The Pakistan Penal Code, 1860

 

THE PAKISTAN PENAL CODE, 1860

ACT NO. XLV OF 1860

[As Amended up-to-date]

CHAPTER I INTRODUCTION

Preamble. WHEREAS it is expedient to provide a general Penal Code for Pakistan. It is enacted as follows:

1. Title and extent of operation of the Code. This Act shall be called the Pakistan Penal Code and shall take effect throughout Pakistan.

2. Punishment of offences committed within  Pakistan. Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within Pakistan.

Notes: “Every person” comprehends all persons without limitation and irrespective of nationality, allegiance, rank, status, caste, colour or creed PLD 958 S.C. (Ind.) 115.

Under no law a person has a right to inflict punishment on a person supposed to have committed an offence or moral wrong even under the Islamic Law general disrepute would not entitle any body to punish the person complained against. PLD 1951 Pesh. 6.

“Shall be liable to a fine”. Not incumbent upon the Court to enforce fine. PLJ 1978 S.C. 189.

3. Punishment of offences committed beyond, but which by law may be tried within Pakistan. Any person liable, by any Pakistan Law, to be tried for an offence committed beyond Pakistan shall be dealt with according to the provisions of this Code for any act committed beyond Pakistan in the same manner as if such act had been committed within Pakistan.

Notes: Foreigner committing offence-Punishable. PLD 1958 S.C. (India) 115.

Theory of Floating Island: This jurisdiction is based on the principles that a ship on the High Seas is a floating Island belonging to the State whose flag she is flying. The jurisdiction of local Courts extends over ‘the ships having its flag whether the ships are sailing or anchored, whether on the High Seas or in rivers below the bridges, where the tide ebbs and flows, and where great ships go.

Extradition offences: Following are extradition offences:­

(1) Culpable homicide.

(2)        Maliciously or wilfully wounding or inflicting grievous bodily harm. .

(3)        Rape.

(4)        Procuring or trafficking in women or young persons for immoral purposes.

(5)        Kidnapping, abduction or false imprisonment or dealing in slaves.

(6)        Stealing, abandoning, exposing or unlawfully detaining a child.

(7)        Bribery.

(8)        Perjury or subornation of perjury or conspiring to defeat the course of justice.

(9)        Arson.

(10)      An offence concerning counterfeit currency.

(11)      An offence against the law relating to forgery.

(12)      Stealing, embezzlement, fraudulent conversion, fraudulent false accounting, obtaining property or credit by false

pretences, receiving stolen property or any other offence in respect of property involving fraud.

(13)      Burglary, house-breaking or any similar offence.

(14)      Robbery.

(15)      Blackmail or extortion by means of threats or by abuse of authority.

(16)      An offence against bankruptcy law or company law.

(17)      Malicious or wilful/damage to property.

(18)      Acts done with the intention of endangering vehicles, vessels or aircraft.

(19)      An offence against the law relating to dangerous drugs or narcotics.

(20)      Piracy.

(21)      Revolt against the authority of the master of a ship or the commander of an aircraft.

(22)      Contravention of import or export prohibitions relating to precious stones, gold and %or precious metals.

(23)      Aiding and abetting, or counselling or procuring the commission of or being an accessory before or after the fact to, or attempting or conspiring to commit, any of the aforesaid offences.

Extradition Act 1972. Act XXI of 1972. PLD 1973 Cent. St. 17.

4. Extension of Code to extra-territorial offences. The provisions of this Code apply also to any offence committed by:

[Subs. by Ord. XXVII of 1981] (1) any citizen of Pakistan or any person in the service of Pakistan in any place without and beyond Pakistan];

(2) Omitted by A.O. 1961.

(3) Omitted by Ord. XXVII of 1981 Second Sch. Item 4.

(4) any person on any ship or aircraft registered in Pakistan wherever it may be. Explanation. In this section the word “offence” includes every act committed outside Pakistan which, if committed in Pakistan, would be punishable under this Code.

Illustrations

(a)  A, a Pakistan subject commits a murder in Uganda. He can be tried and convicted of murder in any place in Pakistan in which he may be found.

(b)   Omitted by Ord. XXVII of 1981.

[Subs. by Ord. XXVII of 1981.] (c) C, a foreigner who is in the service of Pakistan, commits a murder in London. He can be tried and convicted of murder at any place in Pakistan in which he may be found].

(d)        D, a British subject living in Junagadh, instigates E, to commit a murder in Lahore. D is guilty of abetting murder.

Notes: Nationality not relevant if case covered under S. 4. PLD 1956 S.C. (Ind) 81. Provisions attracted when any citizen of Pakistan commits such offence even beyond the territories of the country. 1989 P.Cr.L.J. 369.

[Subs. Ibid. w.e.f. 8.7.1981.

5. Certain laws not to be affected by this Act. Nothing in this Act is intended to repeal vary, suspend, or affect any of the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the State, or of any special or local law.

CHAPTER II  GENERAL EXPLANATIONS

6. Definitions in the Code to be understood subject to exceptions. Throughout this Code every definition on an offence, every penal provision and every illustration of every such definition or provision, shall be understood subject to the exceptions contained in the Chapter entitled "General ,Exceptions", though those exceptions are not repeated in such definition, penal provision or illustration.

Illustrations

(a) The sections in this Code, which contain definitions of offences, do not express that a child under seven years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.

(b) A, a police officer, without warrant, apprehends Z who has committed murder. Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z, and therefore the case falls within the general exception which provides that "nothing is an offence which is done by a person who is bound by law to do it".

Notes: Mistake of fact can be a defence if the same is in good faith. 1990 P.Cr.L.J. 196. ,

7. Sense of expression once explained. Every expression which is explained in any part of this Code is used in every part of this Code in conformity with the explanation.

8. Gender. The pronoun "he" and its derivatives are used of any person, whether male or female.

9. Number. Unless the contrary appears from the context, words importing the singular number include the plural number, and words importing the plural number include the singular number.

10 . "Man", "Woman". The word "man" denotes a male human being of any age; the word 'woman" denotes a female human being of any age.

11. "Person". The word "person" includes any Company or Association, or body or person, whether incorporated or not.

Notes: Bank-Included in the definition. 1989 P.Cr.L.J. 131.

Corporate body: A corporate body is a juristic person. It ought to be indictable for criminal act or omissions of its directors, or authorized agents or servants, whether they involve mens rea or not, provided they have acted or have purported to act under authority of the corporate body or in pursuance of the aims or objects of the corporate body. 1971 P.Cr.L.J. 537.

12. "Public". The word "public" includes any class of the public or any community.

13. [Definition of "Queen"] Omitted by A.0., 1961. Art. 2 and Sch. (with effect from 23rd March, 1956).

14. “Servants of the State”. The words “servant of the State” denote all officers or servants continued, appointed or employed in Pakistan, by or under the authority of the Central Government or any .Provincial Government.

15. [Definition of "British" India] Rep. by A.0., 1937.

16. [Definition of "Government India"]. Rep. by A.0., 1937.

17. “Government”. The word “Government” denotes the person or persons authorized by law to administer executive Government in Pakistan, or in any part thereof.

18. ["Definition of Presidency"]. Rep. by A.0. 1937.

19. “Judge”. The word “Judge” does not only denote every person, who is officially designated as a judge, but also every person;

who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or

‘ who is one of a body of persons, which body of persons is empowered by law to give such a judgment. ,

Illustrations

(a) [Omitted by Ord. XXVII of 1981].

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment with or without appeal, is a judge.

(c) [Omitted by Act 26 of 1951].

(d) [Omitted by Ord. XXVII of 1981].

