and negligence: Nature of guilt, seriousness of actus reus, injury, percentage of intention, quantum and
quality of guilt is considered while deciding the criminal liability. There is no full intention in negligence. That is less
than 100%. A child who is dead by the negligence of speedy car driving is not guilt of murder because there is no
intention to kill the deceased child. There was no pre-planed incident. But it should be noted that driving at the speed
of 100 kph at Wahdat Road could not be claimed negligence. There was neither personal clash nor dispute so held he
is not guilty of murder but he is responsible of less than guilty of murder.

Recklessness is extreme type of negligence. Recklessness means over hasty act done.

1. Chief Constable of Avon & Somerset – v – Shimmen: A person was demonstrating his skill near a shop’s window,
misjudged his kick and broken the window. He admitted in his statement that he had thought about the risk of
breaking the window but he ignored the risk. Held that it is sufficient for Court that there was awareness on the
part of accused, so he is liable. He was guilty of negligence.

2. Mitchell’s Case: In this case some people were standing in a queue in a post office. There was an old lady of 89
years old. Accused acted to push her and as a result she got injured and died. Held he committed the manslaughter
at lesser rate. He is not guilty of murder but he is liable.
3. Pembliton: A person had been fighting with others. He threw a stone to hit them which missed and broken the
glasses of a window of a nearby public house. His intention was to injure the persons and not to injure property.
He was not criminally liable but it is a civil negligence.

Rule of Strict Liability: It means exclusion of mens rea. Offences committed without criminal intention are liable. A
person may liable in some cases under strict liability rule although he has no mens rea to commit an offence. Law
respects everyone and give liberty to everyone enjoyment of freedom and hold property. People are supposed to
behave in civilized manner. Mistake, as a defence is not excused.

Strict Liability at Common Law:

Public Nuisance: It does mean act which interferes with the enjoyment of a right which all members of the community
are entitled to, such as the right to fresh air or to travel on the highway. A plaintiff may claim damages against the
injury he got. Noise of horns, dangerous driving, spreading of wastage, covering of main road for marriages, smell of
ghee mills, open trench having bad smell, obscene literature or photos, abuses to religion, are the general types of
the public nuisance. Ten years imprisonment is awarded in England.

Everyone is expected to be careful in his actions whatever and whenever he or she is. Everyone is liable against his
wrongdoing, which falls under strict liability. Intention or mens rea as to matter of defence is not excused. It has two
kinds, first is Strict Liability at Common Law and second is Statutory Offences. Common laws are those which are
statutes applicable in courts. They are gradually come into existence. Statute offences are those which are declared
crime under statutes, i.e., Food Control Act, one who consumes the food and faces hazardous consequences, may sue
the manufactures or seller of that product. These rules are made to save the public health. In these cases question of
intention does not arise and only the consequences stand the accused liable. If during the filling of cold drinks like
Coca-Cola, some dangerous material is mixed in bottles and injures the person who consumes it would be liable for
these dangerous consequences. Company would be responsible because health of people is prime object that is
enforced under strict liability rule and intention is not considered. All people are expected to be more careful. The
Sales of Food Act says that no one food item can be sold with label which is wrongly linked with it. Rules of traffic are
also an example of strict liability. Actus Reus unknowingly is no defence. In these cases on the part of plaintiff on injury
or harm is to be proved to establish liability and reasonable care was not taken. In a case of Sweet – v – Parsely, in
which a house was rented out to the persons unknowingly whatever they will do business in the house. They started
the business of cannabis (Chars). It was held a crime. He pleaded that he was unaware and did not know that what
business they hold and I had no intention while renting out my house.

In other case of Sheppard, parents did not take care of their child who got injured and held, liability on the part of
parents although they had nothing intention. This was held under The Child Abuse Act, 1861.

Parties to a Crime or Law of Complicity: It means commission of crime of two or more than two offenders together
for which they have planned to commit to achieve particular results. It is also a conspiracy of a party for the purpose
of robbery. They commit crime together and then run away from the place where they commit the offence of robbery
or other crime. This is called complicity, partnership in a crime or wrongdoing, and all are responsible of commission
of an offence.

There may be different situation arises for the purpose of responsibility of committing a crime. Pakistan Penal Code §
34 & 149 both regard the assembly guilty of offence by way of encouragement, advice, provoke, committing of crime.
One who is behind is also responsible. One who keeps watch on main gate or door, one who is sitting in a car, one
who supplied weapons to commit a crime, one who himself do not commit a crime but use an innocent agent to
commit a crime, all are responsible jointly.

In a case a mother used her daughter to give a powder to his father for the relief in cough, which was actually not
powder and was poison. This fact being not known to the daughter, father died. It was held in a Court of justice that
mother is a guilty of murder since the daughter lacked mens rea. If an agent has sufficient knowledge then he may be
held guilty by way of abetting. In the case of Nawaz Sharif and Bhutto, both has/had conspiracies to commit crime
through agents and all will be/were held offender and punished.

Conspiracy maybe made in other city or in scattered form on different places or on the same place, but in any case it
is crime of party together and all are guilty. If one of two commits murder, both will be responsible of crime on the
ground of consequences brought. No one can say that I have not killed the person, this is not an excuse. No doubt
that only one person killed another person physically but second one has encouragement for his companion. There
was sharing intention to commit a crime. Both were gone together to commit crime, so punishment will be same.
Intention is so important in such crimes. Mixed intention which bring consequences, sharing with each other’s, same
results, makes the offenders responsible.

Animal like trained dog can also be used to commit crime and indirect crime cannot evade the offender. Common
intention is common desire, which bring same results. One who abets in commission of crime is punishable equally
because acts are equal. Mens rea is no more important while ends are so important.

One of two is in better position to kill a innocent person; other will also be responsible. When the objective is achieved
with sharing or common intention then all will be guilty of offence.

An Assembly of five persons plans to commit robbery, three of them enter in a home, one sits in car, and one keeps
watch on gate. All have committed robbery and equal punishment will be imposed. There is ten-year imprisonment
either simple or rigorous with hard labour.

If a member of unlawful assembly deviate before the crime is started then he would not be guilty of crime, but if he
deviates after the crime is started, then he would be liable for the half of the crime and half punishment will be
inflicted.

Robbery involves weapon, arranged by consents, and may be attack for the purpose of robbery while thieves never
carry weapons, commit without consents, have not knife, and they resist but not attack.

If the intention is not there, there is no crime at all and nothing is punishment. Friend of offender may not be held
guilty if he has not intention. Violence is also a crime. If one of unlawful assembly kills a person with arm, who had
intention of robbery, rest would not be responsible of murder. And if three persons rape with someone after they
entered in a house for the purpose of robbery, rest would not be held responsible for rape offence.

Main offender is that who practically/actually commits crime while abettor is that who does not commit actually
offence, but instigate or provoke or encourage or advice or orders to commit offence. Main offender is also called
perpetrator while abettor is helper in commission of crime. One, who provides weapon to commit crime knowingly,
is responsible. Accomplice/helper in crime, do not play active role while principal offender commits offence.
Accomplice also desires to obtain similar results or actus reus. He shares the responsibility. If the principal offender
commits the offence for which he was not authorized to commit by accomplice, abettor shall not be responsible for
such offence. Murder is expected in robbery so he would be liable for murder if occurred during the course of robbery.

Drug trafficking by policeman to reach to gang, who actually sale, purchase, deals, is not considered accomplice while
actually it is a accomplice. This practice is adopted to apprehend the original offender. In USA, this practice is not
allowed while in Pakistan and England, it is allowed.

Victim in crime is responsible if capacity is there. A girl under 16 years of age is not liable for conviction of intercourse
even she had consented. But in Pakistan it is a crime even it is committed by less than 16 years of age girl or above 16
years of age. It is called rape or adultery. Her consents are no considered. A child under 18 years of age is not liable in
criminal cases.
One who has share intention may withdraw within reasonable time before starting the commission of crime. If he
withdraw after the commission started then he shall be liable equally. If he withdraws before reaching to home for
which he had consented of robbery, then he is not responsible for robbery. How the withdrawal is shown? Mere
expressive form is insufficient; there should be practical withdrawal. If A instigates for the commission of crime B,
while B commits crime in the absence of A, both will be responsible.

Commission of the acts, which are not authorized, may not raise responsibility. Employer is not criminally responsible
for the crime committed by his employee for whom he was not authorized, but vicarious liability may arise in civil case.

Husband and wife are considered one in each other’s cases. If husband commits crime, wife shall be responsible, but
if they are separated, then liability arises on individuals.

Insanity is a situation in which accused commits a crime in the absence of mens rea. His act under the PPC S. 84 is
without mental capacity so he does not know what he has committed actually. He cannot understand the nature of
act he done. If the following act is done in the state of total insanity then he cannot be convicted, because this was
the state where a person commits crime without any intention. Total insanity is defence.

Defective mind is another state of mind, in which accused knows what he is going to do. It is a kind that can be said
stupid, idiot, not intelligence, malfunctioning etc. A total incapable human being does not recognize the situation
arises before him, i.e., a man sitting on a chair seems to be a jar or ghost and he stabs him without knowing the actual
position of him or he hits axe to him. Held not guilty of murder but homicide. It is cleared from another
example. During a sever cold season a mad man puts fire on the camps or tents for poor to get heat for himself,
everything is burnt and people were going the here and there, but he is too calm and getting heat from fire, puts him
in a total insanity. He is not aware what is doing and it made no effect on him what he done. He cannot be held guilty
of crime.

People who are temporarily insane and their passions can easily be provoked; they cannot put insanity as defence.
They know their act. They are too violent. They may commit murder. But if at the material time, i.e., at the time of
committing murder, someone gets insanity, he is guilty of homicide but due to insanity he cannot be convicted. Such
type of person must be sent to mental hospital for medical treatment and due care. He may be released from hospital
upon total recovery.

A man, who suffers from depression, cannot put it as defence. He knows the nature of crime and also knows that
murder is a crime. But partial insanity is a defence upon the proof that at the material time he was insane.

Sleepwalking is a sort of disease in which a person may stab someone. He cannot be convicted provided at the time
of stabbing he was suffering from sleepwalking. Magic, witchcraft, ghost, elf, are not recognized in law and cannot
be put as defence.

There are two types of impulses, i.e., resistible impulse and irresistible impulse.

In resistible impulse, i.e., in the state of strong feeling, a person may resist to do anything. For example, there is a
golden watch and you think you steal it. Your mind does not allow stealing it but you steal it. It is called theft so it is
not a defence. You will be liable. But in case of irresistible impulse, a man cannot resist in doing anything. Particularly
in sex crimes someone may not resist in the commission of rape. He would be guilty of rape but his punishment may
be reduced.

Everyone is presumed sane until contrary is proved. Allah punishes madman only and courts cannot punish him
because he cannot discriminate between the right and wrong. They do not know whether what they are going to do.
Sleepwalker may also stands, goes, drink, and come back and sleeps. Insanity must exist at the time of commission of
crime. Man who was suffering from the insanity at the time of committing of crime is not responsible. Insanity while
drinking is not a defence in all over the world.
Following points are important in insanity:

1. Illusions.

2. Delusions.

3. Impulsive Insanity.

a. Resistible Impulse.

b. Irresistible Impulse.

4. Fits of Insanity.

5. Insane/Sane – State of Mind.

6. Legal Insanity.

7. Medical Insanity.

8. Insanity due to Intoxication.

Defect of Reason: Clarke – v – State: Shoplifting is a kind of theft in which accused steals from shop without intention
due to absent mindedness and lack of control over his senses. In the said case accused was patient of diabetic and
due to sugar deficiency he lost his senses during shopping and steals something without having intention. It is partial
defence. Held guilty of theft but punishment was reduced.

Burgers Case: This is a case of sleepwalking in which a man wounded a woman while sleepwalking. There was medical
evidence indicating that at the material time he was suffering from abnormality due to an internal factor. Held disease
of mind. It is complete defence.

Byrne – v – State: A man was sexually perverted and had desired to satisfy. He raped a girl and later killed. He was
charged of murder but he pleaded diminishing responsibility. Evidence of strong desire was there. Held guilty of
murder and punished with life imprisonment.

Provocation: It is a loss of self-control due to faulty reasons temporarily. There should be reasonable relationship,
immediate reaction, and punishment commensurate to the provocation. It is a state of mind in which intellect
deadens. It happens when self-respect is injured. It is complete defence. There are many reasons that provoke a
normal person, e.g., cultural background, sensitive insanity, climatic conditions, weather, literacy, habits, emotions,
weaknesses, health etc. An illiterate man in Baluchistan gets immediate provocation than of educated of Lahore on
reason of passions. Upon abuses of sister, an educated person of London does not provoke but it provokes to
educated person of Lahore, on the ground of culture.

Edward – v – State: In this case accused followed the victim from Australia to Hong Kong for the purpose of
blackmailing. Accused went to hotel to see victim. There was fight between two of them. Accused claimed that victim
attacked him with knife and inflicted several wounds. Consequently he snatched knife from him and killed him. It
brought to the notice of Court that accused was provoked. He was not guilty of murder but manslaughter.

Fateh Muhammad – v – State: Accused killed his wife while she was found in objectionable condition with her
paramour. Held provocation to be accepted as defence.

Rehmat Ullah Khan – v – State: Accused was a policeman, posted on duty near to home. His wife came to him naked
and told him that a man had entered to home and outraged her modesty and she had locked him in a home and come
to inform him. He lost his self-control and went to home and fired three shots and killed. Held provocation is a good
defence in this case.
State – v – Khushi Muhammad: Accused killed his wife simply on the base of doubt of intimacy with someone. Held
he is not eligible to get the benefit of exception.

Intoxication: Who takes intoxication is liable and it is not a defence in all over the world. If it is administrated
involuntarily, then it is defence. A man drunk heavily and killed his wife. He claimed no guilty. Held voluntary
intoxication is not defence.

Automatism: There is no provision of automatism in Pakistan Penal Code. It is a state of mind in which act of a person
is beyond his control, is known as automatism.

In the case of Hill – v – Baxter, it was said that accused was driving and attacked by swarm of bees, he lost his control
over driving and an accident happens. In another case motorcyclist lost his control when he received a sudden blowout
or brake failure.

Difference between Crime and Tort: It is very difficult to draw a clear-cut distinction between a crime and a tort. A
tort today may be a crime tomorrow and vice versa. Tort is a private wrong or infringement of a civil right while public
wrongs are violations of rights.

If the offence is serious, it maybe treated as crime, and if it is not, it may be treated as tort.

Definition of Crime: Crime is an illegal act or omission prohibited by and punishable at law, and for which a special
procedure is provided at law to punish the offender.

Definition of Tort: Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons
generally and its breach is redressible by an action of un-liquidated damages.

Judicial Decisions: Tort involves a civil remedy or damages while punishment is imposed in crimes.

Case Proceedings: Tortuous or civil proceedings are started in civil Court purpose of which is enforcement of certain
rights claimed by the plaintiff against the defendant. Examples of civil proceedings are an action for restoration of
property, recovery of damages, etc. Proceedings of crimes are started in criminal Court for the punishment of offence.

It is possible that torts may give rise to civil and criminal proceedings, i.e., assault, defamation, theft, and malicious
injury to property. In these cases both proceedings are concurrent proceedings. The wrongdoer may be punished by
imprisonment or ordered to pay compensation to the injured party.

Magnitude of Wrong: Civil liability is measured by the magnitude of the wrong done while the measuring the criminal
liability we take into consideration the motives, intention, character of the offender, and the magnitude of the
offence.

Nature of Wrong: Tort is a breach of duty primarily fixed by law which duty is towards persons generally while crime
is the commission of prohibited act with ill will or guilty mind.

Nature of Decisions: Punishments are awarded for the purpose of deterrence in crimes while remedy in term of cash
compensates the victim. In other words chief object of punishment is deterrence while remedy in the form of damages
is imposed to take measures for prevention of violation of private rights.

Elements of Wrongs: Mens rea requires to constitute the crime along-with actus reus while only action is sufficient to
constitute tort and ill will is no more necessary. One, who trespasses another’s land or body, must have to pay
damages.
Crime does not complete until or unless actus reus takes place. Just mens rea is insufficient to constitute the crime
while tort may occur without injury, i.e., simply trespass to other’s property is a tort without injury. Here
maxim “injuria sine demnum” applies.

Compound-ability of Wrongs: Tort is compound-able by the private party and state cannot interfere or compel for the
withdrawal of case because crimes are against the state and not compound-able being public wrongs.