Notes: ‘Judge’ and ‘Court’: The terms ‘Judge’ and ‘Court’ are often used interchangeably as synonymous. Generally speaking a Judge is properly identified with the Court, in relation to something done in exercise of the jurisdiction of the Court. Otherwise his personality remains distinct and separate from the Court. As individual, he remains subject to the laws of the land like the rest of the citizenry, save when expressly exempted. PLD 1976 S.C. 315.

20. “Court of Justice”. The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.

21. “Public servant”. The words “public servant” denote a person falling under any of the descriptions hereinafter following namely:

First. [Omitted by Ord. XXVII of 1981].

Second. Every Commissioned Officer in the Military, Naval or Air Force of Pakistan while serving under the Central Government or any Provincial Government;

Third. Every Judge;

Fourth. Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process or to administer any oath, or to interpret, or to preserve order in the Court; and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth. Every juryman, assessor or member of a panchayat assisting a Court of Justice or public servant;

Sixth. Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority.

Seventh. Every person who holds any office by ‘virtue of which he is empowered to place or keep any person in confinement;

Eighth. Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety, or convenience;

Ninth. Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue ­process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty;

Notes: The test to determine whether a person is an officer within the meaning of the section is (i) Whether he is in the service or pay of the Government; and

(ii) Whether he is entrusted with performance of any public duty. PLD 1957 S.C. (Ind.) 170.

Tenth. Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate of tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh. Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election.

Illustrations

A Municipal Commissioner is a public servant.

Explanation 1. Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

Explanation 2. Wherever the words “public servant’ occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

Explanation 3. The word “election” denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.

Notes: The words public servant’ denotes a person who holds any office in virtue of which he is empowered to do an act for or on behalf of the Government or a local agency. He must be holding some office or officium, humble or exalted, high or low in the sense that he must exercise to some extent a delegated function of the Government and he must be in this behalf either himself armed with some authority of a representative character, or his duties must be immediately auxiliary to those someone who is also armed. PLD 1962 Lah. 144. Appointment as such of the incumbent is not a precondition rather actual possession of the situation. PLD 1967 S.C. 23. Person gratuitously performing a duty of the name mentioned in this clause would be a public servant pro tanto. PLD 1958 Dacca 167.

Besides the following have also been held to be public servants:-

(1)  A Minister is a public servant. PLD 1964 Dacca 330 + PLD 1961 Dacca 753.

(2)  Nikah Registrar. PLD 1969 S.C. 435.

(3)  Manager of Bank controlled by Feral Government. 1986 P.Cr.L.J. 1530.

(4)  Treasurer employee of municipality. PLD 1965 Lah. 369; 1971 P.Cr.L.J. 1310.

(5) Accountant of Agricultural Development Bank. 1968 P.Cr.LJ 869.

(6) Head Cashier of Electric Company purchased by Government. PLD 1963 Kar. 26.

(7) Employees of Karachi Road Transport Corporation. 1987 P.Cr.L.J. 586.

(8) Upper Division Clerk of Canteen Store Department. PLD 1986 S. C. ,550.

(9) Auctioneer to Government. 1981 SCMR 1112.

(10) Every Railway servant. PLD 1964 Dacca 240.

(11) A liquidator appointed by the Registrar Cooperative Societies. PLD 1960 Dacca 431.

(12) Member of Union Council and every servant of Local Government. 1992 P.Cr.L.J. 547.

Following are not public servants:—–

(1) A Chowkidar of Government Godown. PLD 1963 Dacca 839.

(2)  Secretary of District Soldiers, Sailors & Airmen’s Board. PLD 1960 Dacca 1049.

(3)  Municipal Councillor. 1986 PSC 710; AIR 1984 S.C. 684.

(4)  Employees of Cooperative Industrial Establishment not public servants but are workmen. PLD 1989 S. C. 152.

22. “Movable property”. The words “Movable property” are intended to include corporeal property of every description, except land and thing attached to the earth or permanently fastened to anything which is attached to the earth.

Notes: The definition includes ‘corporal property’ of every description, re. a property perceivable by the senses in contradiction of incorporeal rights which are not so perceivable. Immovable things becoming movable by service Would fall within this definition. Earth, that is a soil and all the component parts of the soil, including stores, sand and minerals etc., when severed from the earth or land to which attached would become movable. It would likewise apply to the machinery equipments fastened to the earth, roof or ceiling, when detached.

23. “Wrongful gain”. Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled.

“Wrongful loss”. “Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled.

Gaining wrongfully. Losing wrongfully. A person is said to gain wrongful when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property.

Notes: What is indicative of the expression ‘wrongful gain’ or ‘wrongful loss’ is the absence of legal right, i.e. causing such ‘gain’ or ‘loss’ by unlawful means. It covers whole or part of the ‘gain’ or ‘loss’. It is not necessary that the loss or gain should be permanent, it may be temporary or for the time being. Taking out of the Army aircraft by the accused for an unauthorized flight gives him the temporary use of the aircraft. Such use being unauthorized and against all the regulations of air-flying is a gain or loss by unlawful means for the purpose of this section. PLD 1957 S.C. 317.

24. “Dishonestly”. Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing “dishonestly”.

Notes: Person failing to protect interest of bank against effect of guarantee exposing the bank to serious risk of loss by secretive, stealthy and surreptitious execution and delivery of guarantee can be said to act dishonestly within the meaning of the section. 1987 P.Cr.L.J. 1096. The expression ‘defraud’ involves two elements, namely deceit and injury to the person deceived. Injury is something else than mere economic loss, that is deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. It is a non­-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived if there is an intention to defraud. AIR 1963 S.C. 1572.

Taking these two definitions together, a person can be said to have dishonest intention if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss by wrongful means, of property to which the person so losing is legally entitled. It is further clear from the definition that the gain or loss contemplated need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention of property by the person wrongfully gaining or a temporary ‘keeping out’ of property from the person legally entitled. PLD 1957 S.C. (Ind) 317.

25. “Fraudulently”. A person is said, to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.

Notes: ‘Fraudulently and with intent to defraud’ means intent to deceive in such a manner as to expose any person to loss or risk of loss, and ‘loss’ means not only a deprivation of property but covers the infringement of any right possessed by a person. Where there is an intention to deceive and by means of it to obtain an advantage, there is fraud. 1987 P.Cr.L.J. 247, 1096. The words ‘fraudulently’ and ‘dishonestly’ do not convey the same meanings. If there is intention by the deceit practised to cause wrongful loss that is dishonestly, but even in the absence of such an intention, if the deceitful act wilfully exposes anyone to risk to loss, there is a fraud.

Defraud: The expression ‘defraud’ includes two elements, namely deceit and injury to the person so deceived. AIR 1963 S.C. 1572.

26. “Reason to believe”. A person is said to have “reason to believe” a thing if he has sufficient cause to believe that thing but not otherwise.

Notes: The expression is distinguishable from knowledge. ‘Knowledge’ signifies a mental condition whereas ‘believe’ show visual perception. The later is a very much stronger than ‘suspect’ and it involves the necessity of showing that the circumstances of the case are such that a reasonable man must have felt convinced in his mind of the resultant consequence of a fact.

27. Property in possession of wife, clerk or servant. When property is in the possession of a person’s wife, clerk or servant, on account of that person, it is in that person’s possession within the meaning of this Code.

Explanation. A person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is a clerk or servant within the meaning of this section.

Notes: Government property in possession of Government servant. Person deceived would be the Government. PLD 1960 SC (Pak.) .168.

28. “Counterfeit”. A person is said to “counterfeit”. who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised.

Explanation 1. It is not essential to counterfeiting that the imitation should be exact.

Explanation 2. When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised.