Parties in Cases: Both parties are private or common persons in tort as plaintiff and defendant while state is a party
being victim in criminal proceedings and other one is accused.

Attempt in Wrongs: An attempt to commit a crime can itself be an offence while attempt is not considerable to
constitute tort.

Commencement of Wrongs: Crime requires preparation while tort can be committed without it.

Defence as Innocent Actions: Innocent action in crime may be a defence in some cases but tort does not recognize
innocence.

Age Limit in Liability: Child under the age of 7 year is regarded by law as “doli incapax” incapable of having mens
rea while tort may takes place by an innocent child and he may be sued through his next friend, i.e., parents or
guardian.

Defence of Insanity: Insanity is a good defence in crime but not in tort. Provocation or instigation or temptation is
defence in crime but not in tort.

Intention of Wrongs: “Crime is an unlawful act or default which is an offence against the public and renders the person
guilty of the act or default liable to legal punishment. While a crime is often also an injury to private person, who has
a remedy in a civil action, it is an act or default contrary to the order, peace, and well-being of society that a crime is
punishable by the state.” Action under mistake is not a crime. For example, a policeman goes to arrest A, but actually
he arrests B, thinking to be A. since he has not guilty mind so he is not responsible, while mistake is not considered in
tort at all.

Unborn Children’s Liability: Unborn child can sue after he is born in civil cases but there is no legality of unborn child
in crime.

Waiver: Criminal law does not allow waiver in case where privilege class has been exempted from liability while in tort
waiver can be used.

Codes applicability: Criminal Procedure Code is applied in criminal cases while Civil Procedure Code is applicable in civil
or tort cases.

Pakistan Penal Code (PPC): Territorial and Extra-Territorial Jurisdiction: § 2 & 3 deals with territorial jurisdiction. PPC
is applicable in entire Pakistan. Where there is no control of Pakistan, e.g., FATA or FANA, there is Jirga System. People
decide their cases with traditional method in which sages decide their case with mutual consultation. This consultation
is made among similar people. They have their own customary laws. If offence is committed in Pakistan and offender
is run away to FATA or FANA, he is arrested through Political Agent.

Sea limits were 14 kilometer, and now have been extended upto 27 kilometer. Any crime committed within this limit,
or on ship bearing Pakistan Flag, is considered as committed in Pakistan and tried in Pakistan under PPC.
Any crime committed in space of Pakistan is just like committed in Pakistan. It will be treated as the same manner.
Crime committed either in PIA or British Airway is likely committed in Pakistan. Ambassador, Foreign Sovereigns,
Diplomats are immune being diplomatic community.

If Pakistani national commits an offence in England, he can be arrested and brought in our Court for trials.

Prisoners of war are tried under martial laws and not under PPC. If English or American businessman has committed
offence, he also can be tried under PPC.

A person, who commits hijacking or kidnapping, commits crime from where he passes or where he reaches. An
offender who commits hijacking in Lahore, later he reaches at London, then Kabul, he commits crime at all places. He
can be tried at the place where he will be arrested.

If an accused has committed a crime, arrested, convicted, and punished, the same series or one of them cannot be
repeated.

If there is no man land between the two countries, accused will be tried, forces of which country will arrest him.
Persona non-grata is the person who commits crime but being diplomatic community he is immune to convict and is
declared person not acceptable being diplomat.

Moveable Property means property that can move from one place to another. Anything which is moved must be
corporeal, i.e., solid. It can be touched with senses. Anything that is fixed or attached with the earth either directly or
indirectly is not moveable property. House is fixed in earth. Ceiling fan, black board, tree, flower, tube light are not
moveable properties, but as soon as they are removed from the place to which they are fixed or attached, they
become moveable property. Moveable property can be stolen. Tonga attached with horse is stolen wen horse is
stolen and all other thing which lied in it. In other words moveable property can be taken away by thief. S. 22 deals
with moveable property.

S. 23 deals with wrongful gain and wrongful loss. It means taking away of property from its master even for a while
with the intention to wrongful loss to him. It deprives owner to get benefits arises from the possession. If A takes
away a thing from B, without his consents, with the intention of keeping it until he obtains money from B as a reward
for its restoration. It has caused wrongful loss to B and wrongful gain to himself and thereby commits theft. If a watch
is purchased from market, it is not theft so there is not wrongful gain or loss. If a person purchases a stolen watch
from market without knowledge of its theft, he commits no theft, so did not neither gain wrongfully nor wrongful
losses. If A steals a watch, and B steals it from A, and destroys it, he has not wrongful gain and not wrongful loss to
A, but he has caused a loss to the actual owner of the property.

S. 24 belongs to dishonesty. Whoever does anything with intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that thing dishonestly. Here dishonesty is different than of its general
sense. It refers to property only. Intention is important. If A does commit theft with the property of B and C looks
whole the game but conceals the facts, he committed not dishonesty but it is a moral wrong.

Fraudulently, u/s 25, means a person to do thing fraudulently if he does that thing with intent to defraud but not
otherwise. If a person produces a forged document before Court with the intention to make the Court believe that he
was entitled to recover money upon the basis of document produced. If a student produces forged degree to get
admission in college, character certificate with forged signature that does not appear correct actually, is
called fraudulently. It includes deceitful means to do that is not to be done. Fraudulently is a broader term while
dishonestly is a part of it. Property may not involve in it. Dishonesty covers gains and loss in property. There are certain
acts, which are both dishonesty and fraud.

S. 26 deals with Reason to Believe. It means standard of reasonableness. It means opinion of average person in a
street to think about a particular thing. If A stabs B thinking that it does not cause death, would be tested by the
opinion of other people in the same cadre. If a doctor operates a patient and he died would be tested by the opinion
of other doctors involved in the same operation. Knowledge, which is based on reasonable information or skill, is
called reason to believe. If we purchase anything from open market, cannot be think stolen thing because we have
taken reasonable care. But if there is vast difference in price, then there should be doubt. Ghosts are not reason to
believe in case of murder. Although Quran has specified ghosts but for the convenience to decide cases in this world
it has no reason to believe.

S. 28 is related to counterfeit. It means imitation for the purpose of deceives to other person. If an ordinary person in
street feels something is original, although that imitation is not exact, even then that is counterfeit.

If someone prepares currency Notes which resembles to original and deceives anybody, amounts counterfeiting.
Bankers are not deceived, so then it is does not amount counterfeiting, but shopkeeper is deceived then it is
counterfeiting. It relates to deceive a common person.

Counterfeiting is offence when society is deceived. It can be found in everything such as manufacturing of cloth. Made
as Japan is also counterfeiting because ordinary person is deceived. Three years imprisonment is the punishment.
Forge documents for the purpose of transfer of land is counterfeiting. Japan Fan is not counterfeiting because it is a
name of company and its products are made and acclaimed made in Pakistan.

A document u/s 29 is a material written or described on any substance and carries some meaning and can be produced
as evidence in Court. All written materials regardless written on cloth, paper, stone, leather, tree, bones etc. is
document if it carries some meaning within the meaning of this section. It is may be as ABC or 123 or ?-@$/=, but it
should must carry meaning. Bloodstains on cloth are also a document. Black board, affidavit, engraved name on tree,
glass, plastic, iron, brick is document. Engraved engine number on motor cycle or pistol is document. Wound mark on
body is also a document, but an expert should medically examine it and his report will be a document.

Valuable Security S. 30: It is a type of document, which creates legal right, terminates, extends, transfers, restricts, or
releases the rights is valuable security. Payment through cheque, draft, money order, are valuable securities. If I sell
my home my rights are finished and rights of buyer are created through sale deed, which is valuable security. All
documents are not valuable security but all valuable securities are documents. Copy is not valuable security. Cancelled
cheque or draft is not valuable security.

Common intention S. 34: It means prearranged plan to commit a crime or the intention, which brings same results. It
applies where more than one and less than five person are engaged together to commit a crime. They know each
other’s intention and they share it together. Responsibility is shared and results are obtained, it constitutes common
intention. Equal desire and intention make people equally responsible and equal punishment is given. Peaceful
intercession does not constitute common intention. Conspiracy between teacher and disciple is common intention.

Common object u/s 149 has resemblance with S. 34. It is applied where five or more persons of unlawful assembly
commit offence.

Voluntarily: It applies to criminal intention direct or indirect, express or implied. Direct or express intention is proved
with confession while implied or indirect intention is proved with evidence. Many witnesses may appear in Court of
law to testify that particular offence has committed. If A is driving a car rashly and consequently a passerby is caused
death, does not amount voluntarily, because there is no intention to put passerby to death. In another example A,
sets fire on a home by night, for the purpose of facilitating robbery and thus causes death, it does not constitute
murder but manslaughter.

Injury as per S. 44 denotes to harm or fear of harm, to body of person, reputation, property, or mind of a person.
Injuries to mind means where somebody gets mental shock due to illegal act of another person. Injury to property
means trespass or arson where both criminal and tortuous liabilities arise. A car met an accident; it is injury to car and
damage as well. A police officer detains a person and then release him upon receiving money; he has put him in fear
of injury.

Good Faith u/s 52 means anything, which is believed or done with due care or attention. It is also a defence in criminal
cases. It includes recognized method, care, and qualification in most dangerous professions.

Doctor should apply recognized method of operation over a patient, who is not qualified, cannot put previous cases
as proof. If person on footpath applies operation methods over a patient and patient dies, cannot say that he has been
applying these methods previously with positive results.

Types of punishments under Pakistan Penal Code (PPC) inflicted to criminals:

Following are the punishments available under Pakistan Penal Code (PPC) inflicted to criminals:

Death: This punishment is inflicted in case of murder, waging war against government, mutiny, double murder, high
jacking, robbery, false evidence in same cases, rape, false claim of apostasy, abetment in all following cases. Death
penalties also abolished in England, most of European countries, and some states of USA. However, even in these
countries, death penalty is still awarded for the offences of treason, double murder, and murder of member of royal
family. Killing of Prime Minister and President is also a liable to death.

Imprisonment: It means to put wrongdoer in jail or put behind bars to live in till its completion. It has two kinds as
follows:

Rigorous imprisonment: It includes hard labour or working. Accused has to do carpeting, grinding, handicraft,
or digging earth etc.

Simple imprisonment: Accused is put in jail to stay there without doing anything.

Length of imprisonment: Maximum imprisonment in a single case is life imprisonment, i.e., 14 years and minimum is
till the rising of Court, e.g., whenever judge will leave, accused will be free. To decided simple and rigorous
imprisonment is not a discretionary matter, but it is matter of law, whatever it is.

Imprisonment in default of payment of fine: If offence is punishable with both imprisonment and fine, then
imprisonment in default of fine shall not exceed ¼th of the term of imprisonment which is the maximum fixed by law
for the offence.

Following is the scale of imprisonment in case of default:

Fine Imprisonment

Upto Rs. 50/- 02 months

Rs. 51/- to Rs. 100/- 04 months

Rs. 101/- onward 06 months

Whenever fine is paid, imprisonment is finished. If it is paid partially, imprisonment is abated proportionally.

Solitary confinement is a mental torture to accused. The purpose for keeping the prisoner in solitary confinement is
to isolate him from any kind of discourse or contact with the outside world. It is inflicted in order to provide an
opportunity to the prisoner of feeling of loneliness for creating wholesome influence to perform him. Following scale
is followed:
Solitary confinement of:

One month = if term of imprisonment is not more than six months.

Two months = if term of imprisonment is not more than one year.

Three months = if term of imprisonment is more than one year.

Solitary confinement cannot be awarded in lieu of fine as part of imprisonment. It shall not exceed 14 days at a time
with intervals between the period of it and it shall not exceed seven days in any one-month of the whole imprisonment
awarded, with intervals between the periods of it.

Fine is awarded in deserter concealed on board merchant vessel, abetment in bribery, liable, agent for the benefit of
riot, false statement for elections, illegal payment in elections, noxious atmosphere, nuisance, and lottery office.

Whipping in alternative or in some cases additional punishment for certain offences. It is awarded for theft, wrongful
confinement, rape, unnatural offences, robbery, and dacoity.

Detention in reformatories: This is imposed on teenagers or young children. They are left with their parents upon first
offence. Sometime they are sent to reformatory centers or schools where they get education to become good
citizens.

Forfeiture of property is orders in waging war to government and illegal disposal of property.

Hadd means a thing which distinguishes the two ones. Extreme of a thing is also called a Hadd and it is a fixed
punishment in which judge has no desecration to inflict on offenders. These punishments are described in Quran.
These are seven in numbers, i.e., theft, murder, dacoity, apostasy, adultery, mutiny, and alcohol consumption. These
punishments include simple and rigorous imprisonment, whipping, stoning to death, beheading, amputation of hand
and foot, and fines etc. Punishments are inflicted keeping in view of severity of offence.

Taazir is unfixed and discretionary punishment in Islam. It is other than Hadd. It is inflicted as the magnitude of the
office is.

Retaliation or Qisas is a punishment, which is also fixed by Allah. Qisas is compound-able punishment while Hudood
are non-compound-able. Qisas is the infliction of the pain in the same manner and on the same part of the body,
without any discrimination. It means punishment by causing similar hurt at same part of the body of the convict as he
has caused to the victim or by causing his death if he has committed qatl-e-amd. The basic principle of qisas is equality
or similarity. It aims at to cause similar hurt at the same part of the body of the convict as far as possible, keeping in
view the opinion of the authorized medical officer as the offender has caused to the victim.

Diyat or Blood Money means the punishment in the form of compensation to be paid by the accused to the heirs of
the victim.

Exemptions (defences) in Pakistan Penal Code (PPC):

1. Mistake of fact: Nothing is an offence, which is done by a person who is bound by law to do that thing, or who by
reason of a mistake of fact and not by reason of a mistake of law, in good faith believes that he is bound by law to
do that thing.

It should includes reasonable believe which does not exist. Person not only be a honest but also due care and
attention must be there and applied.
A lawful act done in pursuance of order of command is not offence. A policeman set fire on mob by order of his
superior in accordance to law is not an offence.

An unlawful act in lawful manner in suspect is no offence. An officer of Court arrests B, considering A, by reason
of a mistake of fact, in good faith, committed no offence.

In a case of State – v – Rose, a child killed his father believing his father is going to cut off throat of his mother.
Held defence being mistake of fact.

Timmappa – v – State case says that accused and deceased went in jungle for hunting. They took positions.
Deceased changed his position without brining into the knowledge of his companion. Accused shot dead him
accidentally and mistakenly.

State – v – Le-Kandan: Accused gave grievous hurt to victim believing a ghost and proved fatal injury. Held no
offence even ghosts are not recognized under any law in the world.

In Sukaroo – v – State case, an operation conducted without lawful authority and cut off the internal piles with
ordinary knife. Man died. Held no reasonable care and attention applied so guilty of murder.

2. S. 80 is related with accident, which is done by misfortune and without any criminal intention or knowledge in
doing of lawful act, in lawful manner, by lawful means, and with proper care and attention.

During horse riding, horse became out of control and killed a man, held not liable. But shooting of a bird in home,
causing injury or death to person is no defence. Where there is precautionary measures, negligence of victim is
not defence.

If a stone is thrown on car, driver may lose its control over driving a car and consequently it may hit to passerby.
It is complete defence.

Tunda’s case: Where there a lawful game is played with consents and consequently without any intention any
accident causes injury or death, no offence commits. In this case two wrestlers were doing wrestling. Accused
thrown the deceased and his head come in contact accidentally with the hard edge of the
adjoining Chabutra, which results fracture and then death. Held implied consents of suffering, no fowl play, and
criminal intention. It was pure accident.

Ramption’s case: If an act is done with reason to believe which is in normal circumstances is unlawful is not
defence. A man found a pistol in street, and in his opinion it was unloaded. He showed it to his wife, she remained
stand there. He pushed trigger and bullet passes her and caused death. Held manslaughter.

Jagosher’s case – v – State: In this case it was held that an unlawful act done negligently is not excuse. During the
beating of a person, his wife carrying a baby came to interfere, gave two blows to baby. He died. Held, no defence
because he did not do lawful act in lawful manner.

Timbu Kolian – v – State: Unlawful act in negligence is no defence. During house quarrel a man was exchanging
verbally and went outside and sat down. His wife followed him outside and continues rebuke him. He picked up a
light stick and without knowledge that she is also carrying a baby, thrown towards direction of voice. The blow
struck baby and died. Held manslaughter because he done unlawful act negligently.

3. Infancy: According to S. 82 of Pakistan Penal Code (PPC), nothing is offence which is done by child under seven
years of age. S. 83 says, nothing is an offence which is done by a child above seven years of age and under twelve,
who has to attained sufficient maturity of understanding to judge of the nature and consequences of his conduct
on that occasions.

Child under seven years of age is doli incapax, incapable to commit an offence, since he cannot distinguish
between right and wrong.

Children, who are of sharp mind, have sufficient maturity, intelligence, spoiled, can be convicted, if they are
between seven to twelve years of age. If Court comes at the conclusion after cross-examination that child has
attained sufficient maturity, then he can be convicted, otherwise they are not taken behind the bars.

In case of Ullah Mahapatra – v – State, accused was a child under twelve years of age but above seven years. He
picked up a knife and advanced towards deceased with a threatening gesture, saying that he will cut him into
pieces and actually he done offence. Held he was known the action and its consequences, so he is guilty of murder.

In a case of Aimona, who was accused and ten years of age slept with her mother-in-law, and her husband aged
nineteen years slept with his brother in another hut. In early morning her mother-in-law told her to do household
duties. She went in room of her husband and cut his throat, and run away and tried her to hide in fields and couldn’t
be found till after noon. Held she was doli capax, say capable to commit an offence of murder.

4. Intoxication is not defence in all over the world. In a case of Manzur Hussain Shah – v – State, a mendicant was
the member of a group being tried to religious dance. One of them instigated to accuse to do dance after taking
intoxication and he did so. Held he was aware and his consents were there. His drunkenness was voluntarily and
he was not even so intoxicated as not to understand the nature of his act.

5. Consents § 87 – 92: Some injuries are covered in consents. If someone injures anybody, then consent is not
defence. To injure someone on other’s will is not defence. To injure himself is not defence but in case of suicide, if
commission is completed, then he cannot be convicted, because he died and goes away within the reach of law
and this matter goes towards Allah Almighty. If the act of suicide remains incomplete and just attempt is done
then one-year imprisonment and also fine can be imposed. Consents become defence if injury inflicted is minor,
otherwise it is not defence. U/s 90, free consents can be given only for benefit or for lesser evil. A person who gets
serious injuries and he may be treated either by operation with injury, which is lesser evil or remains let die, he will
be treated with operation which is lesser evil inflicted for his benefit.

Wrestling, boxing, hockey, football, volley ball are lawful games and can be played with consents and if minor
injury occur then consent is defence provided there was not negligence. If a labour puts some bricks on his head
and take away on the upper part of building, to receive money, gets injury, cannot claim damages because
consents are there.

Consents are defence when they are given for the benefit of the society or individual. In emergency cases of
hospital, consents are not taken. It is presumed that consents have been taken, called silent consents.

All the lawful games should be played lawfully and by lawful manners. Fencing is unlawful game. Consents in
unlawful matter are not defence. Also mercy killing is not allowed in all over the world even with the consents of
the deceased person. Only Allah can take the life and no one else or by law. Death is only in the hand of Allah.
Defence cannot be put up where consents are given in prohibited matter. In case of Bradshaw – v – State, it was
held that fighting with deadly weapons couldn’t be played thus cannot take the benefit of consent. Consents in
lawful game became irrelevant when the unlawful manner is applied. If wrestler declares truce, and other
continues fighting to cause injury, cannot get the benefit of consents.

In case of Sukaroo Kabiraj – v – State, accused was uneducated in the matter of surgery. He operated a patient
with ordinary knife, which caused death. Held liable and consents are irrelevant.
6. Necessity and compulsion: It is defence if it is done in good faith to avoid risk or harm and if it is done without
intent to avoid harm to person or property then it is not offence. A captain of vessel without intention and
negligence found in a position to run down a boat with twenty-five passengers on boat is not guilty of murder. To
save own life, it is not allowed to kill other for feeding purpose. It was held in Dudley & Stephen case in 1950.
Murder only can be committed where self-defence allows with certain limits. Two offences are exclusively
prohibited under the situation of necessity and compulsion that are murder and treason or offence against state
punishable with death. In case of murder or treason, no man has a right to take life of other to save himself. Martial
law is claimed to enforce under necessity caused by law and order situation. If an act of other causes danger then
necessity comes into action. If a house goes in fire and anybody goes in house to prevent the loss in good faith
but loss occurs, it is defence. Operation of cancer patient in case of uncertainty can be done if chance of life is rare.
Always lesser or mitigate evil is preferred. If operation is done and patient dies, it is defence. Act of child under
seven years of age, person of unsound mind, involuntary intoxication, without intent and negligence, with
consent, for the benefit of child or unsound person are not offence.

7. Defence of person and property § 96 – 106: It is duty of state to protect life and property of every individual. But
it is fact that state cannot provide such protection in way to provide guard to every one. In order to protect every
individual and to achieve this object, law permits every one to protect his life when danger is or to be caused.
Physical harm is immaterial. If just apprehension is there, reasonable force can be used for the preservation of life
and it is right of everyone. This right is bestowed by Allah Almighty. Allah gives life and only He can take it back.
No one is allowed to take life of other except provided in law. Everyone has right to enjoy his life and property.
Everyone knows that right of human being should not be infringed. I have book and house. This is my property.
No one can be allowed to snatch or occupy such things.

Purpose of protection is preservation of human life and property. It also mitigates the occurrence of the offences.
It brings down the violation. Instincts of self-protection not only exist in human being but also in all creatures such
as animals and birds and even in floras.

The right of self-defence has been recognized since time immemorial. Everyone wants to live and not to die.
Prolong life is right of everyone. In earlier time this right was available to the extent of only blood relationship,
e.g., father to son; mother to daughter; brother to sister or brother; grand relatives to grand relatives etc. Later it
was extended to other like teacher to student and in law relatives. Now in modern time, particularly after 1945 –
50, this right has been extended to everyone. If a girl is being beaten without any reason, everyone can interfere
to save her life. Strangers can be protected.

In the matter of self-defence, it should must be kept in mind that right of self-defence arises when unlawful use
of force is applied. If there is no unlawful use of force, right of self-defence is not available. If the offender is caught
then he cannot be killed, but if the danger is there, wait of police authority becomes immaterial.

There are some restrictions to the use of force while the danger of use of unlawful force.

i) Attack should be unlawful: Right of self defence is available there, where unlawful force is used to takes
others’ life or property. Future threat is insufficient cause to use force against the person. If someone goes to
home to take weapon to kill other, other should run away to mitigate the danger. But if the danger is
proximate then during the time, lawful authorities should be invited or weapons should be arranged to
mitigate the threat of danger. Just killing of other person in defence is not a matter. If precautionary measures
can be taken to avoid risk, it must be taken into consideration.

ii) Apprehension of danger: You should not wait until a person attacks you and kill you. Danger can be
apprehended or perceived from the act going to be done. If a person brings pistol or load it with pellets, wait
to stretch/overestimate pistol becomes immaterial, attack over him can be done. The right of self-defence
commences when danger to life commences, and it ends when life ends. Do not wait police and protect
yourself. When running away is best solution to avoid the risk, it is best way and do not take law into your own
hands. Law does suit in the hands of public authorities. You may stick if you are standing on your own land or
home and fully allowed protecting your life and property, too. Try to occupy illegally, property of others, can
be interfered with weapons without wait of police. The test is whether an ordinary man, placed in these
circumstances, would have foreseen the coming danger.

iii) Use of reasonable force: The threat or presence of danger does not permits to defender to use unlimited force
against accused. It should must be commensurate whether the force used in self-defence was reasonable in
relation to apprehension of danger is a question of fact.

Sardari case is an example of non-reasonable use of force. Killing without warning while entering in disputed
land that was action beyond what the law permitted him to do so. He exceeded in self-defence. Held murder.

In case of Muhammad Yaqoob – v – State, accused inflicted 28 injure to deceased to save himself form sexual
offence. Observed that after infliction of first injury to make him disable the right of self-defence comes end.
It is a clear case of exceeding use of force in private defence.

But it is very difficult to apply exact amount of force required for the purpose. In the heat of passion or
provocation, it is difficult for defender to measure force step by step. It cannot be weighted in golden scale.
Force should be used in good faith.

Bashir – v – State case is the example of appropriate apprehension of danger to protect self without proving
that injuries were actually caused to the danger. Immediate apprehension of danger is enough though no
actual harm is caused.

Jamal Din – v – State case is an example of defence of other who was in danger. Accused apprehends
immediate danger to his brother, who was surrounded by group of offenders and they were attacking.
Accused fired and killed one person. Held self-defence.

If thief has given away your property, yours right to chase him ends. Attack on thief is not allowed until
apprehension of danger is not happened. Thief only can be arrested. In case of robber, use of force is allowed
when property is stolen, right to recover begins and when property is recovered, right to defend ends. Do not
attack upon possession. If danger over property or self is over then right of defence is over. If thief refuses to
dispossess stolen property then force may be used.

Rioting § 146 – 148: Whenever an unlawful assembly uses force or violence or by any member thereof in prosecution
of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

There are two things, which convert an unlawful assembly into a riot, that is:

a) The use of force or violence by an unlawful assembly or any member thereof, and

b) Such force or violence being used in prosecution of the common object of such assembly.

There are three ingredients of rioting:

(a) An unlawful assembly,

(b) Use of force or violence by such assembly or any member thereof,

(c) Such force or violence should be used in prosecution of common object.


Peaceful part played by any member of the assembly is no more important, mere intention is sufficient. Whoever is
guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years,
or with fine, or with both. Use of deadly weapons is also a greater offence.

Affray S. 159: When two or more persons, by fighting in a public place, disturb the public peace they are said
to “commit an affray”.

The ingredients of the offence are:

1. Fight between two or more persons.


2. Fight must be in public place.
3. Disturbing the public peace.

Mere abusing or beating without retaliation is no offence of affray. It takes place where breach of peace or assault is
committed.

Difference between riot and affray:

Riot Affray

1. Public peace is immaterial. It can be 1. It is disturbance of public peace.


committed on private place.

2. Committed by five or more person. 2. Two or more persons commit affray.

3. Every member is punishable even not 3. Only fighters are guilty of affray.
violation is committed.

4. Punishment is two years imprisonment, or 4. Punishment is one-month imprisonment,


fine, or both. or fine of Rs. 100/-, or both.

Abetment SS 107 – 117: It is a separate and distinct offence provided the thing abetted is an offence. Abetment itself
is not a crime but it fixes responsibility in aiding to commit an offence. Abettor is equally responsible as the principal
offender is.

There are three types of abetment, i.e., where offence is committed by instigation, engagement of two or more
persons in any conspiracy, or intentionally aid a person in committing a offence.

1. Abetment by instigation: Instigation may happen by any method, such as, conduct, advise, suggestion, threat,
letter, telephone, through a third party, and permission. If the offence is not committed, it is just an attempt to
abet. In a case of Tej Sing – v – State, widow of deceased person was leading a funeral procession. Accused
encouraged widow to commit suicide by surrounding the police in order they may not interfere. The widow burnt
herself. Held guilty of abetment of suicide by instigation.

2. Abetment by conspiracy: It is a combination and agreement by person to do some illegal act or to do legal act by
illegal means. Forge document for the purpose of false evidence is abetment by conspiracy. Obtaining LLB degree
is legal object but its receipt without sitting in examination is illegal.

3. Abetment by aid: Aid or help in commission of crime is abetment by aid. Mere presence and awareness at the time
of commission of offence is not abetment unless influence is used or facility is provided to commit crime. Marriage
registrar at the time of second marriage may be held guilty of abetment by aid but member of ceremony are not
abettors mere on the ground of members of the celebration.

In old English law criminals were divided in three classes, i.e., principal offender, accessory before the fact, and
accessory after the fact. In Pakistan law there are only two categories, i.e., the principal offender who practically
commits an offence and abettor, who instigates or helps or conspires.

Formula for Abetment: I. E. I.:

1. Instigation a person to commit an offence.

2. Engages other persons in conspiracy to commit an offence.

3. Intentional aiding a person in such a way that it may cause facilitation for commission an offence.

This may amount abetment.

Criminal conspiracy § 120-A – 120-B: It is an agreement of two or more persons to do or cause to be done an illegal act
or act which is not illegal but committed by means of illegal, such a agreement is designated a criminal conspiracy.
Mere understanding or agreement is enough to constitute the charge of criminal conspiracy. Needless to prove
commission of practical offence. Just arrangement of weapons to facilitate the offender is sufficient.

If A gives a parcel to B to deliver it to the house of C which actually contains a bomb which A intends to cause criminal
damage to C’s house. Both A & B are not guilty of criminal conspiracy unless B knows the actual intention of A that he
wants to damage property of C. Overt act must be done to constitute criminal conspiracy.

Qatal or murder defined as causing death or killing a human being by human being. There are two broad categories
of murder, i.e., lawful murder and unlawful murder.

Lawful murder is divided into three kinds as follows:

1. Accidental: It is death where act to cause death is unintentional, unplanned, by mistake, in doing lawful act, by
lawful manner, and by lawful means with due care and attention. For example, A has valid driving licence, driving
a car on road with due care and attention at appropriate speed. Suddenly a passerby comes before him and died,
is unintentional and accidental death.

2. Justifiable: This sort of killing is provided in general exceptions of Pakistan Penal Code (PPC). It is a death, which
is committed by mistake of fact or judicial decision. A judge may convict an offender after fair trials and convict is
hanged is judicial death. Self-defence is also covered under exceptions.

3. Excusable: It is a death, which is caused by involuntary intoxication or by person of unsound mind or minor.

There are four types of unlawful murders as defined in Qisas and Diyat Ordinance:

1. Qatal-i-Amd or intentional murder S. 300: There are five essential ingrediants of Qatal-i-Amd, that are:

a) Causing death of human being;

b) Death should be caused by an act;

c) There must be bodily injury with intention;

d) The act in the ordinary course of nature is likely to cause death; and

e) Knowledge of dangerous act and can cause death.


Further death should be direct result of the injury inflicted to deceased.

Punishment: There are five possible penalties:

a) Death as Qisas;

b) Death or life imprisonment as Taazir;

c) Imprisonment for twenty-five years where Qisas is not applicable. It is inapplicable in the cases of minors,
pregnant women, older people, person on bed of death etc.; or

d) Imprisonment as under Ikrah-I-tam; or

e) Ikrah-I-naqis shall be punished in one of the three ways mentioned above, whichever suits.

Qisas means to copy the other or to follow the path followed by other, or act like the act of another. It is infliction of
similar injury to the convict.

Qisas is not applicable:

1. Where offender dies before the enforcement of Qisas;

2. Where right of Qisas is waived off by any Wali;

3. Where the right of Qisas devolves on the offender; and

4. Where the right of Qisas devolves on the person who has no right of Qisas against the offender.

Qisas is not levied on the following four persons:

1. Where offender is minor;

2. Where offender is insane;

3. Where the victim is child of offender, or grandchild, or how-low-so-ever.

4. Where any Wali of the victim is direct descendant how-low-so-ever.

Taazir means punishment prescribed and awarded by the Court other than Qisas, Diyat, Arsh, or Daman. It includes
punishment of imprisonment, forfeiture of property, and fine. It is left at the discretion of Court according to facts
and circumstances of the case. Compound-ability does not mean that as soon as Diyat is paid, compound-ability is
granted, the convict is released or gone away from jail, but he is kept behind the bars and compound-ability is just
conversion of death penalty by way of Qisas to imprisonment.

Diyat is a specific compensation payable to legal heirs of the victim and not victim or his heirs, by the offender. It
means it is applicable in case of murder only. It is not paid in the cases of hurt or injuries. In default of payment of
Diyat, convict is to be kept in jail to suffer from simple imprisonment until the Diyat is paid in full. If convict dies before
payment of Diyat, it is recovered from his estate.

2. Qatal Shibe-i-Amd S. 315: It is also called culpable homicide not amounting to murder. If act caused death is done
with intention of causing death or bodily injury as is likely to cause death, the punishment will be greater.

If act caused death is done with knowledge that it is likely to cause death but without intention to cause death,
the punishment will be lesser.
The essential ingredients are:

a) Causing death of a human being;

b) There was an intention to cause harm on body or mind;

c) By means of weapon or an act; and

d) Act is not likely in ordinary course to cause death.

Punishment of culpable homicide not amounting to murder is Diyat, or imprisonment upto 14 years, or both.

3. Qatal-i-Khata S. 318: Ingredients of this offence are:

a) Causing death of a human being;

b) Causing death of a human being unintentionally;

c) Death by mistake of fact; and

d) Death by mistake of act.