Notes: A person is said to ‘counterfeit’ trade mark within the meaning of section 28 only when the two prerequisite conditions concur, namely (1) that the accused had caused “one thing to resemble another thing”, both things must be either same or of similar description; and (2) that the accused had intended by that resemblance to practise deception or is saddled with the knowledge that while causing that resemblance it was likely that deception would thereby be occasioned. PLD 1969 Kar. 245.

29. “Document”. The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

Explanation 1. It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.

Illustrations

A writing .expressing the terms of a contract, which may be used as evidence of the contract, is a document.

A cheque upon a banker is a document. A Power-of-Attorney is a document.

A map or plan which is intended to be used or which may be used as evidence, is a document. A writing containing direction or instruction is a document.

Explanation 2. Whatever is expressed by means of letters, figures or marks’ as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.

Illustrations

A writes his name on back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words “pay to the holder” or words to that effect had been written over the signature.

Notes: Construction of document depends essentially upon the nature and its intended use. It is not necessary that it should be in every case in writing or contain the signatures or facsimile of any person. A false, forged, or fabricated document or a writing which is not a legal evidence, or document not properly executed or signed by all the intended parties, is yet a document if the parties framing it believe to be and intended to be evidence of such matter. A document must be construed as a whole. PLD 1967 S.C. 200. If not objected should be deemed to have been admitted. PLD 1968 S.C. 140. Question as to proper construction of a document is always question of law. PLD 1974 S.C. 204. Not admissible in evidence unless proved. PLD 1973 S.C. 160.

30. “Valuable security”. The words “valuable security” denote a document which is, or purports, to be a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.

Illustrations

A writes his name on the back of a bill of exchange. As the effect of his endorsement is to transfer the right to the bill to any person who may become the lawful holder of it, the endorsement is a “valuable security”.

Notes: Power of attorney-.4 valuable security. 1989 P.Cr.L.J. 239 + 22 DLR 708.

31. “A will”. The words “a will” denote any testamentary document.

Notes: A ‘will’ is a testamentary document to be given effect after ‘one’s death. According to Mohammedan Law every Mohammedan of sound mind and not a minor is competent to dispose of his property by will. It may be made either verbally or in writing upto the extent 1/3rd of the surplus estate after payment of funeral expense of debts. Beyond the legal third a ‘will’ cannot take effect unless the heirs consent thereto after the death of the testator.

32. Words referring to acts include illegal omissions. In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.

The Pakistan Penal Code, 1860

 

33. “Act”: “Omission”. The word “act” denotes as well a series of acts as a single act: the word “omission” denotes as well a series of omissions as a single omission.

Notes: The term ‘act’ according to section 33 denotes not only specific instance but connotes series of acts as well as series of illegal omissions. AIR 1939 Pat. 625.

34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.

Notes: Common intention–Essence of liability to be found in. the existence of common intention animating the accused leading to the doing of a criminal act. PLD 1983 S.C. 35. A mental condition. 1969 SCMR 599. There must be a prior making of minds. PLD 1956 S.C. (Ind.) 176. Mere presence not sufficient. 1969. SCMR 454. Intention may be gathered from the conduct of the person. PLD 1954 F.C. 77. Existence. Not susceptible of direct proof. 1973 SCMR 69. Some overt act must be established. PLD 1970 S.C. 316. Fatal blow not attributed to the co-accused. Not a case of common intention. PLD 1972 Lah. 19. It may develop suddenly. PLD 1975 S.C. 351. Mere presence of person on the spot does not necessarily attract S. 34. NLR 1978 S.C. (Criminal) 636; 1978 SCMR 49.

Constructive liability Evidence of pre-concert reliable and worthy of credit. 1974 SCMR 251. Accused present but not trying to prevent cc-accused from committing crime. Both covered by S. 34. PLD 1983 S.C. 35. Both the parties at higher tempers. Sudden quarrel/fight. Case under Except. IV to S. 300, P.P.C. PLD 1982 S.C. 337. Common intention and common object. Not synonymous. 1971 P.Cr.L.J. 445. Common intention and abetment. Actual commission of the abetted act is not a sine qua non of the offence of abetment nor so is the guilty intention or knowledge of the person abetted or its community with the abettor. PLD 1971 Lah. 959. Assailants aggressors. 1981 SCMR 223. Both co-accused coming armed. 1981 Law Notes 476. Both the accused armed. 1986 SCMR 1232-1 question of fact. 1986 P.Cr.L.J. 259-Strong circumstances should exist. 1986 P.Cr.L.J. 1310. Person charged must have consented to commission of crime committed and act done must be act contemplated. 1988 P.Cr.L.J. 645 + 1987 MLD 985 + NLR 1987 P.Cr.L.J. 590. Knowledge is not something as intention. 1988 P.Cr.L.J. 645. Accused closely related. 1987 P.Cr.L.J. 1958. No premeditation or preconcert. PLD 1987 Pesh. 164. Concept. 1991 P:Cr.LJ 2110. Intention-What is? 1987 MLD 1489. Constructive liability. 1987 MLD 985. Common object of unlawful assembly. 1990 MLD 461 + PLD 1957 S.C. (Ind.) 133. Knowledge and common intention-Mere presence may not be sufficient. PLD 1991 S.C. 923. Offence against property (Enforcement of Hudood) Ordinance, 1979 [S. 17(4)]. 1991 P,Cr.L.J. 2110. There must be material to show some avert act done in furtherance of common intention. 1990 MLD 461. A case of double—Not to apply Ss. 34, 107 & 149 PPC. PLD 1988 S.C. 86. It must be proved satisfactorily that person so convicted had common intention of doing that particular act. 1987 MLD 985. It is necessary to examine the act itself of the accused. 1987 MLD 1489 + PLD 1963 Kar. 118. Benefit of doubt. 1987 MLD 2227. Presumption must not be readily applied or pushed too far., 1986 MLD 2584. Principal accused acquitted. PLD 1988 Pesh. 123. Common intention and abetment. PLD 1986 Quetta 26. ‘

35. When such an act is criminal by reason of its being done with a criminal knowledge or intention. Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as  if the act were done by him alone with that knowledge or intention.

36. Effect caused partly by act and partly by omission. Whenever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by omission is the same offence.

A intentionally causes Z’s death partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.

37. Co-operation by doing one of several acts constituting an offence. When an offence is committed by means of several acts, whoever intentionally co­operates in the commission, of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence.

Illustrations

(a) A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effects of the several doses of poison so administered to him. Here A and B intentionally co-operate in the commission of murder and as each of them does an act by which the death is caused, they are both guilty of the offence thought their acts are separate.

(b) A and B are joint jailors, and as such, have the charge of Z, a prisoner, alternately for six hours at a time. A and B intending to cause Z’s death, knowingly co-operate in causing that effect by illegally omitting, each during the time of his attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and B are guilty of the murder of Z.

(c) A, a jailor, has the charge of Z, a prisoner. A intending to cause Z’s death illegally omits to supply Z with food; in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death. A is dismissed from his office, and B succeeds him, B, without collusion or co-operation with A illegally omits to supply Z, with food, knowing that he is likely thereby to cause Ts death. Z dies of hunger. B is guilty of murder, but as A did not co-operative with B, A is guilty only of an attempt to commit murder.

38. Persons concerned in criminal act may be guilty of different offences. Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offence, by means of that act.

Illustrations

A attacks Z, under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder, B having ill-will towards Z and intending to kill him, and not having been subject to the provocation assists A in killing Z. Here, though A and B are both engaged in causing Z’s death. B is guilty of murder, and A is guilty only of culpable homicide.

Notes: The principles of this section applies to offence under S. 149, P.P.C. PLD 1968 S.C. 372. The section provides different punishments for different offences. AIR 1925 P.C. 1 – 52 I.C. 40.