Punishment of this murder is obligatory. Sentence of Diyat and imprisonment for five to ten years may be awarded if
the act is rash and negligent.

4. Qatal-i-Bis-Sabab S. 321: Ingredients are as follows:

a) Causing death of a human being;

b) Unintentionally;

c) By an unlawful act; and

d) Unlawful act causes death.

It is punishable with Diyat.

Offences of hurt: Hurt is harm caused to human body other than death. The ingredients of hurt are:

1. Causing to any body;

2. Pain, harm, disease, infirmity, or injury;

3. Impairing, disabling, or dismembering any organ of the body; or

4. Without causing death.

Formula for Simple Hurt: B. I. D.:

Bodily pain, Infirmity, and Disease

If touch causing pain, abnormality, in contrast of normal way, anything which causes or effect the normal functions of
any organ of body. Any person’s act, which causes bodily pain, abnormality, and abnormal function of body organ,
and inability to perform normal function of organs.

Formula for Grievous Hurt: Eid-e-Fitar:


1. Eye’s privation permanently, especially the sight.

2. Ear’s privation permanently, especially the hearing.

3. Infirmity of any organ permanently.

4. Disfigurement of any face or hand or feet.

5. Emasculation.

6. Fracture of any bone.

7. Injury on account of which the effected person.

8. Cannot peruse daily routine upto 20 days.

9. Tooth or teeth dislocation/extraction.

10. An injury on account of which any members joint is cut or dislocated.

11. Reduction in power of any member or joint of the body.

Different kinds of hurt: There are five types of hurt provided in Ordinance.

1. Itlaf-I-Udw S. 333: Itlaf means to destroy, to ruin, and decay. The word udw means limb or organ. It means
dismember, amputation, or cut off any limb or organ of the body.

2. Itlaf-I-Salahiyyat-I-Udw S. 335: It means destroy or permanently impairing the functioning power of capacity of any
organ of the body of a person or causing permanent of some organ.

These offences are punishable with Qisas and where Qisas is not applicable there Arsh and imprisonment is awarded.
Arsh is compensation payable in case of hurt in contrast of murder, to victim or his legal heirs. Its amount varies case
to case.

3. Shajjah S. 337: It means injuries on head or face. There are six kinds of Shajjah.

a) Shajjah-I-Khafifah: It means simple hurt by any weapon on head or face without exposing any bone of
the victim.

b) Shajjah-I-Mudihah: It is simple hurt by any weapon, on head or face, where though bone is exposed
but no fracture is caused.

c) Shajjah-I-Hashimah: It is grievous hurt by any weapon, on head or face, resulting in fracture of bone
of victim without dislocating it.

d) Shajjah-I-Munaqillah: It is grievous hurt by any weapon, on head or face, resulting in fracture and
dislocation of bone of victim.

e) Shajjah-I-Ammah: It is grievous hurt by any weapon, causing fracture of the skull of the victim, where
the wound touches the member of the brain.

f) Shajjah-I-Damighah: This is also grievous hurt by any weapon, causing fracture of the skull of the
victim, so that the wound ruptures the membrane of the brain.
4. Jurh S. 337 – B: Jurh is derived from the word “Jarooh” which means injury. The word jurh is used for injuries on
human body other than injuries on head or face. These injuries on human body can be divided into two kinds:

a) Jaifah means injury, which extends to the body cavity of the trunk.

b) Ghayr Jaifah S. 337 – E: It means injury, which does not amount to jaifah. Ghayr Jaifah Jurh may further be
divided into six kinds:

i) Damiyah: Damiyah ghayr jaifah jurh means injury with any weapon, in any part of body except head or face
in which skin is reptured and bleeding occurs.

ii) Badiah: It means injury with any weapon, on any part of body, except head or face, by cutting on incising
the flesh without exposing the bone.

iii) Mutalahimah: It means injury with any weapon, on any part of the body except head or face, by lacerating
the flesh.

iv) Mudihah: This type of jurh means injury with any weapon, on any part of the body, except head or face, in
which bone is exposed.

v) Hashimah: It means injury with any weapon, on any part of the body, except head or face resulting in
fracture of a bone without dislocating it.

vi) Munaqqilah: This jurh means injury with an weapon, on any part of body, except head or face, resulting in
fracture and dislocation of bone.

Punishment is Arsh and offender may also be awarded imprisonment as Taazir.

5. Other kinds of offences including hurt:

a) Hurt because of rash and negligent driving.

b) Hurt because of rash and negligent act other than driving.

c) Hurt caused by mistake.

d) Hurt by mean of poison.

e) Any other kind of hurt which endangers life or which causes the sufferer to remain in sever bodily pain for 20
days or more or render him unable to follow his ordinary pursuit for that much time.

Drinking: Whoever, intentionally and without ikrah or iztirar, takes an intoxicant by any means whatsoever, whether
such taking causes intoxication or not, shall be guilty of drinking.

Quran says, “They ask thee, concerning wine and gambling, say, “In Them is great sin, And some profit, for men, But
the sin is greater, Than the profit”, They ask thee how much, They are to spend, Say, “What is beyond your needs.”
Thus doth Allah, Make clear to you, His Signs, in order that, Ye may consider.

Wine or khumar is literally understood to mean fermented juice of grape; applied by analogy to all fermented liquor,
and by further analogy to an intoxicating liquor or drug. There may possibly be some benefit in it, but the harm is
greater than the benefit, especially if we look at it from a social as well as an individual point of view.

Kinds of drinking: Drinking may be either drinking liable to hadd or drinking liable to taazir.
Drinking liable to hadd: Whoever being an adult Muslim takes intoxicating liquor by mouth is guilty of drinking liable
to hadd and shall be punished with whipping numbering eighty stripes.

Punishment cannot be executed until or unless it is confirmed by the Court of law.

Proof of drinking liable to hadd: The proof of drinking liable to hadd shall be in one of the following:

1. The accused makes before a Court of competent jurisdiction a confession of commission of drinking liable
to Hadd; and

2. At least two Muslim adult male witnesses, about whom the Court is satisfied, having regard to the
requirement of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (Kabir),
give evidence of the accused having committed the offence of drinking liable to Hadd.

Tazkiyah al-shuhood means the mode of enquiry adopted by a Court to satisfy itself as to the credibility of a witness.

Hadd is not enforced in the following cases:

1. When drinking is proved only by the confession of the convict but he retracts his confession before the
execution of hadd, and

2. When drinking is proved by testimony, but before the execution of hadd, any witness retracts from his
testimony so as to reduce the number of witnesses to less than two.

3. Drinking liable to Taazir.

Drinking liable to Taazir:

1. Being a Muslim, is guilty of drinking which is not liable to hadd under Article 8 or for which proof in either of the
forms mentioned in Article 9 is not available and the Court is satisfied that the offence stands proved by the
evidence on the record.

2. Being a non-Muslim citizen of Pakistan, is guilty of drinking, except as a part of ceremony prescribed by his religion,
or

3. Being a non-Muslim who is not a citizen of Pakistan, is guilty of drinking at a public place.

Drinking liable to taazir shall be punished with imprisonment for a term which may extend to three years or with
whipping not exceeding thirty stripes, or with both.

Qazf: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or any
person in tending to harm, or knowing or having reason to believe that such imputation will harm, the reputation, or
hurt the feelings, of such person, is said, except in the cases hereinafter excepted, to commit Qazf.

Kinds of Qazf: Qazf may either be qazf liable to hadd or qazf liable to taazir.

Qazf liable to hadd: Whoever, being an adult, intentionally and without ambiguity commits qazf of zina liable to hadd
against a particular person who is a muhsin and capable of performing sexual intercourse is, subject to the provisions
of this Ordinance, said to commit qazf liable to hadd.

Muhsin means a sane and adult Muslim who either has had no sexual intercourse or has had such intercourse only
with his or her lawful wedding spouse.

Proof of qazf liable to hadd: Proof of qazf liable to hadd shall be one of the following forms namely:
1. The accused makes before the Court of competent jurisdiction a confession of the commission of the offence.

2. The accused commits qazf in the presence of Court, and

3. At least two Muslim adult male witnesses, other than the victim of the qazf, about whom the Court is satisfied,
having regard to the requirement of tazkiyah al-shuhood, that they are truthful persons and abstain from major
sins (Kabir), give direct evidence of the commission of qazf.

Punishment of qazf liable to hadd:

1. Whoever commits qazf liable to hadd shall be punished with whipping numbering eighty strips.

2. After a person has been convicted for the offence of qazf liable to hadd, his evidence shall not be admissible in
any Court.

3. Punishment shall be executed upon the confirmation of the Court.

Qazf liable to taazir: Whoever commits qazf which is not liable to hadd, or for which proof in any of the forms
mentioned in S. 6 is not available or for which hadd may not be imposed or enforced u/s 9 is said to commit qazf liable
to taazir.

Punishment for qazf liable to taazir: Whoever commits qazf liable to taazir, shall be punished with imprisonment of
either description for a term which may extend to two years and with whipping not exceeding forty strips and shall
also be liable to fine.

Suicide S. 325: Whoever attempts to commit suicide, shall be punished with simple imprisonment for a term which
may extend to one year, or with fine, or with both. In Islam it is also forbidden. Quran says, “Do not destroy your life.”
Abetment in suicide is also an offence. Genuine suicide is an offence in which a wrongdoer commits offence himself
while in non-genuine suicide is an offence committed with abetment or conspiracy.

Wrongful restraint S. 339: It is a obstruction causing to person to reach at place where he wants to go, and law permits
him. It is keeping a man to out of place he wishes to be and has a right to be.

Formula for Wrongful Confinement: OVER:

1. Obstruction completely on a person to move to a direction.

2. Voluntarily confining a person by wrongful restraint.

3. Each direction is included if a person is obstructed from movement.

4. Right of movement is available to a person who is wrongfully confined in such a way that he was entitled to move
but the all of other person have violated this right.

Formula for Abduction: TOHFA:

1. Taking a person is necessary.

2. Object of such taking is no more necessary.

3. His or her consents may or may no be there.

4. Force or compulsion by deceitful means or adopted by taking the person.

5. Age is not considered.


Theft § 378 – 382: Whoever, intending to take dishonestly any moveable property out of possession of any person
without that person’s consents moves the property in order to such taking is said to commit theft.

Formula for Theft: WORD:

1. Without consent of the owner either expressive or implied.

2. Out of possession (there is no question of ownership). It is sufficient that property which was taken out of
possession of the possessor.

3. Removal of property is must.

4. Dishonest intention – wrongful gain or wrongful loss.

Intention is the sum up of the offence. If there is no dishonesty intention, offence is not
committed. Dishonestly includes anything with the intention of causing wrongful gain to one person or wrongful
loss to another person is dishonestly. Wrongful gain means gain with unlawful means and wrongful loss means loss
by unlawful means.

There are five ingredients that constitute theft within the meaning of S. 378.

1. Dishonesty to take property.

2. Such property should be moveable.

3. Actual removal of the property.

4. Removal of property from possessor.

5. Dispossession without consents.

Distinction of theft under Pakistan Penal Code (PPC) and Hudood Ordinance.

1. Age: Under Pakistan Penal Code (PPC) anybody who commits theft over seven years is liable to punishment while
in Hudood only adult is liable to Hadd.

2. Value of property: Under Pakistan Penal Code (PPC) any value of property is subject of theft while under Hudood
stolen value of 4.457 grams gold is liable to Hadd.

3. Dishonestly: Dishonestly is the integral part of theft under Pakistan Penal Code (PPC) and under Hudood it is no
more important.

4. Hirz and possession: Hirz is used in Hudood and possession is used in Pakistan Penal Code (PPC). Hirz is wider than
of possession. It is arrangement made for the custody of property.

5. Nature of property: Stolen property under Ordinance has been reduced excluding the criminal misappropriated
property and the effect of criminal breach of trust from its orbit.

6. Nature of proof: A very tough mode of proof is provided in Hudood while in Pakistan Penal Code (PPC) direct
evident of anybody is admissible.

7. Necessity: Necessity to commit theft is recognized under Ordinance while in Pakistan Penal Code (PPC) it is
mitigating factor in punishment.
8. Gravity of punishment: Under Pakistan Penal Code (PPC) three years imprisonment with or without fine is
imposed. Under Ordinance punishment from amputation of hand to life imprisonment can be imposed.

Sarka (theft) liable to Hadd: It means secretly taking away of another’s property. Property must be in custody and
value of stolen property must be upto or more than the value of ‘nisab’. Following are the pre-requisites of Sarka.

1. Accused must be adult.

2. It should be committed secretly.

3. Stolen property should not be stolen earlier and value should be of ‘nisab’ or more.

4. Property is taken away from ‘hirz’, i.e., arrangement made for the custody of property.

5. Thief as touch to ‘nisab’ knows value of stolen property.

6. Victim should unaware of theft at the time of commission.

7. Victim should be there to hold accused.

Dacoity S. 391: It is like robbery with a difference of members. Dacoity should contain five or more accused. Just a
single person can commit robbery. Gang of robbers commits dacoity and they must be five or more.

Haraabah S. 15: Hudood Ordinance says, “when any one or more persons, whether equipped or not, make show of
force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in
fear of death or hurt, such person or persons are said to commit haraabah.”

Essential ingredients of haraabah are as follows:

1. Show of force for the purpose of taking away property.

2. Attack or cause to wrongful restraint.

3. Putting in the fear of death or hurt.

Criminal Misappropriation of Property S. 403: Whoever dishonestly misappropriates or converts to his own use any
movable property, commits criminal misappropriation of property within the meaning of this section.

If A, takes property belonging to Z out of Z’s possession in good faith believing at the time when he takes it, that the
property belonging to him self. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates
the property to his own use, A is guilty of an offence under this section.

A, finds a rupee on the high road, not knowing to whom the rupee belong. A picks up it. A has not committed the
offence. However, he has committed misappropriation.

A, sees Z drop his purse with money in it. A, picks up purse with the intention of restoring it to Z, but afterwards
appropriates it to his own use. A is guilty u/s 403.

Dishonestly receiving stolen property S. 411: Whoever dishonestly receives or retains any stolen property, knowing
or having reason to believe the same to be stolen property is guilty u/s. 411.

Essential ingredients of dishonestly receiving stolen property:

1. Dishonest receipt.
2. Dishonest retention.

3. Stolen property.

4. Act knowingly.

5. Having reason to believe it to be stolen.

In Kamal – v – State case, state recovered the property after passing six months of theft. Since it was not recent
possession, therefore accused was acquitted being not guilty.

S. 411 becomes inactive if receiving of stolen property is kept concealed upto two years. It was held in case of Mukhtar
Ali – v – State.

House trespass S. 442: Whoever commits criminal trespass by entering into or remaining in any building, tent, or vessel
used as a human dwelling or any building used as a place for worship or as a place for custody of property, is said to
commit “house trespass”.

If a stranger enters into joint family dwelling house with the permission of a member of the joint family does not
amount to house trespass.

It is not necessary that the full body must enter before the offence is completed. Penetrating a hand or putting leg
will be sufficient to constitute house trespass.

House breaking S. 445: A person is said to commit “house breaking” who commits house trespass if he effects his
entrance into the house or any part of it any of the six ways herein after described with the intention of committing
the offence, that is to say:

1. First: If he enters and quits through a passage made by himself or by any abettor of the house trespass in order to
the committing of the house trespass.

2. Secondly: If he enters or quits through any passage not intended by any person, other than himself or an abettor
of the offence, for human entrance or through any passage to which he has obtained access by sealing or climbing
over any wall or building.

3. Thirdly: If he enters or quits through any passage which he or any abettor of the house trespass has opened, in
order to the committing of the house trespass by any means by which that passage was not intended by the
occupier of the house to be opened.

4. Fourthly: If he enters or quits by opening any lock in order to the committing of the house trespass, or in order to
quitting of the house after a house trespass.

5. Fifthly: If he effects his entrance or departure by using criminal force or committing an assault, or by threatening
any person with assault.

6. Sixthly: If he enters or quits by any passage which he knows to have been fastened against such entrance or
departure, and to have been unfastened by himself or by any abettor of the house trespass.

Following are the illustrations of house breaking:

1. A, commits house trespass by making a hole through the wall of Z’s house, and putting his hand through the
aperture. This is house breaking.

2. A, commits house trespassing by creeping into a ship at a porthole between decks. This is house breaking.
3. A, commits house trespass by entering Z’s house through a window. This is house breaking.

4. A, commits house trespass by entering Z’s house through the door, having opened a door which was fastened.
This is house breaking.
Constitutional Law - I UK
Why we study constitution of United Kingdom? We were colony of UK. It is exemplary constitution of parliamentary
system of government. We had English law system. They gave us a system. British constitution is a mother of all
modern constitutions. Constitution does mean structure, and composition. State is artificial person. State does mean
society, which is politically organized. Political organization of state is government. People create Nations. Sovereign
is the ultimate authority of state. State has four integral parts, i.e., people, territory, government, and sovereign.
Government does mean group of people who run the affairs of society or government. Government is composed of
three institutions, i.e., Executive, legislature, and judiciary. Courts decide according to law. All the parts of government
have some links with each other.

Executive settles the disputes and makes the rules. Distribution of the power is maintained among the federation and
units and separation of the powers between institutions.

England is a single country while Great Britain is combination of England, Wales, and Scotland and United Kingdom is
collections of Great Britain and other Iceland. British Constitution means Constitution of Great Britain.

Salient Features of the British Constitution:

1. Unwritten: Although the British constitution is not compiled in a book like USA and other constitutions, but it is
partially written in the form of Bill of Rights, Act of Settlement, Act of Parliament etc.

2. Evolutionary: It is not rigid but gone through from the changes of all the times. USA Constitution has a date and
place when it was ratified contained particular contents but on the other hand British Constitution has not these
qualities.

3. Supremacy of Parliament: Because there is no written constitution so there is no limit on framing the laws. There
is no limit on parliament to enact laws. No difference between constitutional law and ordinary law. Simple majority
passes both types of laws. There is neither superior law nor inferior or subordinate law. Parliament can repeal
every sort of law or Act. Present parliament is supreme parliament. She is not subject of any Law, Act, principle.
Parliament is not absolutely supreme. She can repeal the Indian Independence Act, 1947, but there are many
moral, international law and other restrictions to do this practice.

4. Rule of Law: It means that society will be run according to the rules and regulations. Every citizen can do
everything, which is not prohibited by the law but parliament has to follow law. Parliament can do everything,
which is allowed by the law. Both statements have same meaning. Law is formed to govern the people and not
the sovereign.

5. Conventious: Unwritten practices, which control the discretionary powers of constitutional office holder. Head of
State will act on the advice of the Prime Minister. But the name of Prime Minister is not mentioned at all anywhere.
Prime Minister is most important figure of the system, but his name is not used at all. King is Head of the State,
Selections of the Head of Government, Selection of Cabinet, based on conventions.

6. Flexible: It is not rigid as the constitution of USA is. It is easily modified. Since there is no constitution or written
constitution, so it can be amended easily. Every law is superior if it deals with constitution, and every law is ordinary
if not deals with constitution. Every old law is superceded with new law. In USA Constitution 27 amendments have
been taken place whereas in British Constitution so many amendments have been taken place.

7. Bicameral: It means it has two houses in parliament, i.e., House of Lords and House of Commons. Members of the
House of Commons are elected through the process of elections democratically, while members of House of Lords
are inherited. There are retired judges, politicians, bishops, technocrats, eminent scientists, players, and writers
etc.

8. Unitary: Single system of government. There is no other independent government. In USA every State has right
of separation but practically when the some states gone away then the rest of states brought them back.
In UK there is no option to declare independence. But there are counties, which have many rights to manage the
society.

9. Constitutional Monarchy: Monarchy is inherited and constitutional. King is Sovereign but all the powers rest to
the Parliament. King has not dominated role.

10. No strict separation of powers: All the organs of the State are not separated except the judiciary.

Sources of British Constitution: Sources means what is material on which British Constitution is based.

There are three sources on which British Constitution is based, i.e., Legal Sources, Conventional Sources, and Advisory
Sources.

1. Legal Sources: There are three legal sources, i.e., Statue Law, Case Law, and Customary Law.

a. Statue Law (Parliament Acts): All the laws, which are passed by the British Parliament, are called statue law,
like Bill of Rights 1668 – no tax can be levied or no army action can be taken without permission of parliament.
No one can suspend any law without any reason, Act of Settlement 1700 – all the organs of the government
will be independent particularly judiciary will be independent, Parliament Act 1949 – how the parliament will
be formed and what are the rights of the Crown, Magna Carta 1215 – it the bases of the rule of law and also
contains the rights of the people in a democratic set up, and Crown Proceeding Act 1947 – a person can sue
the government

b. Case Laws – means judge made laws: It contains to Common Law and Interpretation of Statue Law. Common
Law also has two kinds, i.e., Local Customs and Common Customs. Local customs are those that vary place to
place like law of inheritance, marriage etc., and Common Customs are those, which are similar all over the
country like Finance Act, Tariff Act, Traffic Rules etc. As far as interpretation of statute law is concerned they
give some meaning, or explanations to the statutes.

c. Customary Law: Customs that are not made part of law. It forms basic structure of British constitution. British
constitution does not vest power to the organs of the government but there are certain customs that
determine the powers of the organs of the government. King is ruler, courts decide the cases, working of
parliament, parliament itself is a Court, basic institutions and the parliamentary proceedings, supremacy of the
parliament, both houses of the parliament are master of their business are similar kinds of the customs. These
customs are not written elsewhere but it fact that all the business of the British society is being carried on by
the customs.

Customs are immemorial of nature and have force of law. Customs are enforced as law. These are not found
in books.

2. Conventional Sources: Political practices/usage, which have been adopted to curtail/reduce the discretionary
powers of the king/queen or other high officers. Queen has many powers but practically she does not exercise
such powers, and the elected people exercise them. Selection of Prime Minister is convention. Every job is done
by the queen/king on the advice of Prime Minister. Leader of the majority party in House of Commons is elected,
as Prime Minister is also a convention.
All other ministers are also appointed by king/queen on the advice of Prime Minister.

All ministers are collectively answerable to the parliament. No one can speak against government. If anyone has
any objection can discuss in party meeting; otherwise he has to resign before he speaks against the government
policy.

If vote of no confidence is passed against Prime Minister, he may either resign or may dissolve the House of
Commons for fresh election.

Parliament will meet once in a year.

Prime Minister draws his salary as Secretary and not as Prime Minister because Prime Minister has no legal status
while Secretary has legal status. Parliament itself is conventional.

These all are conventions of British Constitution

Conventions are those which are:

1. No immemorial origin;

2. Product of last 250 or 300 years; and

3. Have not force of law.

3. Advisory Sources: These are those which found in books, journals, and articles.

Rule of Law means principles of general application given by state to control human behavior. It is a body of principles,
recognized and applied by state in the administration of justice. Any principle, which governs human behavior
generally, is law. Every law curtail, restricts our liberty. Why we accept law, we are slaves of law.

In simple term it means that all the people should be governed and controlled according to principle and should no
discrimination among them at all. It has been generally in our civilization that people prefer rule of law and they are
governed by rule and not by the will of a single one. In primitive societies principles were provided by the customs. By
using customs law was made. They had legal status. How one can dispose of his property, how the price is determined,
all were dealt by the customs. Customs were used to provide principles. Customs could not be changed easily and
sometime they could not be used to provide principles and failed. Customs are changed very slowly; even there is not
change in 100 years. All was dealt with old style. If change is required, then customs are failed to accompany the social
needs. Customs had no role after a long period. When customs diminished then religion came and filled in the place
of customs. Apostles came with revelation and they provided moral conduct. This rule of conduct was based for the
controlling of human being. The King/Queen governed once a time people. They were superior of the society. A new
era emerged. Society was peaceful and customary law was available to control people. All was OK. Society was gaining
strength. All were free to choose their profession. They joined different professions. A new set up came with new
values that people would be governed by the will of single one person and by the law and principles. Concept of
natural law emerged. It was higher than the man made laws. There was no defect in religion. People were governed
by the natural law and not by the will of ruler. Now concept arises:

1. No will be tried in two cases at a time.

2. Law of evidence emerged.

3. Safeguards are provided for the retention of property.

4. Impartial judgement came into existence.


5. No torture will be used for getting of confession, etc.

With the passage of time, natural law gave national law. Internal nature was same while external nature was different.
Every state in modern time has right to have her-own law. Natural law made national law. Natural law comes to focus
of national law. Now people respect the parliament because it is composed of the people of their own representative,
they have authority; they act according to the wishes of the people. Parties follow manifestos. This system is better
than of judges who sit in a closed room and decide the fate of people without knowing their wills. New political system
contains upper and lower houses, parties, oppositions, and people wishes. Now another problem came into being.
Representatives come from upper class and they make laws for upper class negating the lower class of labour,
tenants, common people etc.

To over come this situation supreme law is made. It is reflection of the wishes of the people. It makes the people
stronger and guarantees the rule of law.

If there is no rule of law, there is always uncertainty. Law protects the rights of individuals. There is no rule exists in
jungle. Cat may catch mouse and dog may cat. There are so many difficulties and problems in the rule of law to the
law-breakers. Law of marriage has many customs. Simply marriage is agreement between a couple with consideration
in the presence of two witnesses. But there are so many formalities, i.e., engagement, Hina Customs, Marriage
Ceremony, valima, or invitation after the marriage etc.

Religion is also a source of law. It has played very important role in society. There are many types of laws, i.e., natural
laws, and judge made laws, man made laws, common law etc.

It is not a solid concept. Different writers tried to give it different meaning in different time. There was a move to
propagate natural laws. They are above human being and man made rules of rulers. First of all there was religion who
revolted against man made laws and then advocated true rule of Allah, law which is higher than man made law. God
had sent rules through Apostles through the centuries to make human being man as the most eminent of created
beings of mankind. General consensus of the people was religion. Musa revolted against Pharaoh. Such rule of law is
important than of man made. Aristotle also said that the rule of law is better than rule of man. The king is under law
because law creates him. King is not rule but subordinate of higher law. People started struggle against king, then
supported the opponents of king. They expounded the concept of rule of common law. New theory establishes that
parliament is law making authority. Acts of parliament are continuos today and subordinate legislation also. In many
countries British constitution has been adopted. When we take rule of law, take supremacy of constitution. Theories
of all times or era contain one thing common that is rule of man. Most of colonies have being disappearing slowly. No
monarch is followed. They are nothing than ceremonial head now. Now he never rules. In all countries power has been
vested to people. Monarchy is giving away today. People think that what quality lies in a person who is sitting in
capital? Concept of democracy has emerged. Democracy is the historical development of rule of law.

People should be governed, regulated, or ruled by law. Law has some uniform principles. They are predetermined.
Everyone knows what is crime, i.e., theft, robbery, dacoity, rape, drinking etc. And everyone knows what evil is
inflicted in case of commission of such crimes. What is prohibited and what is allowed. These things are not
determined after commission of the offence. If standard is laid down that whoever will get 45% marks will be declared
pass, 60% marks will achieve first division then everyone, will definitely try to follow rules otherwise disparity will occur.
Duty of law is predetermined.

It is also general in application and not meant to individual. It is also outcome of long and long process. It excludes the
unreasonableness and unfairness. People should be governed by the law and not by the individual. Later on Aristotle
advocated the rule of law being better than individual. Coke of England insisted on the dominance of law over the
king. American constitution emphasizes on due process of law, which means not rule of law, but only good laws are
regarded.
However concept of law kept changed time to time with natural law and divine law. Generally people’s thinking are
towards good laws. People’s emphasis shifted from natural law to national law. A national state established. Now law
is created by state itself. In the days of Coke, emphasis was on common law, and judge made laws.

After 1688, supremacy of parliament established. Now in modern times rule of law means rule of constitution.
Constitution is considered superior than all laws. Professor Dicey expounded this theory in Law of the Constitution.

1. Everyone is subject to law. Government is under law. King is subject of law. No one is immune. All have to follow
law.

2. Everyone, in the eyes of law, is equal and discrimination has been disappeared. Poor or rich, white or black are not
subject. He compares it with French system where separate courts are established to deals government and civil
cases separately. While in England only ordinary courts deal all the cases including government cases.
In India lower courts have power to issue injunction against government.

3. In United Kingdom, rights of people are protected well than by constitution and are product of initial decisions of
courts. They are not products of constitution. Today Rule of Law is summarized in three main features.

i) Law and order is better than of anarchy. It must be achieved. Government must have power to maintain law
and order. It brings peace. Why it is necessary and given top priority? It provides atmosphere to do certain
types of things. If teacher is delivering lecture and students are quarrelling or conversing with each other,
what will be the consequences of the lecture? All the progress, which we have made so far, is result of Rule of
Law. Where there, Rule of Law is maintained, there it brought prosperity, economic growth, and development
etc.

ii) A government must be regulated by Rule of Law. She must follow these laws. If there is no Rule of Law is
maintained, courts cannot decide the cases at liberty. This is the basic difference between the democracy and
dictatorship. Government has to take actions as per pre-decided rules. Government becomes ineffective if the
proper remedy is not provided against the wrongs. This object cannot be achieved until or unless force is not
applied. Independent judiciary is necessary.

iii) There are three certain universal standards relating to the relationship of state and people:

i) Every offender is punished once in a crime and no double jeopardy.

ii) No torture is applied for confession and impartial trials are carried on.

iii) Burden of proof lies on state, being victim in criminal cases. Hearsay evidence is not allowed.

We insist on quality of law. Our process of law means rule of good and fair laws. Rule of Law has universal standards.
It has been developing in local context. It was first natural law, and then it was converted into common law, later Acts
of Parliament, and now due process of law.

European courts deal the cases as per European conventions. In Delhi Declaration, in 1959, the study of Rule of Law
was conducted and suggested two principles:

i) There must be politically effected government for socioeconomic development. Effective government and
not the excellent government necessary for socioeconomic development.

ii) There must be adequate control over the government. Article 5 of the Pakistan Constitution provides Rule of
Law.
Conventions of the UK Constitution: UK Constitution is unwritten and this part is called conventions. Constitution is
not totally unwritten but partially. It is written in the books, statues, Acts of parliament, Court decisions etc. But it is
fact that important part of it is unwritten and is based on conventions. It plays very important role in constitution.

Definition: Conventions are the unwritten rules of constitution, practices that regulate discretionary powers of state
authorities at highest level.

King had executive, judiciary, and legislature powers but later they were separated among the other organs. Now
parliament is the organ responsible for law making and most powerful particularly after the revolution of 1688.

Executive is under control of Queen so far. Foreign affairs, nominations and welcome of high commissions, welfare,
nomination of religious leader or head of the church, social set up etc. are the powers of King or Queen.

Parliament has right of law making, tax, and sanctioning of army. King desires to rule of parliament. Queen appoints
ministers, senior member of the house of common as Prime Minister. Power has been transferred from King to
Parliament. Power speaks itself. Now UK has political parties. People know their manifestoes. Parties are effective
rather than individual. People exercise their rights in elections.

Examples of important conventions:

1. Prime Minister: Who will be the Prime Minister? People know very well during the elections that who will be. What
will be the position of the Prime Minister? How other ministers will be elected? The Queen offers leader of the
majority party as Prime Minister. He is nominated from House of Commons. He knows the time of election.

2. Sovereign: King or Queen or Monarch acts on advice of Prime Minister. He or She cannot do anything at own.
Advice of Prime Minister, Cabinet, Minister, or Privy Council is given to crown. All administrative matters are dealt
on the advice of Prime Minister or Cabinet.

3. Government of Prime Minister: All acts are done on the advice of Prime Minister.

4. Ministers are members of the parliament: Queen nominates them on the advice of Prime Minister.

5. Ministers Act Collectively: Decision of cabinet is acceptable to all. If anyone disagree, he must resign and then
criticize. No one can disagree.

6. Cabinet (Prime Minister and Ministers): They are responsible regarding all the acts in parliament. Mistake of one
is mistake of all.

7. Parliament’s removal: Parliament can be dissolved upon vote of no confidence. There are two way outs, either
government resign or dissolution and holding of fresh election.

8. Annual Meeting: Parliament should meet at least once in a year otherwise no finance bill will be passed and no tax
will be levied.

9. Dissolution of Parliament: Parliament may be dissolved on the advice of Prime Minister and fresh election may be
held. Prime Minister remains Prime Minister until successor is elected.

Role or Objectives or Functions or Purposes of Conventions:

1. Check and Balance in the System: Crown and Prime Minister are governed by the conventions. All the powers are
vested to Crown who is obliged to follow the advise of Prime Minister. Prime Minister is the leader of majority
party in House of Commons. He always takes into consideration the wishes of party members. Party members,
too, take into consideration the wishes of public. If opposition party or people want to get rid of government,
Queen may dissolve the government. If Prime Minister resigns, all the cabinet resigns.