40. “Offence”. Except in the chapters and sections mentioned in clauses (2) and (3) of this section, the word “offence” denotes a thing made punishable by this Code.

In Chapter IV, Chapter V A and in the following sections, namely, sections, 64; 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445 the word “offence” denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.

And in sections 141, 176, 177, 201,202, 212, 216 and 441 the word “offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.

41. “Special law”. A “special law” is a law applicable to a particular subject.

42. “Local law”. A “local law” is law applicable only to a particular part of the territories comprised in Pakistan.

43. “Illegal”: “Legally bound to do”. The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which. furnishes ground for a civil action: and a person is said to be “legally bound to do” whatever it is illegal in him to omit.

Notes: Medical Officer charging fees in excess. Not doing something illegal. PLD1961 S.C.224.

Illegality of jurisdiction: Where Court or Tribunal has jurisdiction and it determines a question it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on question of fact or even of law. PLJ 1976 S. C. 480.

44. “Injury”. The word “injury” denotes any harm whatever illegally caused to person, in body, mind, reputation or property.

45. “Life”. The word “life” denotes the life of a human being, unless the contrary appears from the context.

46. “Death”. The word “death” denotes the death of a human being, unless the contrary appears from the context.

47. “Animal”. The word “animal” denotes any living creature, other than a human being.

48. “Vessel”. The word “vessel” denotes anything made for the conveyance by water of human beings or of property.

49. “Year”: “Month”. Wherever the word “year” or the word “month” is used, it is to be understood that the year or the month is to be reckoned according to the British calendar.

50. “Section”. The word “section” denotes one of those portions of a chapter of this Code which are distinguished by prefixed numeral figures.

51. “Oath”. The word “oath” includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a public servant or to be used for the purpose of proof, whether in a Court of Justice or not.

52. “Good faith.” Nothing is said to be done or believed in “good-faith” which is done or believed without due care and attention.

Notes: The expression ‘good faith’ signifies ‘honesty of intention’. In Criminal Law it signifies exercise of due care and attention meaning thereby employing genuine efforts to reach the truth. This section does not define ‘good faith’ but gives a negative definition that ‘nothing is said to be done or believed in ‘good faith’ when it is done or believed without due care and caution. Section 52 makes no reference to the moral elements of honesty and right motive which are involved in the popular significance of the expression ‘good faith’ and which are predominant in the positive definition enacted in the other Acts, e.g., the General Clauses Act, 1897. AIR 1953 Mad. 936.

The Penal Code was enforced in 1860 whereas General Clauses Act was promulgated in 1897. The definitions in the General Clauses Act are to apply to all Central Act made after the commencement of the General Clauses Act if there is nothing repugnant in the subject or context as is clearly mentioned in the beginning of section 30 which contains definitions. Therefore an accused can succeed on the basis of ‘good faith’ only if he can establish that his ‘good faith’ accords with the provisions contained in section 52 of the Penal Code. PLD 1958 Lah. 747.

52-A. “Harbour.” Except in section 157, and in section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word “harbour” includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means whether of the same kinds as those enumerated in this section or not, to evade apprehension.] [Inst. by Penal Code Amendment Act, 1942.]

Notes: Section 52-A was inserted by Penal Code (Amendment) Act, 1942, to provide a uniform meaning to the expression ‘harbour’, which expression has occurred in more ‘than one sections of the Penal Code. (It finds mentioned in Ss. 130, 136, 157, 212 and 216-A of the Code). With the exception of Ss. 157 and 130 the word ‘harbour’ includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means akin to those mentioned. This clearly shows that mere knowledge of the whereabouts of an offender does not amount to harbouring him. AIR 1935 Cal. 350. Likewise merely giving food or shelter to an offender without knowing that he was an offender would not amount to harbouring.

CHAPTER III OF PUNISHMENTS

["53. Punishment. The punishments to which offenders are liable under the provisions of this Code are:

Firstly, Qisas;

Secondly, Diyat;

Thirdly, Arsh;

Fourthly, Daman;

Fifthly, Ta'zir;

Sixthly, Death;

Seventhly, Imprisonment for life;

Eightly, Imprisonment which is of two descriptions namely:-­

( i) Rigorous i.e., with hard labour;

(ii) Simple

Ninthly, Forfeiture of property,

Tenthly, Fine." [Sub. by Cr. Law (Third Amendment) Ordi. 1992 X of 1992. The amendment takes effect from 12th day of Rabi-uAwwal, 1411 H. (i.e. 3rd of October, 1990, as per Cr. Law (Second Amendment) Ordinance, 1990.  Reinforced by Ordi. XVII of 1992. PLD 1993 Cent. St. 70].

Notes: Section 53 as substituted-Effect: The Islamic Penal Law introduced by substituting sections 53, 299 to 338 in the Pakistan Penal Code for the previous sections by the Amending Ordinance, 1990 is not a mere change in the form or nomenclature but change in substance, content, meaning and the consequences flowing there from. Thus any apparent similarity in the two provisions e.g. culpable homicide amounting to murder and qatl-i-amd is not to mislead us as this similarity is due to the reason that Islamic Penal Laws were in force when the British acquired suzerainty over the Sub-Continent and the new laws enforced to serve the imperial interests, retained some of the features of the old laws. PLD 1991 Lah. 346. ,

“Qisas” is a punishment in money payable to heirs of the victim of murder by the offender. It is riot fixed. The heirs can demand any sum of money. The Court has no right to curtail the demand, however, the parties can reach to any settlement through compromise. There is no point of time fixed for the payment of ‘Qisas’ meaning thereby that it can be paid before or after the award of sentence but before execution. Under the Islamic Law the sentence of ‘Qisas’ is not to be executed where even one of the heirs pardons or accepts ‘Diyat’ at the last moment.

‘Ta’zir” is a punishment which is not fixed by the legislature but is left to the discretion of the Court

The word ‘Ta’zir” is derived from the word ‘Azar” which means to prevent, to respect, to reform. It is discretionary punishment to be inflicted for transgression against Allah or against an individual, for which there is neither a fixed punishment nor a penance or expiration. (Kaftara). It includes chastisement, admonition, reprimand, flogging, imprisonment, fines etc.

“Diyat” means compensation as specified in section 323 Cr.P.C., payable to the heirs of the victim by the offender. The value of the ‘Diyat’ has not been fixed and is left to be determined by the Court keeping in view the injunction of Islam as laid down in the Holy Qur an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim.

“Arsh” means the compensation specified to be paid by the offender to the victim or his heirs.

“Daman” means the compensation determined by Court to be paid by the offender to the victim for causing a hurt not liable to Arsh’.

Transportation for life: Although transportation for life means a sentence for the remaining span of the natural life of the convict, yet it has been accepted as being of twenty years duration in vies of the provisions contained in section 57 of the Pakistan Penal Code. 1968 Lah. 1 + 1981 SCMR 4222 Now twenty five years as S. 57, PPC has been amended by Law Reforms Ordinance, 1972.

Shall be liable to fine: Words ‘shall be liable to fine’ do not make it incumbent upon the Court t. impose a fine. PLJ 1978 S.C. 189.

Sentence passed not authorized by law-1 sentence passed which is not authorized by law i illegal. 1968 Cr.L.J. 309.

54. Commutation of sentence of death. In every case in which sentence of death shall have been passed, the Central Government or the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for any other punishment provide by this Code.

["Provided that, in a case in which sentence of death shall have been passed against an offender convicted for an offence of, qatl, such sentence shall not k commuted without the consent of the heirs of the victims.".][Added by ibidi.]