2. Evolution of Constitutional growth: Since the British constitution is unwritten, so there is great room to cover its
requisite portion with conventions. People of Britain can change everything without changing its basic structure.
Basic system remains unchanged while its outlook is totally changed. British constitution is just like a building,
dwellers of that had never rebuild it except the modification in the required portion without changing its structure.

3. Bridge between democracy and monarchy: Queen has many rights but practically she is dependent of Prime
Minister’s advice. Prime Minister is the person of majority party who makes and run the government. In this way
conventions are the feelings of old days.

4. Wishes of the People: People always want change. Similarity gives disgust to them. But it is fact that they do not
want to leave their heritage. They want innovation without affecting the foundations. Convention is the only way
to achieve their objectives.

5. Advantages of Monarchy: Queen is impartial ruler and acceptable for all groups of the society. In the absence of
government she runs the government functions. There is no need of elected representative. She gets control of
government when the cabinet is not in operation. She is head of the state. No one group criticizes her. These
principles are the product of conventions.

6. Flexible Constitution: In contrast to USA Constitution that is more rigid, conventions provide flexibility to make
the political and social system flexible for the peoples of Britain.

Supremacy of Parliament: Parliament is a product of long standing of historic struggle. There are certain stages in
constitution, which have reduced the powers of king and increased the powers of parliament. Some of them are as
follows:

1. Proclamation and Ordinances: Proclamation is the Act of Parliament while ordinances are laws made by
executives. All the powers of law making either proclamation or ordinances were vested to king, i.e., an individual.
Later justice Coke gave his ruling in judicial decision that king has no authority to make laws in the form of
proclamation and ordinances. So courts have reduced the powers of king consequently it has increased the
powers of parliament to make it superior.

2. Taxation: It is an important power of any government of the world. Same situation is with UK government. Every
government needs money. This money is obtained by taxation. Taxes may be imposed directly or indirectly. This
money is spent on welfare, government business, to run government affairs, to carry on war, to carry on social
activities etc. There is no source of income for government except taxation. Earlier all powers of taxation were
vested to king. But now by historic development these powers have been delegated to parliament. Parliament
can impose taxes without consents of king. Magna Carta was emerged in response of taxation. King was in need
of money to carry on crusades. To encourage people to pay taxes, he granted them certain rights. People became
most liberal. King is still sole representative in foreign affairs. He can declare war to acquire land. All agreements
are made in the name of king. He send troops, nominates ambassadors, imposes custom duty on imports etc. In
1688, Bill of Rights passed stating that no tax will be levied without consents of parliament.

3. Martial Law/Military: In earlier time, king was the Head of Army. This was the inherited position and member of
royal family were acquired this position step by step. King had power to send troops to snatch territory to rule
over. He lost inheritance in parliament affairs. In 1628, by Petition of Rights, it was prohibited that king may move
troops during the peacetime within country. It was held in 1688, that no army could be maintained without
consents of parliament. There is no permanent army in UK. It was decided year by year. Now it is decided for five
years. Powers of establishment of army have been taken over by parliament. Although king signs every bill, but it
is passed by parliament. It was result of revolution under Bill of Rights.

4. Exemptions and dispensations: Law is given by parliament and king has no authority to make laws. It was
exemption to king to suspend the certain part of parliamentary law to enforce on certain people. This right was
available to him and was frequently used to support his special persons. Now this right has been taken away.

5. Independence of judiciary: If parliament says one thing and judiciary interprets it otherwise, parliament may make
another law. King has sole authority to appoint and remove judges. Act of Settlement had decided that no judge
would be removed without consents of parliament.

6. Executive powers: Ministers are responsible collectively. Cabinet exercises all powers of government, which is
part of parliament.

Examples of the supremacy of British parliament:

1. Life of parliament: It was governed by Triennial Act. It was liable to be dissolved on discretion. Its life was then
three years. A law was passed to extend its life, in 1715, for seven years. Then again its life was reduced upto five
years, according to Parliament Act, 1911. Septennial Act, 1715, made its life seven years. Now parliament at its on
liberty to reduce or extends her life self at any time.

2. Succession of crown: It means who will be next of king or who will take responsibilities of throne after the death
of king. Old male descendant takes over kingship. This rule is named Primogeniture. Male descendants are
preferred over female. Females are not totally deprived. If there is no male alive, then daughter is made Queen.
Act of Settlement, 1700, and Act of Abdication, 1938, have resolved this matter. If king is issue-less, then kingship
moves toward to older brother and inherits in his family and cannot be diverted.

3. Retrospective: Normal practice of law implementation in world is that it takes effect in present or future. But it is
the quality of British parliament that it can enforce law from back dates. Indemnity and Damages Acts were
enforced in back dates. This power is used in ratification, i.e., authorization of unauthorized act.

4. Prerogatives of crown: Many discretionary powers are vested in crown, but many of them have been taken away.
Bill of Right, 1688, has taken away most of powers of crown.

5. Political influence: Political conventions have reduced the power of crown and given to parliament. Most of
conventions have become Acts, rests are still conventions, and some of them are vested to crown and he off and
on exercise them.

Are there any limitations on parliament: There are certain practical limitations which parliament may face. These are
as follows:

1. Public opinion: No one, even dictator, can go against strong public opinion. Parliament is composed of elected
people who are supposed to act upon wishes of people. It respects people, but the Act of Parliament cannot be
challenged.

2. Party manifestos: At the time of election every party contests the election with the aim that they will do certain
things if they come into power. They cannot deviate from their manifestoes. If they go against their commitments,
they have to face their results. Most of members will lose their seats in forthcoming election. The most popular
slogan of democratic government is:

Democracy is form of government of people, government by people, and government for people.
Of cannot be changed with off, by cannot be changed as buy, and for cannot be changed as far.

3. Morality: Once in England law of homosexual act was enforced and marriage of two males became legal. But later
on, on people’s protest, it could be repealed. It was in contrast of morality. All the laws contrary to public opinion,
or all laws, which hurt public policy, cannot obtain long life.

4. Rights of the people: There are certain rights of people, such as, property, personal freedom, education, marriage
etc. These rights make limited the powers of parliament.

5. International relations: Today nations live in society as a country. No one, even richest, can go against
international law.

Parliament has central position and has positive role in Britain. It performs legislative function such as law making. It
provides monarchy, Prime Minister, Cabinet, Ambassadors. It also performs judicial functions. Court of Appeal is in
between High Court and House of Lords. Earlier, king was powerful and all the powers were vested to king. British
parliament is bicameral. It has two chambers containing House of Commons and House of Lords. British government
system is unitary. One government exercises all powers. Local government is run under the law of central government.
There is no federation in United Kingdom. House of Common is elected while House of Lords are non-elective but
nominated body.

House of Lords is upper house and non-elected. Its composition was simple. All inheritor members are either
appointed by king or acquiring membership by inheritance. Now other members are included. Today it is quite diverse.
Hereditary members are 850 or 860. Spiritual Lords have fix nominations of 26. They belong to church. Life Lords are
in between of 230 to 240. They are product of Life Peers Act, 1958. They do not inherit their membership. They are the
persons who do not want to come to parliament or they cannot come through democratic process. They are eminent
and beneficial for government and society. Law Lords are also fix to 11.

Reforms: This is non-democratic house. It is just consultative house. According to Parliament Act, 1911, it cannot reject
any bill passed by House of Commons. It can just delay bill for two years if it is ordinary bill and finance bill can be
delayed for two months. Parliament Act, 1945, has also reduced this duration of delay from two years to one year and
two months to one month. This house has no right of vote. Purpose to delay the bills is to think about it in calm
environment. It is discussed at all in the best interest of public.

Although it has no powers, but it performs some important functions:

1. It is a chamber of parliament passed by House of Commons.

2. Correction: It provides chances to cool down emotions and political sentiments.

3. Simple delay: It cannot revise the bill but simply delays the bill maximum for one year or one month. It is also called
delaying house.

4. Introduction of non-contravention public bills which include common benefit of public. Bill that is contrary to
public interest or opinion will never see the light of the day. It will be killed.

5. Private bills can be originated in House of Lords by private members.

6. House of Lords is forum where free and full discussions take place on political, social, economic, and international
issues.

Lower House is highly political and short debating house.


Crown and its prerogatives: There are two classes of crown prerogatives, i.e., personal and political prerogatives.

Personal prerogatives:

1. King can do no wrong:

2. King never dies:

3. King never infant: However he is one day old or born soon after the death of king, he has right to be king. If he is
minor, how he runs the matters of government? There is law under which a tutor is appointed who acts on the
behalf of that young boy. Despite a tutor or committee he runs the matters of government, even actually he is not
the king.

4. Acts of parliament are not applicable to him unless specifically mentioned in law.

Political prerogatives of British Crown:

1. Dissolution of parliament:

2. Appointment of Prime Minister and Ministers:

3. Appointment of Civil and Military Officials:

4. Appointment of ambassadors:

5. Signing treaties:

6. Declaration of war and peace:

7. Acquisition of property:

8. Maintaining of law and order:

9. Signing bills:

10. Hereditary and life lords:

11. Summoning the parliament:

12. Appointment of judges:

13. Appeals from overseas:

14. Head of the army:

15. Head of the clergy (church):

King does not exercise these powers himself individually. He requires the advice of Prime Minister.

Parliamentary System of Government:

1. Evolutionary: British parliamentary system came into being through the process of conventions. After signing the
Bill of Rights Act, powers were transferred from King to Parliament.
2. Based on conventions: British parliamentary system is based upon conventions. Powers are transferred from
Monarchy to Parliamentary system. Nomination of the Prime Minister from the majority party is the convention.
Address of the King or Queen is written by the Prime Minister is also a convention.

3. Democratic: Government is answerable to parliament and people.

4. Party based: British parliamentary system is based on party system. Every party takes part in the election. They
put their Manifestos before the people at the time of election. They are independent in the nominations of their
candidates.

5. Responsible government: Government is responsible for the act of its members of parliament. Act of one minister
is act of the government.

6. Joint responsibility: British parliamentary system is based on joint responsibility. Mistake of one minister is the
mistake of all cabinet. Prime Minister has to suffer if there is any slot.

7. Dominance of House of Common: At the time of beginning of the parliamentary system both houses had equally
responsibility and were equal in their business. But later on House of Common delegated more powers and the
powers of the upper house reduced time to time. Now upper house has very nominal role in system. Upper house
cannot refuse or reject the bill passed by the Lower House. They can only delay bill for one month if it is monetary
bill and one year if bill is related to non-monetary matters.

8. No separation of power: There is no separation of power like in USA. Executive and Legislation joint in their
operations. Just judiciary is independent in practice, but in theory it is not independent.

9. Flexibility/unwritten: Since the British system is evolved through conventions so it is flexible and unwritten. There
is very easy system to modify the law.

10. Pre-eminence of Prime Minister: Prime Minister is leader of the majority party. He has the mandate of people and
has considerable influence on party. He is spokesman of party and conveys the messages to king and in public,
press, social level, and any other form. He appoints all ministers. He has leading role. He advises to king. Nothing
can be done in which he has no consents. Prime Minister is the person who chairs meetings of cabinet. He decides
time of meetings, agenda, and discussion. He closes the meetings. King or Queen act on the advice of Prime
Minister. Prime Minister conveys all the discussions to king. He can individually convey his opinion to king. He did
not bring many matters in the cabinet. What is to be discussed and when, it is upto his sole discretion. He has many
discretionary powers. Every Tuesday Prime Minister and King or Queen meets privately.

Parliamentary Procedure:

General principles of procedure: Both houses are masters of their own business.

Courts do not interfere in the working of parliament. Money bill is originated only in House of Common.

General Rules:

Types of Bills: Bill is the proposal to legislate the law.

1. Public Bills: Related to general system of society, like law of amendment, criminal system, change in law,
education, change in taxation etc.

2. Private Bills: Deal with particular issue or individual like Indemnity, Railway, Airline, Corporation etc.
3. Hybrid Bills: Mix types bills.

4. Private Members’ Bills: Initiated by the members other than government members.

Pre-Bill Procedure:

1. Proposed by government member.

2. Goes to cabinet.

3. Parliament, introduction, law department, legal drafting, experts.

4. Lower or Upper Houses.

5. Money bill only in House of Common. All the rest bills may originate in either house.

6. First Reading: Read out, name, object, and content, change in overall system.

7. Second Reading: Discussion clause by clause. Word by word, through read out. Committee Stage: Select
Committee. Something amended and discussed, acceptable or not.

8. Third Reading: Final shape of bill, election. Passed or rejected.

9. If upper house disagrees, one-month delay in case of money bill, and one year delay in case of ordinary bill.

10. Assent of King or Queen: Finally King or Queen sign the bill. Bill remains bill and cannot converted into Act
or Statute until or unless King or Queen signs it. Since four hundred years King or Queen have never
refused to sign any bill. So it is convention that he or she will sign the bill passed by the government of
people.
Constitutional Law - I USA
Law is rules and regulations made by legislature to do something.

What is constitution: Those principles that form or set the political set up that is called constitution. It deals with
structure of government, its selection, and right of the people, settlement of disputes.

Some kinds of laws: Specific, local, public, private, personal, labour, and civil laws.

Constitution of USA is learned to understand the needs and requirements of presidential system of government while
the constitution of UK is learned to understand the needs and requirements of parliament system.

Law forms constitution and constitution forms law. Supreme power is law-giving authority. Every order is law given
by the supreme authority. Order of the sovereign with sanctions is law. Law is a command or order of sovereign with
sanctions. Punishment is given upon disobedience. Basic purpose of the law is to organize the society and to maintain
the order in the society.

Law has two types, i.e., Constitutional law and ordinary or statutory law.

Constitutional law is that which deals with legislature, executive, judiciary, federation, and fundamental rights (in
nutshell deals with government structure), passed by two third 2/3 majority, and complied in a book, and also called
supreme law.

All other laws are passed with simple majority. If eighty members out of 100 members parliament are present and
quorum is achieved, even then 2/3 majority is required to pass or amend the constitution, i.e., 66 members, but simple
majority is required if an ordinary law is to be made, i.e., 41 members majority.

Silence of the people is also the acceptability of the government. How the institutions are formed. They are formed
under the law, which state the rules and regulations of the institutions. Only executives are government. Law, which
is not acceptable by the legislature, is not law. Provinces are completely independent in the confederation system of
state.

Division of power is found in Centre or Unitary, while separation is power found in Institutions. Litigation is proceeded
in civil cases while trials are proceeded in criminal cases. The three organs of the government run entire functions of
the State. Dark ages are between sixth to fifteenth century. Declaration of Independence was announced in 1776.
Thirteen States had ratified it.

Salient Features of American Constitution:

1. Single Document. Not scattered.

2. Brief. 7 Articles, 10 or 12 pages, 4,000 words, ½ hours to read.

3. Written Constitution.

4. Limited Government. Concept of division of power to each of organ of government. All organs check to each
other.

5. Popular Sovereignty: President, members of House of Representatives and Senate, Judges of Lower Courts,
Attorney General, Public Prosecutor, Chief of Police etc. are elected. No collective responsibility of the members
of executives.
Adversarial Form of Judiciary: In this form of judiciary degree for judge is not required and people elect them. Personal
knowledge of judge has nothing value. Absolute justice is not necessary.

Inquisitorial Form of Judiciary: In this system law degree for judges is necessary. Suo Moto.

Separation of Power: Theory that every state has three government functions, i.e., to make law, to enforce law, and
to explain law. This theory was presented by Montesque of France in United Kingdom, and adopted in USA. Every
modern government has three organs, i.e., legislature, which is responsible to make laws, executive, responsible for
the enforcement of law, and judiciary with the responsibility of explanation or interpretation of law. These all organs
of the government should not be gathered in a single hand. Only one should not exercise all the authorities. All organs
should be separated and not concentrated in one. American had an experience of tyranny and knows that power
makes corrupt and absolute power makes corrupt absolutely. This theory is adopted and incorporated
in USAconstitution. System of USA is being run successfully. Responsibility of law making gone to congress while
president being the executive and not cabinet exercises the implementation of law authority, and Supreme Court or
any other Court constituted by congress explains the laws. In USA constitution, authority is not delegated to single
organ so there is no interference in one another. All the organs have their own duties and they do not go toward
opposite directions. All others control all organs. Objective of all organs is to achieve peace. There are two system of
check and balance, i.e., Institutional Method and Public Sovereignty.