Notes: Repugnancy to Injunctions of Islam: Provision of section 54, P.P.C. and Ss. 401, 4( 402-A & 402-B, Cr.P.C. in so far as they empower the Central Government or a Provincial Government commute the sentence of death in case of Qatal-al-amd or Jurh-ul-amd or in any other offence violati the Huqooq-ul-Ibad are repugnant to Injunctions of Islam. PLD 1989 S.C. 633. (Sh. A. Bench)

55. Commutation of sentence of imprisonment for life. In every case which sentence of  [Subs. by ordinance XII of 1972.][imprisonment] for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years:

["Provided that, in a case in which sentence of imprisonment for life shall have been passed against an offender convicted for an offence punishable under Chapter XVI, such punishment shall not be commuted without the consent of the victim or, as the case may be, of his heirs.".] [Added by Cr. Law. (Third Amendment) Ordi. 1992]

55-A. Saving for President’s Prerogative. Nothing in section fifty-four or section fifty-five shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment.

["Provided that such right shall not, without the consent of the victim or, as the case may be, of the heirs of the victim, be exercised for any sentence awarded under Chapter XVI.".] [Added by ibid ]

56. Sentence of Europeans and Americans to Penal servitude. [Rep. by the Criminal Law (Extinction of Discriminatory Privileges), Act, 1949 (II of 1950, Schedule].

57. Fractions of terms of punishment. In calculating fractions of terms of punishment. [Subs. by Ordi. XII of 1972. ][imprisonment] for life shall be reckoned as equivalent to imprisonment for [Subs. by Ordi. XII of 1972.] [twenty-five] years.

Notes: Sentence of transportation for life is to be reckoned as equivalent to imprisonment for 20 years. 1981 SCMR 422 (Before amendment). Sentence should correspond to penalty prescribed at the time of commission. 1989 SCMR 529. Object to lay a basis for remission system. PLD 1992 S.C. 14.

58. [Omitted by Law Reforms Ordinance, 1972].

59. [Omitted by Law Reforms Ordinance, 1972].

60. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple. In every case in which an offender is punishable with imprisonment which may be of either description, it shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple.

61. Sentence of forfeiture of property. [Rep. by the Indian Penal Code (Amendment) Act, 1921 (XVI of 1921), S. 4].

62. Forfeiture of property, in respect of offenders punishable with death transportation or imprisonment. [Rep by the Indian Penal Code (Amendment) Act, 1921 (XVI of 1921), S. 4).

63. Amount of fine. Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive.

(Enforcement of Hadd) Order (P.O. No. 4 of 1979), Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979).

64. Sentence of imprisonment for non-payment of fine. In every case an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of offence punishable with imprisonment or fine, or with fine only, in which the. offender is sentenced to a fine.

it shall be competent to the Court which sentences such offender to direct by the sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.

Notes: Sentence of imprisonment in lieu of fine should run in addition to the sentence imposed for the offence. PLD 1959 Kar. 56. Cannot run concurrently. 1991 P.Cr.L.J. 255. Imposition not mandatory. PLD 1968 Lah. 1124.

65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable. The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.

The Pakistan Penal Code, 1860

 

66. Description of imprisonment for non-payment of fine. The imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence.

67. Imprisonment for non-payment of fine, when offence punishable with fine only. If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.

68. Imprisonment to terminate on payment of fine. The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.

69. Termination of imprisonment on payment of proportional part of fine. If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.

Illustrations

A is sentenced to a fine of one hundred rupees and to four month’s imprisonment in default of payment. Here, if seventy-five rupees of the fine be paid or levied before the expiration of one month of the imprisonment, A will be discharged as soon as the first month has expired. If seventy-five rupees be paid or levied at the time of the expiration of the first month, or at any later time while A continues in imprisonment, A will be immediately discharged. If fifty rupees of the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon .as the two months are completed. If fifty rupees be paid or levied at the time of the expiration of those two months, or at any later time while continues in imprisonment, A will be immediately discharged. .

70. Fine leviable within six years, or during imprisonment: Death not to discharge property from liability. The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period: and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for this debts. .

Notes: S. 70 read with S. 386 Cr.P.C.: Section 386, Cr.P.C. relates to procedure of recovery of fine and it is a general rule relating to construction of statutes that in the absence of express provision an adjective law cannot control the provisions of substantive law. There/ore, the substantive law contained in section 70, P.P.C. is not to be affected.- 1989 SCMR 824. Sentence in more than one case-To run concurrently. 1989 SCMR 1405.

71. Limit of punishment of offence made up of several offences. Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.

Illustrations

(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.

(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.

Notes: Provisions of section 71 and 72 of Chapter 111 apply to offences fallen -under Ordinance (VI of 1979)).

Trial Court omitting to award sentences. Appellate Court can alter conviction. 1984 SCMR 866. Two different offences under separate FIRs. Sentences to run consecutively. 1989 SCMR 1405. Hurt and rioting-Offences committed in parts. 1969 P.Cr.L.J. 610.

72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which. In all cases in which judgment is given that a person is guilty of one of several- offences specified in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all.

73. Solitary confinement. Whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say:

a time not exceeding one month if the term of imprisonment shall not exceed six months;

a time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year;

a time not exceeding three months if the term of imprisonment shall exceed one year.

74. Limit of solitary confinement. ,In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods and when the imprisonment awarded shall exceed three months the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.

75. [Subs. by Penal Code (Amendment) Act 1975] Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction. Whoever, having been convicted:

(a) by a Court in Pakistan of an offence punishable under Chapter XII or Chapter XVII of this Code with [Subs. by Ord., XII of 1972.][imprisonment] of either description for a term of three years or upwards, or

(b) [Omitted by Ord. XXVII of 1981 ].

shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years.

Notes: This section cannot be made applicable to a mere attempt to commit an offence. 1968 P.Cr.L.J. 1857. It is essential for the Court when invoking this section to set out in its judgment with precision the dates and the particulars of each previous convictions which is relied upon for the purpose of applying that section. 1968 P.Cr.L.J. 396. Admission made by the accused can be safely relied upon. PLD 1961 Dacca 307.

CHAPTER IV GENERAL EXCEPTIONS

76. Act done by a person bound, or by mistake of fact believing himself bound, by law. Nothing is an offence which is done by a person who is, or who by reason of mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

Illustrations

(a)      A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law A has committed not offence.

(b)      A, an officer of a Court of Justice, being ordered by that Court to arrest Y and after due enquiry, believing Z to be Y, arrests Z. A has committed no offences.

Notes: Mistake of fact can be a defence if the same is in good faith. 1990 P.Cr.L.J. 196. No riot in progress, mere defiant attitude would not justify firing. PLD 1963 Dacca 47. Torture to convicts under orders of superior not protected. AIR 1940 Lah. 210. Act in private capacity. PLD 1959 Lah. 541.

77. Act of Judge when acting judicially. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be given to him by law.

78. Act done pursuant to the judgment or order of Court. Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.

79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.

Illustration

A sees Z commit what appears to A to be a murder. A in the exercise, to the best of his judgment, exerted in good faith of the power which the law, gives to all persons of apprehending murders in the Act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that if Z was acting in self-defence.

Notes: Obedience to an unlawful order does not exonerate or excuse a person who commits an offence as a consequence of such order. PLD 1970 Kar. 261. A mistake of law is not a defence even act committed in good faith. PLD 1962 Lah. 558. Implies bona fides in case of making allegation of Oazf. PLD 1986 FSC 10.

80. Accident in doing a lawful act. Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

Illustration

A is at work with a hatchet; the head flies off and kills a man who is standing by. Here if there was no want of proper caution on the part of A, his act is excusably and not an offence.

Notes: Death by firing. 1986 P.Cr.L.J. 626.

81. Act likely to cause harm, but done without criminal intent, and to prevent other harm. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without, any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Explanation. It is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

Illustrations

(a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down C.

(b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence.

82. Act of a child under seven years of age. Nothing is an offence which is done by a child under seven years of age.

83. Act of a child above seven and under twelve of immature understanding. Nothing is offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

Notes: A person at the age of 16 is sufficiently matured. PLD 1966 Pesh. 97.

84. Act of person of unsound Mind. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

Notes: Abnormal conduct. PLD 1963 Kar. 1034. Mental abnormality short of legal insanity not recognized. PLD 1962 S.C. 472. In doubt benefit of exception may go to accused. PLD 1962 Dacca 467.

Unsoundness of mind. .Should be established to exist at the time when the act committed. Burden on the accused. 1968 P.Cr.L.J. 187 + 1974 SCMR 214. Medical insanity and legal insanity-Not the same. 1971 DLC 771. Plea of diminished-Responsibility not recognized in Pakistan. PLD 1962 S.C. 472. Plea of insanity-Would reflect upon the prosecution case even if not raised. 1989 MLD 3968. Benefit only when accused found insane at the time of commission of offence. 1990 MLD 1953. Suffering from derangement of mind on some earlier occasion not sufficient. 1987 P.Cr.L.J. 785. Only.legal insanity can be considered. 1988 P.Cr.L.J. 522. Act in a fit of insanity-.covered. 1988 SCMR 855 + 1972 P.Cr.LJ 1041. Proof. 1986 MLD 1060. Burden to prove. 1974 SCMR 214. Crucial point when act committed. NLR 1986 SCJ 65. .

85. Act of a person incapable of judgment by reason of intoxication caused against his will. Nothing is an offence which is done by a person who at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against is will.

Notes: Drug addict Not covered. 1974 SCMR 295.

86. Offence requiring a particular intent or knowledge committed by one who is intoxicated. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless. the thing which intoxicated him was administered to him without his knowledge or against his will.

87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent. Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death, or grievous hurt; is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.

Illustrations

A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

88. Act not intended to cause death, done by consent in good faith for persons benefit. Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent whether express or implied, to suffer that harm, or to the risk of that harm.

Illustrations

A, a surgeon, knowing that a particular operation is likely to cause the death or Z who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.

89. Act done in good faith for benefit of child or insane person, by or by consent of guardian. Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind by or by consent either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person:

Provided: First. That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;

Secondly. That this exception shall not extend to the doing of anything which person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt; or the curing of any grievous disease or infirmity;

Thirdly. That this exception shall not extend to the voluntary causing of grievous hurt or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt or the curing of any grievous disease or infirmity;

Fourthly. That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

Illustration

A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon, knowing to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, inasmuch as his object was the cure of the child.

90. Consent known to be given under fear or misconception. A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person. If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child. Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

91. Exclusion of acts which are offences independently of harm caused. The exception in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause to the person given the consent, or on whose behalf the consent is given.

Illustration

Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.

92. Act done in good faith for benefit of a person without consent. Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing t4 be done with benefit:

Provisos. Firstly. That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

Secondly. That this exception shall not extend to the doing of any thing which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;

Thirdly. That this exception shall not extend to the voluntary causing of hurt, or the attempting to cause hurt for any purpose other than the preventing of death or hurt;

Fourthly. That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

Illustrations

(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A not intending Z’s death but in good faith for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

(b) Z is carried by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z and in good faith intending Z’s benefit A’s ball gives Z a mortal wound. A has committed no offence.

(c) A, surgeon, sees a child suffer an accident which is likely to prove fatal less an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.

(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s benefit. Here even if the child is killed by the fall, A has committed no offence.

Explanation. Mere pecuniary benefit is not benefit within meaning of sections 88, 89 and 92.

93. Communication made in good faith. No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.

Illustration

A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.

94. Act to which a person is compelled by threats. Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which at the time of doing it, reasonably cause the apprehension that instant death to the person will otherwise be the consequence: Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.

Explanation 1. A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of Dacoits, knowing their character, is not entitled to benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law.

Explanation 2. A person seized by a gang of Dacoits, and forced by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force the door of a house for the Dacoits to enter and plunder it, is entitled to the benefit of this exception.

Notes: Duress.. Cannot be pleaded in avoidance of malice. 1969 SCMR 344.

95. Act causing slight harm. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.

Notes: Intentional causing of ‘harm’ is excused because of its triviality. 1992 P.Cr.L.J. 1766.

Of the Right of the Private Defence

[ Notes for Ss. 96 to 106 PPC given after illustration of S, 106]96. Things done in private defence. Nothing is an offence which is done in the exercise of the right of private defence.

97. Right of private defence of the body and of property. Every person has a right, subject to the restrictions contained in section 90, to defend:

First. His own body, and the body of any other person, against any offence affecting the human body;

Secondly. The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

98. Right of private defence against the act of a person of unsound mind, etc. When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Illustrations

(a)    Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z, were sane.

(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z by attacking A. under this misconception commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

99. Acts against which there is no right of private defence. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable be law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised. The right of private defence in no. case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation -1. A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant.

Explanation 2. A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

The Pakistan Penal Code, 1860

 

100. When the right of private defence of the body extends to causing death. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:

First. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly. An assault with the intention of committing rape;

Fourthly. An assault with the intention of gratifying unnatural  lust,.

Fifthly. An assault with the intention of kidnapping or abducting;

Sixthly. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release.

101. When such right extends to causing any harm other than death. If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.

102. Commencement and continuance of the right of private defence of the body. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

103. When the right of private defence of property extends to causing death. The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm, to the wrongdoer, )f the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely;

First. Robbery;

Secondly. House-breaking by night;

Thirdly. Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property;

Fourthly. Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

104., When such right extends to causing any harm other than death. If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, the theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death.

105. Commencement and continuance of the right of private defence of property. The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered.

The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house­breaking continues.

106. Right of private defence against deadly assault when there is a risk of harm to innocent person. If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

Illustration

A is attacked by a mob who attempts to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

Notes on Sections 96 to 106: Person beaten on the suspicion of thief. Can exercise of right of self-defence. PLD 1966 S.C. 432. Exercise of right of self-defence of body or property is subject to restrictions contained in S. 99. PLD 1971 S.C. 720. Person illegally detained by Police. Escape, Plea of self-defence not available to police. PLD 1960 S.C. 344. Free fight. Right of self-defence not available. PLD 1962 S.C. 502. 1970 P.Cr.L.J. 1257 + 1971 P.Cr.L.J. 753. Cross report. Cannot be considered as a plea of self-defence. PLD 1967 S.C. 356. Disproportion between the injuries caused and received by accused party. PLD 1961 S.C. 200. No evidence which of the party was aggressor. Offence under S. 300 Excep. 4. PLD 1957 S.C. (Ind.) 381. Defence failing to establish his case. Can claim benefit of doubt. 1983 SCMR 310. Accused exceeding his right of defence 1983 SCMR 796; 1983 SCMR 135. Taking back possession by force. 1974 SCMR 22.

Trespasser: Can exercise right of self-defence to cause any harm other than death. PLD 1970 S.C. 212. Unless first brings to an end his own act of trespass PLD 1983 S.C. 135. Nobody has a right to dispossess by force the trespasser who is in settled position of land. PLD 1965 Kar. 637. However an owner can re-enter and reinstate himself provided he does not use more force than is necessary. PLD 1961 Lah. 415:

Deceased trying to outrage modesty of the accused girl. 1984 SCMR 646. Accused not proved to be aggressor. Right of self-defence not available. PLD 1966 Lah. 8. No evidence to show as to who started attack. Accused given benefit of doubt. .PLD 1969 Pesh. 195. Accused apprehending if other person not rescued would suffer grievous hurt. Right of self-defence given. 1972 P.Cr.L.J. 17,1.