If one organ exceeds from his authority, public will decide at the time of election so that separation of power may
establish. President is elected directly by people. He is not answerable to congress. He cannot act if congress do not
allow him by law. Every act done by public authority must have authorization by law. People are allowed to do
everything except which is prohibited while government can do only which is allowed by law. Executive performs
execution of law. President cannot do anything until congress allows him. He has power of veto to affect congress
but congress has power to re-decide regarding the law, which has been veto by president. President cannot veto if
two third majority passes the law second time. Parliament cannot make law, which is against constitution, if so,
Supreme Court can repeal them by judicial review. If judge commits corruption, senate may trial him. If Court explains
the law differently, congress can make another law with new explanation. If a organs is corrupt, they have to go to
public after each two years, so there is powerful president, powerful congress, and powerful judiciary. Everyone and
everything is within control and checked by others. Everyone can be impeached. One man cannot hold two positions
at a time.

USA constitution is rigid and inflexible. It is changeable but this task is not so easy as in UK. There are two types of
laws. Laws, which are passed by 2/3rd majority, are supreme laws and passed by simple majority, are ordinary laws.
Bill that is passed once in congress is sent to president for verification. He may veto if it is ordinary law and not
executable in his opinion. Bill is returned back to congress and if passed again by 2/3rd majority, then president has no
choice to refuse to sign it. But it will remain ordinary law despite it is passed by 2/3 rd majority. Constitutional
amendments are not liable to veto by president. He must sign them. Almost 30 amendments have taken place since
1789, i.e., 210 years.

To make amendment in constitutional law, also requires ratification from majority of states. States assembly is liable
to ratify the bill/amendment rather than governor.

If a state is to be parted or the change of name is required, then 2/3rd majority of the concerned is required. There is
strong provincial autonomy in USA. Only heavy mandate may repeal/change to heavy mandate.

The Supreme Court (but not the constitutional amendments/laws) can review all the ordinary laws. Supreme Court
interprets the constitutional law. Any law contrary to constitution may be void. Law is not that law that is published
or printed in paper, but which is recognized by the courts.
Federation is responsible to regulate commerce, but it has been interpreted differently in different time. Law is remain
unchanged while its application has being changed.

Judicial Review: When the US Constitution was made, two laws were recognized, i.e., Federal Law and State Law.
2/3rd majority made as Supreme Law of the State Constitution. There are two kinds of amendments, i.e., ordinary and
constitutional amendments. While third amendment it is recognized in state law.

In 1789 a law was passed under the name of the Judiciary Act, 1789. It was said in US Constitution that all the judiciary
powers are vested to Supreme Court or the other courts that will be made. There are three levels of Court, e.g., District
Courts, Circuit Courts, and Supreme Court.

Judicial Review is really a product of the reasoning of the Chief Justice John Marshall. He first announced it in clear
terms in the celebrated case.[1] President Adams appointed Marbury as a justice of peace in the District of Columbia on
the last day of his office, but the commission could not be delivered to him. The next President Jefferson and his
Secretary of State, Madison, refused to deliver the commission to Marbury. He consequently, petitioned to the
Supreme Court for a writ of mandamus, under the Judiciary Act, 1789. The Court presided by John Marshall, held the
Marbury was entitled to commission. But it has no authority to grant a writ of mandamus, compelling delivery, because
the provision of the Judiciary Act, 1789, which empowered the Supreme Court to issue writ of mandamus, was in
violation of the constitution provisions of Article III. So the Act of Congress held violation of constitution. All the laws
contrary to constitution will be abrogated. In USA, through the week proceedings are held, and on Monday decisions
are made. Constitution has dominating role. State law will be repealed if it is contrary to federal law. Judiciary is
supreme over the both organs. When Supreme Court legislates the laws or amends the law then it is called judicial
review.

In USA public is liberated while government is limitized. US Supreme Court can review of laws and Acts in the light of
constitution. US constitution in its Article II says that all the legislature powers are vested to congress, executive to
president, and judiciary to Supreme Court.

Founding fathers made the constitution and divided the powers. No one can be arbitrary among the organs of
government. US constitution is based on distrust. US president is most powerful of the world and sometime he is
helpless before congress.

Qualifications of the President:

1. He must be born in USA.

2. 14 years resident of USA.

3. 35 years of age.

Conventions:

1. All president were Catholic.

2. No woman has been president.

3. No black or Negro has been president.

4. Only two elections. Now it is law.

No membership of congress is necessary to become president of USA. Elections are held for four years only. No
election is held upon death of president. Nominations are made in August, elections are held to select the
representatives in November, elections for President are held in December, while oath is taken on January 20.
Elections of the US President: Elections of the US President is the most expensive thing. Almost 10 billion expenses
are spent on election. While the every leap year, in July and August, parties hold their conventions and elect their party
members. In November, representatives are elected who cast their votes for the election of US President. In
December votes are casted to elect President. US President takes oath on 20 th of the next month, i.e., January 20 of
the next year. This practice is repeated after every four years. Members of Parliament, e.g., members of lower house,
house of representative, and member of upper house, senators, are not eligible to take part in election as president
and vice president. Members of Electoral College are dissolved after they cast their vote. How many representatives
are elected for Electoral College? Numbers of members of house of representative plus senators from that particular
state are elected from each state. Suppose, State of Virginia has its 30 members in house of representative, and two
as senator in senate, it means, representative from Virginia will be 32. Parties on their tickets nominate candidates for
president. System of Electoral College was adopted due to corruption factor in older practices where members were
free for floor crossing, so that direct election system was evolved and adopted without making an amendment in
the US constitution, which is very difficult. Also Americans do not want to make any change in constitution to continue
the method of Founder Fathers. System of Electoral College is convention and not law. Death of president does not
affect the whole system and vice president fills in space.

Powers and Functions of the US President: He has to perform six (6) functions as follows as per constitution:

1. Executive powers.

2. Legislature powers.

3. Judicial powers.

4. As head of US Forces.

5. Foreign affairs powers.

6. Appointment powers.

First of all we will discuss his executive powers.

1. Executive Powers: Political system of US is based on the theory of separation of power in all the three organs of
the government, i.e., law making is vested to congress, while interpretation goes to judiciary, and enforcement of
the law is the duty of executive. There are three aspects of the US executives, e.g., President and Vice President,
Cabinet, and bureaucracy. President performs the functions of law enforcement and not the law making,
responsible for the institute of bureaucracy, and head of the state. These are his dominant and decisive powers.

He is responsible to run all the governmental matters, which belong to federal government. These powers are
called administrative powers. He is also responsible to enforce laws made by legislature. President is not a single
man, his all cabinet and office of president form an institution, which is named president. He sends advises to
congress and affects it. Judiciary also seeks toward president for judicial matters. Congress cannot make all laws,
some of her powers are delegated to president, that are called delegated legislation. President enforces all laws
made by congress and judicial decisions as well. Executive functions are of two types, i.e., professional and
political. Both are dependent on president. Person who is called minister in parliamentary system is named as
secretary in USA. They are non-members of congress. Also they have no qualification. This is common saying that
ordinary man in street can be designated as secretary. He works upto the pleasure of president. He can be
removed at any time. Chief of law ministry is named attorney general. President is head of all secretaries.
Appointments made by president needs advice of senators, being senatorial curtsey. Senate does not disapprove
advises of president generally, but can reject. If president do not regard the advice of senators, they get together
and create problems. All the powers, which are given to federal government, are the powers of the president.
President makes all types of appointments and nominations, ratified by congress.
2. Legislative powers: President affects the process of law making by sending advises to congress. At the beginning
of every year, he delivers the union of state address to senate, but 90% citizens listen the address. This address
includes the principles and priorities to adopt in sessions of congress for law making.

He may initiate the law making process through the members of congress from his party. This is highly influencing
method. He also can veto laws for reconsideration. But congress again processes the law and passes it with
2/3rd majority and this needs no assents of president. He can suspend the enforcement of law due to non-
availability of funds. Maximum party members in senate that satisfy him in his working smoothly being no
opposition is faced.

3. Judicial powers: He nominates the judges of superior courts. Age of retirement is not fixed. They can be voluntarily
retired with the pension benefit. Senate ratifies the appointments. Normally all appointment are ratified if are
made with the advice of concerned senators. Executives enforce decisions of judiciary. Judiciary supports to
executive. There are 98 district courts, while 36 circuit or courts of appeal, and one Supreme Court in USA.
Promotion of judges is the power of president.

4. Foreign policy: President can make treaties outside the country, but they require ratification of senate. USA could
not get membership of League of Nations.

5. Appointments of ambassadors are made by president but require also ratification of senate. If president sends
any special mission, does not required ratification of senate.

6. Declaration of war is subject to ratification of senate. There are no emergency powers in USA. Only discretionary
powers of president are revoked.

USA Cabinet: It seems in USA being one of the organs of the state besides its actual status. Its nature, responsibility,
terms, and composition is entirely different than of UK Cabinet. There is no word used of cabinet in USA Constitution.
It does not exist in USA. Only president is totally responsible to run the matters of government. No one is responsible
other than president.

There are some differences in USA and UK Cabinet as follows: Both are the integral part of their political system.

United States of America – Cabinet United Kingdom – Cabinet

1. Membership of parliament or congress is 1. Membership of parliament is most


no necessary even prohibited. important even compulsory.

2. Senate ratifies nominations of ministers or 2. Ministers are selected and not elected by
secretaries made by president by Prime Minister.
rd
2/3 majority of the present members.

3. No Nominations without advice and 3. Parliamentary approval is not required.


consent of senate.

4. American president is talent hunting and 4. Talent is not important. Anybody cannot
can take anybody in cabinet any ordinary be taken into cabinet.
person from street.
5. Cabinet is not answerable to congress. 5. Cabinet is responsible to answer each and
every question to parliament.

6. Not answerable to people. 6. Answerable to people also at the time of


next election.

7. No collective responsibility. 7. Strict collective responsibility. Mistake of


one minister’s is mistake of all ministers.

8. May differ from the opinion of president. 8. There cannot be dissenting opinion of the
ministers.

9. Cabinet meetings are not necessary. 9. Cabinet meetings are so necessary.

10. No advises and no consultation with 10. Consultation is very important.


ministers.

Vice President has no role in the US government. He is just showpiece. Neither he has office, nor he performs any
responsibilities. He has only one function that function is no function. There is lack of function. He waits for the death
or resignation or impeachment of the president so that he may be offered the office of the president. There is no
concept of interim election for president if he dies, impeaches, or resigns.

He has two minor responsibilities, i.e., to preside the senate meetings and to complete the term. He cannot take part
in the discussion of senate. Neither he has right of vote in election in senate, nor members of the senate like him.
Senate is self-governed institution. If senate needs, may elect one of them as chairman of senate. If president offers
then he may come in meetings. He is not provided residence. He only draws salary. He is just ceremonial head as the
King or Queen in British political system is. He is elected for four years. He should be natural born of USA, must have
35 years of age. He must be thirteen years’ resident of the USA. He can be removed with impeachment.

Legislature or Congress: USA congress has two houses as others. Lower House is composed of public representatives
and called House of Representatives. Members of Lower House are elected on the base of population. Population of
30,000 elects one member. Election of Lower House is held after each two years. Members of Lower House come
together and go together.

Upper House is called senate. Its members are elected on the base of equality. Every state either small or large sends
two members in senate, being equal share. Term of senate is six years. 1/3rd. Members get retirement after two years.
Only members of first senate did not complete the six years’ full term. 2/3rd. Completed only two years and four years
term. Since then all members complete six years term.

Powers of Lower House: House of Representative makes laws, constitution, and elects speaker and deputy
speaker. US speaker is different than of British speaker. Majority party elects US speaker. He performs three
functions, i.e., political, parliamentary, and judicial. He is the head of party and favors his party fully. This is his political
function. His parliamentary function is to allocate time for debates to the members of house. His judicial function is
to maintain discipline, interpretations of laws, how the house to run, business of the house etc. He protects the party
in debates and ruling. He acts as party agent and represents as head. He has not independence as head. He determines
time distributions among the members, law, bills, references, commissions, committees, appointments, and
committees’ chairmen. He maintains order and decorum of the house with the help of Sargent of arm.
Comparison of Speaker of House of Representatives of USA with Speaker of House of Commons of United Kingdom:

United States of America – Speaker United Kingdom – Speaker

1. There is competition and majority party’s 1. Both parties choose him.


head is chosen.

2. Party representation and protection of 2. No party representation. Equal protection


party. of all members.

3. Remains party member. 3. No remains member of party.

4. Faces competition on second election. 4. Faces no competition on second election.

5. Discussion with consents. 5. Discussion of member without consents.

6. Remains partial. 6. Remains impartial.

7. No more respect as UK speaker. 7. More respect and powers he enjoys in


contrast of USA speaker.

Senate: Membership of senate is independent of population. It is based on equal share of representation. This is
representation of states and not of the people. Each state sends two of its members irrespective of its size and
population. Total numbers of senators are hundred from fifty states. Duty of senators is to protect the interests of the
concerned states. Term of senate is six years. 1/3rd. Members get retirement after two years. Only members of first
senate did not complete the six years’ full term. 2/3rd. Completed only two years and four years term. Since then all
members complete six years term. Senator is elected for six years. He should be natural born of USA, must have 35
years of age. He must be thirteen years’ resident of the USA. He can be removed with impeachment.

In earlier time election of senate was conducted indirectly as United Kingdom and Pakistan. States assemblies were
Electoral College for the election of senator. Later in 1913, direct election method was adopted.

Senate shares six big powers of the president as follows:

1. Ratification of treaties made by the president.

2. Ratification of the cabinet selected by the president.

3. Ratification of the ambassadors, councilors, attachés, etc. appointed by the president.

4. Ratification of the ministers and judges of the High Court.

5. Ratification of the bureaucrats.

6. Ratification of the declaration of war.

Judiciary in USA: There are three types of courts in USA, i.e., district courts which are 298 in numbers, appeal or circuit
courts are 36, and one is supreme Court including nine judges. President nominates all the judges of Supreme Court
and senate ratifies them. Supreme Court has three functions to perform i.e., judicial review, appeals, and advisory.
Judges are appointed directly. There is no age limit of the judges of Supreme Court but they can voluntarily retire with
the benefit of pension. Senate has the right to impeach judges, but judges cannot impeach to anybody. The senate
impeaches president only. Interpretation of Supreme Court can be changed by congress by making another law.
Supreme Court makes laws, in contrast to constitution, ineffective.

Judicial review has also two kinds, judicial review of ordinary law and actions of the government whether they are
legal or otherwise.

Judicial review of law has also two kinds as follows:

1. Judicial review of state ordinary law whether in accordance with constitution.

2. Congress law reviews whether in accordance with constitution as constitution is superior.

State courts are of four types: County courts, High Court, Supreme Court, and crown courts.

Separation of power: Judiciary, legislature, and executive are separate organs of the government. There are three
organs having three functions and work independently. Montesque in France presented this theory first, but it was
adopted first in USA. Constitution is creator or source of institutions. They all facilitate each other rather than creation
of hurdles. Constitution limits their powers so that they may work in their own sphere. If one institution is allowed to
cross its limits then arbitrary powers will be lost and dictatorship will arise. So in order to prevent dictatorship they
coordinate with each other. If one institute violates, other one comes into operation to impeach it.

System of check and balances:

Check and balance – Executive – v – Senate:

1. President may sign foreign treaties but these treaties remain inactive until they achieve ratification of senate.

2. Appointment of cabinet is responsibility of president but senate ratifies it. USA could not attain membership
of League of Nations due to refusal of senate.

3. President with the ratification of senate nominates ambassadors.

4. Appointment of judges also requires ratification of senate.

5. Bureaucracy appointed by president needs to be ratified by senate.

6. President may declare war but it requires approval of senate in term of ratification.

Check and balance – President – v – Senate:

1. Senate is law-making house and president may veto the laws made by senate. However if both houses again pass
this law with 2/3rd majority then president’s right of veto is diminished.

2. Once a year, president delivers the States of Union address, which is heard by 90% of USA population. He also
conducts weekly press conferences and address, in which he conveys his policies and preference. This is an
important check over senate.

3. President can issue ordinances if senate compels him, for three months.
4. This is the function of president as to when meeting of senate is to be called, on what day, time meeting will be
held.

Check and balance – Supreme Court – v – Senate:

1. Nomination of judges is duty of president, but senate ratifies it.

2. There is no age of retirement. They can voluntarily retire or senate can impeach them.

3. Senate ratifies nominations but senate cannot remove any judge except by impeachment.

4. Supreme Court controls both president and legislature. Supreme Court may declare any law contrary to
constitution null & void.

5. If state law is in contrast to federal constitution may be repealed.

6. Judicial review is exclusively right of Supreme Court. Interpretation can affect president or senate’s law.

7. President can fix the number of judges. Once a time it was threaten by president to increase the numbers of judges
from 9 to 15, but it was not happened.

Division of power between Centre and states is made by list of powers. There is only one list made in USA and all the
residuary powers go to states. Federal list is called express powers and the rest of all is called residuary powers.

In India there are three lists. One for Centre, one for provinces, and one is concurrent. Residuary powers go to Centre,
which make it powerful. In Pakistan there are two lists, i.e., federal and provincial, and residuary powers go to
provinces. Executive powers are laid down in constitution and list is not maintained. Any law, which is made by Centre,
its executive powers go to Centre and any law, which is made by states, its executive powers go to states. Federal
disputes are settled in federal Supreme Court and states affairs are dealt with Supreme Court of states. There is double
system in USA. Citizens have to follow both governments. States assemblies are bicameral whereas provincial
assemblies in Pakistan are unilateral. In USA both governments collect their revenues. Both enforce their own laws.
One officer performs only one duty and there is no concept of dual duties. Supremacy of constitution was derived
from the case of Marbury – v – Madison case, presided by Chief Justice Marshall.

Due process of law means that every law will be made properly, containing no discrimination, no bias-ness, no injustice
etc. Many laws were got repealed after passing 14th amendment in which words of due process of law were used. It
also means everything must be done with due process of law. It should also be according to constitution, fair, and
reasonable.

Process of impeachment:

Allegations are imposed in House of Representatives.

Committee considers the allegations.

Discussion takes place.

Voting in House of Representatives by 2/3rd majority passed.

Discussion in voting in senate by 2/3rd majority.

Removal of President and taking over by Vice President.


Kinds of fundamental rights in USA Constitution: In ten amendments following rights are guaranteed.

1. Political Rights.

(a) Freedom of speech.

(b) Freedom of movement.

(c) Freedom of assembly.

2. Religious Rights.

(a) Profess of religion.

(b) Change of religion.

(c) Religious education.

(d) Propagation of the religion.

(e) Establishment of religious institutions.

(f) Collection of educational funds.

(g) Construction of religious places.

(h) Use of religious languages.

3. Economic Rights.

(a) Right to own property.

(b) Right to dispose of property.

(c) Property cannot be taken without adequate remedy.

4. Personal Rights.

(a) Equal protection of law.

(b) No double jeopardy.

(c) Protection against arrest without lawful authority.

(d) No torture for confession.

(e) To get education in all public institutions.

(f) Right against slavery.

(g) No child labour.

(h) No illegal detention.


(i) Life and dignity.

(j) Marriages at own wishes.


English Jurisprudence – Questions:

1. Circumstances which reduce the binding force of precedent.

2. What is legislation – importance – what is supreme legislation?

3. What are requisites of a local custom – as a source of law?

4. Mens Rea embraces various specious – carryout a detailed juristic analysis thereof.

5. Obligation is synonymous with duty – do you support this view – all details.

6. How does jurisprudence with problems of acts and liabilities of corporations.

7. Define jurisprudence, its kinds, nature, value, and purpose of analytical jurisprudence.

8. Legal status of dead person and unborn child.

9. Different theories of punishments.

10. Main points of concept of possession and also let explain incorporeal possession.

11. Explain and illustrate objectives of civil rights.

12. Law as justice, stability, and peaceful change.

13. Administration of justice – purposes and difference between civil and criminal.

14. What is substantive law and law of procedure.

15. Authority of precedent and authoritative precedent.

16. Meaning of legislation – chief forms of subordinate legislation.

17. Factors which render an agreement as invalid – various kinds of agreements.

18. Disregard of precedent – importance.

19. What are local custom – essential features of a valid custom?

20. What is accident? How it is defence against civil liability?

21. Is international law is a proper law?

22. Law is a command of Sovereignty – best definition of law.

23. Why the term, law has no neat and simple definition?

24. Why accident is exempt and form criminal liability?

25. What is equity – differ from common law?

26. Meaning of property – modes of acquisition of property.

27. How courts are lawmaker?


28. Legal sources of law – authoritative and un-authoritative.

29. Question of fact and law. What is difference – what is mixed question of law and fact.

30. Primary and secondary functions of courts of law.

31. What are the principles of interpretation of enacted law?

32. Meaning of evidence, rules, and kinds

33. Immediate and mediate possessions.

34. Commercial Goodwill.

35. What is negligence – contributory negligence?

36. What is strict liability?

37. What is general and special law?

38. What is obligation and soldiery legislation?

39. Imperative theory of law.

40. Legislation is superior to precedent. Why?

41. Who is legal person – double personality – technical law – vicarious liability?

42. Is law territorial?

43. Functions assumed by civil courts.

44. Obligation arising from contracts and torts – quasi contracts.

45. Short notes on 1. Co-ownership 2. Corporation 3. Legal rights 4. Mistake of law 5. Mistake of fact 6. Possession
in law 6. Obter dicta 7. Equitable rights 8. Legal Agreements 9. Void agreement 10. Void-able agreements 11. Various
kinds of ownership.

Law of Torts – Questions:

1. How does tort differ from contract and crime?

2. Who can’t sue and be sued?

3. Difference between injury and damage.

4. Difference between public and private nuisance and what are remedies.

5. What is essential to be established in an action for damages for deceit?

6. What is case between Ashby-v-White?

7. General defences which are available in an action for tort.

8. What is vicarious liability?


9. Differences “Assault”, “Battery”, and “Mayhem”.

10. Fair comment and trust as defence to an action of defamation.

11. What is negligence?

12. What is case between Shart-v-Powel?

13. Discuss Accord and Satisfaction.

14. What is trespass to land and remedies?

15. What should be proved to recover damages from malicious prosecution?

16. Motive and torts.

17. What is legal injury, definition of trot?

18. Contributory negligence.

19. Who can sue and be sued?

20. False imprisonment and defence.

21. Three kinds of damages, definition, and explanation.

22. Different kinds of easement.

23. What is licence and ingredients?

24. Torts and defence.

25. Who may impose easement?

26. How is an easement extinguished?

27. Liability of master for wrong act of his employee.

28. What rights can be acquired by prescriptions?

29. How is a tort discharged?

30. Malicious prosecution.

31. When contributory negligence is defence?

32. Justification and discharge of torts.

33. Slander of title.

34. Personal rights of action lie with the death of a person.

35. Different remedies in tort.

36. What is strict liability?


37. Notes: Slander, Libel, Mayhem, Illegal confinement, Inuria sine demnum, demnum sine injuria, act of traspass and
defences thereto, maintenance and chemprety, ubi jus ibie remedum,

38. Cases: Mayor-v-Pickles. Pylands-v-Flecther.

Islamic Law – Questions:

1. Describe the important tests applied by the traditionalists to check the authenticacy of a Hadith.

2. Concept of Islamic State. Can it set up in modern times?

3. Difference between Darul Islam and Darul Harb.

4. Conditions of valid Ijtihad and meaning of Qiyas.

5. Qualification of Mujtahid.

6. Impediments to inheritance and who is heir.

7. Responsibility of debts of deceased.

8. Revocable and Irrevocable divorce.

9. What is Khula, when and how decree is obtained.

10. Rights of Hizalat, Iddat, definition of Divorce.

11. Wakf Alah Aulad, Public and Private rights.

12. Quran and Sunnah as a source of law.

13. Difference in Batil and Fasid act.

14. What is Hadd and Taazir.

15. Special features of Islamic Legal System.

16. Distribution of estate of Muslim deceased as Sunni and Shia among different heirs.

17. When gift is complete.

18. Traditional source of revenue.

19. What are Wajib, Mustahab, Mubah, Makruh, and Haram?

20. What is Family Muslim Laws Ordinance, 1961?

21. Transfer of ownership of property by gift and quest.

22. History of Islamic Law.

23. Guardianship of minor.

24. Sovereignty in Islam.


25. Revealed laws have got superiority over other laws.

26. What is legal capacity.

27. Division of property.

28. Islamic laws of pre-emption.

29. History of pre-Islamic customs.

30. Can a modern legislature be used for consensus of opinion.

31. Constituted and administrative structure.

32. What is Analogy (Qiyas).

33. Contract and its ingredients.

34. Meaning of evidence.

35. Qualification of Qazi, what is Jehad.

36. What is theory of Naskh.

37. Aims of International Law.

38. Meaning of Islamic Jurisprudence.

39. Different laws and classifications.

40. Concept of State and Punishment in Islam.

41. Islam and Roman Law.

42. Islamic and Roman Slavery.

43. Who is competent witness.

44. Concept of Nationhood and Two Nation Theory.

45. Various kinds of justice.

46. Judicial system of Islam.

47. Notes: Ihtihad and Taqlid, Legal Capicity, Zimi.

Constitutional Law – I – Questions:

1. Salient features of UK and USA Constitution.

2. Meaning of Rule of Law in UK constitution.

3. Arbitrary and discretionary powers, UK.

4. Unlimited legislative powers, UK.


5. Limitation on Supremacy, UK.

6. UK Constitution is unwritten, discuss.

7. Privileges of UK Parliament.

8. Role of Queen.

9. Form of Govt. UK and USA.

10. Functions of Parliament, UK and USA.

11. Writ of “Habeas Corpus” in England.

12. Separation of Powers, UK and USA.

13. Composition of Cabinet and work, UK and USA.

14. Limitation of UK Parliament.

15. What are sources of UK and USA Constitutions.

16. Fifth amendment in USA.

17. Judicial Review under USA Constitution.

18. Equal protection of laws, USA.

19. Power of President, Congress, Lower House, Upper House, and Senate.

20. Presidential System of USA.

21. Due process of law, USA.

22. Elections of President, Vice President, USA.

23. Check and Balance in USA and UK.

24. Federal System in USA.

25. USA Supreme Court.

26. Impeachment.

27. Comparison – Prime Minister and President, UK and USA.

28. Process of amendment in USA Constitution.

29. Judicial functions of UK Parliament.

30. Rights of Englishmen and enforcement.

31. Fundamental Rights, USA.


32. Notes: Judicial Committee of the Privy Council, Convention, Royal Prerogative, Lord Chancellor, Money Bill, House
of Lords, Ministerial Responsibility, Prime Minister, Act of State, British Monarchy, 14th Amendment, Bill of rights,
Magna Carta.

Criminal Law – Questions:

1. Define and distinguish Common Intention and Common Object.

2. How the lesser punishment is given u/s 302.

3. Define Criminal Trespass and Lurking House Trespass, House Breaking, and punishment.

4. Define Counterfeit, Harbor, Voluntarily, Valuable Security.

5. Bribe as a crime in Public Service.

6. Discuss Enquiry, Investigation, and Trial.

7. Wrongful Restraint, Wrongful Confinement, and punishments.

8. Without order and warrant arrest is justified.

9. What is effect of error in change? Is error curable.

10. How sentence can be suspended.

11. Transfer of enquiry from one to another Court.

12. Offences of Criminal Misappropriation, Criminal Breach of Trust, and Cheating, under Pakistan Penal Code.

13. Define Public Servant and Servants of the State.

14. Giving False Evidence, Fabricating False Evidence, and Punishments.

15. Define Hijacking and punishments.

16. What is Harboring Hijacker.

17. Meaning of Bail and factors for Bail.

18. Recording of confession.

19. Define High Court, Advocate General, Public Prosecutor, Pleader, Place, Sub-Division.

20. Define abetment and criminal conspiracy.

21. Right of Private Defence and death of wrongdoer.

22. Define Stolen Property and different conditions.

23. Define cheating by personating and punishment.

24. Define defamation and punishments.

25. Threat and punishment.


26. Power of Appellate Court.

27. What is summery trial.

28. Define Rioting (Balwa), Affray (Hangama).

29. Define Gender, Number, Man and Woman, A Will.

30. Define theft extortion, robbery, docaity.

31. To which punishment, offenders, are liable under PPC.

32. Distinguish Diyat, Arsh, Daman.

33. Circumstances – Habeas Corpus.

34. What persons may be charged or tried together.

35. Various classes of criminal courts.

36. Homicide is ordinarily classified as Justified, Executable, Felonious. Discuss.

37. What is General Exception in Criminal Liability.

38. How criminal liability is measured.

39. Right of Private Defence or Property and death.

40. The Mark and Mark Property. What are differences.

41. Cognizable offences under the Prohibition Order, 1979.

42. Who can sue under Qazf Ordinance, 1979.

43. Qatl-I-Amad and Waiver and Compound.

44. Isqat-e-Hamal (Abortion) and Isqate-e-Janin, and punishments.

45. Zina bil Jabar (Rape) and punishments.

46. Duress, necessity, Superior Order can be invoked.

47. Yardsticks for determining the question of punishment in a criminal trial.

48. Hurt not liable to Qisas.

49. Cohabitation (sexual relations) and punishment.

50. How does liability accrue (increases) without default.

51. Abduction (take away woman).

52. Define Act, Omission, Government, Injury, Life, Death.

53. Kinds of Shajjah and Punishments.


54. Bail in Non Bail-able offences.

55. How fine can be recovered.

56. How assembly of people can be dispersed.

57. Define Theft Liable to Hadd, Qazf liable to Hadd, and Punishment.

58. Various kinds of Murder and punishments.

59. Hurt without Qisas.

60. Define Judge, Court of Justice, Reasons to Believe, Section, Oath, Forgery.

61. Right to defend property.

62. Motive and Crimes.

63. Theories of negligence.

64. Drinking and Hudood.

65. Crime and Tort.

66. Mistake of Law and Fact.

67. Notes: Local and Special Law, Illegal and Legally Bound to do, Person and Public, Dishonesty and Fraudulently.

Law of Contract – Questions:

1. Define and explain consideration, reciprocal promises, void-able contract, and void agreement.

2. What is meant by Fraud?

3. What are rights of party whose consent has been caused by fraud.

4. Define and explain Mistake of Law and Fact, and their effects on contract.

5. Rights of party suffering from a breach in the following situations:

a. When no sum is mentioned in the contract as payable for breach.

b. When sum is mentioned.

What are rights of a party which has itself rescinded a contract.

6. How far is a principal bound by the acts of his agent while dealing with parties in the following cases:

a. When the agent exceeds his authority and

b. When the agent commits a fraud.

What is liability of a pretending agent.

7. State the facts and the law laid down in the case of Hadly and others – v – Basendale and others.
8. Rights and duties of a bialee.

9. How can an agency be created.

10. Authority of agent to act on behalf of the principal.

11. Principles on which damages for breach of contract are to be awarded by a Court.

12. Case Byrne – v – Von Tienhoven and Co.

13. When and how can proposal and acceptance can be revoked.

14. What Coercion, Undue Influence, and Fraud.

15. Consequences which ensue from breach of a valid contract.

16. How and under what circumstances is agency terminated.

17. What are contingent contracts? When can they be enforced.

18. Case Mohri – v – Dharmodas Ghosh.

19. Different situations in which agreements, though made by free consent of parties, competent to contract are yet
void.

20. What is pledge, rights and duties of the Pawner and Pawnee.

21. Appropriation of payment towards debts.

22. Under what circumstances are obligations created as resembling those created by a contact though no contract is
entered into.

23. What is continuing Guarantee? How the liability discharges.

24. When is the suggestion of fact not fraud, but a misrepresentation.

25. What is a contract of indemnity and how differs from contract of Guarantee.

26. When is communication of 1. A Proposal, 2. An Acceptance, and 3. A Revocation said to be complete.

27. Define proposal, promise, promisor, promisee, and consideration.

28. Various kinds of bailment.

29. Does the Pawnee or agent have any lien over the goods pledged or property in his custody.

30. Ratification of principal act of his agent.

31. What is rule of compensation on breach of contract.

32. How does liquidated damages differ from penalty.

33. Circumstances which render the original contract need not to be performed.

34. Difference Sales and an agreement to sell and bailment.


35. How contract of sale of goods be made whether 1. In writing, 2. Oral, and 3. Implied.

36. Can a contract be made without consideration.

37. What are contingent contracts.

38. Who is an unpaid seller.

39. Under what circumstances when there is no contract.

40. Rights of finder lost goods.

41. Conditions for immediate return of goods loaned gratuitously for use of a fixed term. Passing of property.

42. Remedies under Sales of Goods Act.

43. What are conditions and warranty.

44. Agreements by way of wager.

45. Duties of buyer and seller of goods.

46. Notes: Consideration, Free Consent, Wagering Contracts.

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