Extent of right of private defence: The law relating to self-defence has made the victim of such an assault the Judge of his own peril and permitted him to repel the attack even to the taking of the life of his assailant so the Courts are to judge him by placing themselves in the same position in which he was placed. PLD 1972 Lah. 596. If the harm caused to the offending party is out of all proportions to the harm which may be received or which is threatened by the other party, and which gives occasion for the exercise of that right of self-defence will stand completely negatived. PLD 1971 S.C. 720 = Law Notes 1971 S. C. 565.

It is no offence to arm oneself in anticipation of an attack. PLD 1961 Lah… 415.

Criminal trespass causing at least grievous hurt. Not in excess. 1969 P.Cr.L.J. 533. This right is available only if it is rooted in good faith. PLD 1971 Law Notes 565. Person cannot be expected to weigh his blows in golden scales while exercising his right of private defence. 1968 P.Cr.L.J. 1022.

Plea of self-defence if not raised at trial can be entertained in appeal if gets reasonable support from the prosecution evidence. PLD 1971 Pesh. 7.

Right of private defence continues so long as apprehension of hurt or grievous hurt continues. PLD 1964 Lah. 677. Right of private defence or property commences when an act which is an offence of theft, robbery, mischief or criminal trespass is committed or an attempt to commit such an offence is made. However, this right ceases when thief has reiterated with property. PLD 1964 Kar. 412.

Latest Law:——

Notes: S. 96: Accused sole judge of danger. 1989 MLD 4025. Ocular evidence in conflict with medical evidence. 1989 ALD 13(1). Two versions in juxtaposition. 1989 MLD 4025. Impending danger must be present, real or apparent. 1989 MLD 1083. Attempt by son to save his father. 1990 ALD 70(2) = NLR 1990 Cr. 614. Equal number of injuries suffered by both the parties. 1987 P.Cr.L.J. 1169. Evidence standing unrebutted. 1987 SCMR 293. Raising of plea not necessary. 1992 P.Cr.L.J. 1219.

S. 97: Essence-to ascertain who is aggressor. 1987 P.Cr.L.J. 2164. Burden to prove on the person who sets the plea. PLD 1962 Kar. 866.

S. 99: Essence-to ascertain who is aggressor. 1987 P.Cr.L.J. 2164. Harm caused out of all proportions. 1990 P.Cr.L.J. 419. Principles stated. 1990 MLD 88 + PLD 1963 S.C. 740 + 1976 SCMR 155. Unarmed trespasser. 1970 SCMR (D) 60.

S. 100: A probable plea-Benefit to go to accused. 1989 P.Cr.L.J. 504. Defence version appearing more plausible. 1989 P.Cr.L.J. 2028. Venue of crime accused’s own land. 1989 SCMR 1176. Question of self defence arises when one party is in peaceful possession. 1990 P.Cr.L.J. 1132. Free fight. 1990 MLD 1376. Right after receiving head injury. 1990 P.Cr.L.J. 540. In case of sodomist attempt. 1990 MLD 249 + 1989 P.Cr.L.J. 504. + PLD 1978 S.C. 200. Evidence standing unrebutted. 1987 SCMR 293. Deceased seen in a compromising position. 1986 P.Cr.L.J. 493. Right of defence continues till apprehension of danger to life exists. 1986 P.Cr.L.J. 2215. Imminent threat. PLD 1986 S.C. 335.

S.101: Attempt to apprehend amounts to attempt to confine accused wrongfully. 1986 P.Cr.L.J. 2833.

S. 103: Accused stopped after giving single injury. 1987 P.Cr.L.J. 601.

CHAPTER V  OF ABETMENT

107. Abetment of a thing. A person abets the doing of a thing, who:—

First. Instigates any person to do that thing; or

Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration

A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z; wilfully represent to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Notes: Abetment is defined under section 107, P.P.C. to the effect that a person would be said to have abetted firstly that he instigates any person to do that thing or secondly engages with one or more other persons in any conspiracy for doing that thing and `thirdly he intentionally aids, by any act or illegal omission in doing that thing. In order to prove the charge under section 109, P.P.C., it is the duty of the prosecution to produce evidence of conclusive nature in order to prove the ingredients of one or two of these mentioned in the definition of abetment. 1989 P.Cr.L.J. 380 + 1987 P.Cr.L.J. 226 + PLD 1986 Kar. 417. Element of criminality must clearly be spell out. 1992 P.Cr.L.J. 58. Accomplice–4 witness not concerned with commission of crime-Not an accomplice. PLD 1986 Lah. 418. Person soliciting cooperation without disclosing designs. PLD 1972 Lah. 37.

Satisfaction of the Court: Court can be satisfied on the information supplied by the applicant 1969 P.Cr.LJ 585.

Abettor: Whether or not a lalkara would constitute abetment entails appreciation of entire evidence. 1968 P.Cr.L.J. 729. Persons seeing film illegally exhibited-Not abettor. PLD 1990 Lah. 499.

108. Abettor. A person abets an offence, who abets either the commission of an offence, or the Commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of abettor.

Explanation 1. The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2. To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the, offence should be caused.

Illustrations

(a)    A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder. .

(b)    A instigates B to murder D. B, in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder.

Explanation 3. It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention of knowledge.

Illustrations

(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offences, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether that act be committed or not is guilty of abetting an offence.

(b) A, with the intention of murdering Z, instigates B, a child under seven years ago, to do an act which causes Z’s death. B in consequence of the abetment, does the act in the absence of A and thereby, causes Z’s death. Here, though B was not capable by law of committing an offence. A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death.

(c) A instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that offence.

(d) A intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession, in good faith, believing it to be A’s property. B, acting under his misconception, does not take dishonesty, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.

Explanation 4. The abetment of an offence being an offence the abetment of such an abetment is also an offence.

Illustration

A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and as A instigated B commit the offence, A is also liable to the same punishment.

Explanation 5. It is not necessary to the commission of the offences of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Illustration

A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person administer the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.

Notes: Act aided by person not criminal offence. 1970 P.CrL.J. 776. Right of private defence available. 22 DLR 69.

108-A. Abetment in Pakistan of offences outside it. A person abets an offence within the meaning of this Code, who, in Pakistan, abets the commission of any act without and beyond Pakistan which would constitute an offence committed in Pakistan.

Illustration

A, in Pakistan, instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of abetting murder.

109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment-Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by the Code, for the punishment of such abetment, be punished with the punishment provided for the offence.

“Provided that, except in case of ikrah-i-Tam ( ), the abettor of an offence referred to in Chapter XVI shall be liable to punishment to ta’zir specified for such offence including death “.[ Added by Cr. Law (Third Amendment) Ordi. X of 1992 PLD 1992 Cent. St. 262. Reinforced by Ordi. XVII of 1992. PLD 1993 Cent. St. 70.]

Explanation. An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Illustration

(a)     A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official function. B accepts the bribe. A has abetted the offence defined in section 161.

(b)    A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence, and is liable to the same punishments as B.

(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to Bin order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A’s absence and thereby causes Z’s death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder.

Notes: No specific role attributed. Mere expression of opinion not sufficient. PLD 1983 FSC 165. Helper or abettor liable in the same manner. PLD 1984 FSC 55. The offence of abetment is substantive offence and not merely an appendage of the principal offence. PLD 1968 Kar. 853. To sustain the charge of abetment of an offence, it is necessary that there must be some evidence of an avert action or omission so as to suggest a pre-concert or a common design to commit a particular offence. PLD 1970 Kar. 15. It cannot be laid down as a general rule that in no case can an abettor be convicted if the principal accused is acquitted. PLD 1966 Dacca 269. Section 109 P.P.C. is not applicable for the offences under the Cantonment Act. PLD 1963 Lah. 703. Sections 109 & 111.-Distinction. Section 109, P.P.C. from its language contemplates the abetted act to have been completed, i.e. if a murder instigated and the victim is killed only then specific provisions in this behalf whereas section 111 deals with the different acts having been committed as a probable consequence of abetment. PLD 1979 S.C. 53. Liability of directors. 1981 SCMR 573. Mens rea-Essential to substantiate charge. PLD 1990 Quetta 51. Concealment of injuries suffered by accused. 1986 P.Cr.L.J. 646. Common intention and abetment, PLD 1986 Quetta 26 + PLD 1971 Lah. 959.

Repugnancy to Injunction of Islam: Provision of section 109, P.P.C. so far as it makes an abettor in case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment is repugnant to Injunctions of Islam. PLD 1989 S.C. 633.

Bail: Role of bodily lifting–No injury attributed-Bail granted. 1987 P.Cr.L.J. 965.

110. Punishment of abetment if person abetted does act with different intention from that of abettor. Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other.

Notes: Habitual must be taken to mean repeatedly or persistently. PLD 1971 Kar. 473. Statement of police officer. An opinion not admissible. PLD 1971 Kar. 473. Security proceedings. Incumbent on the Magistrate to consider and weigh the evidence produced. 1970 P.Cr.L.J. 1269. An order passed on the consent of the person considered against without any evidence to support it. Not sustainable. 1972 P.Cr.L.J. 617. Allegation vague in nature. 1986 P.Cr.L.J. 2565.

111. Liability of abettor when one act abetted and different act done. When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it:

Proviso. Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.

Illustrations

(a) A, instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z. Here if the child was acting under the influence of A’s instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of Y.

(b)   A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft of property there. A, tough guilty of abetting the burning of the house is not guilty of abetting the theft; for the theft was a distinct act and not a probable consequence of the burning.

(c) A instigates B and C to break into an inhabited house at mid-night for the purpose of robbery, and provides them with arms for that purpose. B and C break into the house, and being resisted by 1, one of the inmates, murder 1. Here, if that murder was the probable consequence of the abetment A is liable to the punishment provided for murder.

Notes: Section 111, P.P.C. lays down that when an act is abetted and a different act is done, the abettor is liable for the act done, “in the same manner and to the same extent as if he had directly abetted it”. This section, is, however, subject to the proviso that the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. PLD 1979 S.C. 741. One person aimed at but killing another by mistake. Act probable consequence. Can fall under S. 111, PPC. PLD 1979 S.C. 53. (p. 347)

112. Abettor when liable to cumulative punishment for act abetted and for act done. If the act for which the abettor is liable under the last preceding section is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offences.

Illustration

A instigates B to resist by force a distress made by a servant. B, in consequence, resists that distress. In offering the resistance. B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offence or resisting the distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment for both these offences and if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress, A will also be liable to punishment for each of the offences.

113. Liability of abettor for an effect caused by the act abetted different from that intended by the abettor. When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, cause a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he know that the act abetted was likely to cause that effect.

Illustration

A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes hurt to Z. Z dies in consequence. Here if A new that the grievous hurt abetted was likely to cause death. A is liable to be punished with the punishment provided for murder.

114. Abettor present when offence is committed. Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

Notes: Shouting of lalkara An overt act. PLD 1967 S.C. 340. No direct evidence. 1987 MLD 947.

115. Abetment of offence punishable with death or imprisonment for life if offence not committed-If act causing harm be done in consequence. Whoever abets the commission of an offence punishable with death or’ [Subs. by Ord. XII of 1972] (imprisonment for life), shall, if that offence be not committed in consequence of the abetment and no express provision is made by this Code for the punishment of such abetment be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.

Illustration

A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or imprisonment for life. Therefore A is liable to imprisonment for a term which may extend to seven years and also to a fine; and, if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine.

116. Abetment of offence punishable with imprisonment-if offence be not committed. Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provisions is made by the Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for the offence; or with such fine as is provided for that offence, or with both;

and if abettor or person abetted be a public servant whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.

Illustrations

(a)     A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official functions. B refuses to accept the bribe. A is punishable under this section.

(b)     A instigates B to give false evidence. Here, if B does not give false evidence. A has nevertheless committed the offence defined in this section, and is punishable accordingly.

(c) A, a police-officer, whose duty it is to prevent robbery, abets the commission- of robbery. Here, though the robbery be not committed. A is liable to one-half of the longest term of imprisonment provided for that offence, and also to fine.

(d) B, abets the commission of robbery by A, a police-officer, whose duty it is to prevent that offence. Here though the robbery be not committed, B is liable to one-half of the longest term of imprisonment provided for the offence of robbery, and also to fine.

Notes: Act in instigating the officer to accept offer to defraud Government-Abetment. 1972 SCMR 255. Abetment of an offence under Dangerous Drug Act, 1930. PLD 1989 Kar. 572.

117. Abetting commission .of offence by the public or by more than ten persons. Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Illustration

A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in a procession. A has committed the offence defined in this section.

118. Concealing design to commit offence punishable with death or imprisonment for life-if offence be committed; if offence be not committed. Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death of [ Subs. by Ord. XII of 1972][imprisonment] for life, voluntarily conceals, by any act or illegal omission, the existence of an design to commit such offence or makes any representation which he knows to be false respecting such design,  shall, if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years, or, if the offence, be not committed, with imprisonment of either description for a term which may extend to three years; and in either case shall also be liable to fine. Illustration

Illustrations

A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity is about to be committed at C, a place in an opposite direction, and thereby misleads the Magistrate with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design. A is punishable under this section.

119. Public servant concealing design to commit offence which it is his duty to prevent-if offence be committed. Whoever, being a public servant intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent.

voluntarily conceals, by an act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, shall, if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both;

if offence be punishable with death, etc.; or, if the offence be punishable with death or [Subs. by Ord. XII of 1972.](imprisonment for life) with imprisonment of either description for a term which may extend to ten years;

if offence be not committed, or, if the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence, or with both. Illustration

Illustrations

A, an officer of police, being legally bound to give information of all designs to commit- robbery which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to facilitate the commission of that offence. Here A has by an illegal omission concealed the existence of B’s design, and is liable to punishment according to the provision of this section.

120. Concealing design to commit offence punishable with imprisonment. Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, if offence be committed; if offence be not committed. shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.

CHAPTER V-A CRIMINAL CONSPIRACY

120A. Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done,

(1) an illegal act, or

(2) and act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation. It is immaterial whether the illegal act is, ultimate object of such agreement, or is merely incidental to that object.

Notes: Scope-The most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. 1989 PSC 533. A secret and surreptitious act. 1992 P.Cr.L.J. 9. Conviction by Military Court-Does not imply moral turpitude. PLD 1989 Pesh. 112. Standard differs from people to people and from area to area. PLD 1989 Pesh. 112. Imply revolt against social order against form of Government, against Government established by law, against superior officers of army or against the State. 1986 CLC 1464.

A conspiracy consists not merely in the intention of two or more, but in an agreement of two or more to do an unlawful act, or to-do a lawful act by unlawful means. PLD 1979 S.C. 53 (p. 325).

Conspiracy between husband and wife. Does not warrant prosecution. PLD 1957 PC 92. Mode of proof–Evidence should not be considered in isolation. PLD 1979 S.C. 53. Proof-Matter of inference from the sequence of circumstances. PLD 1967 Lah. 1190 + PLD 1962 Lah. 939. Illegal agreement can be inferred from the acts of the accused alone. PLD 1966 Dacca 305.

One of the accused held guilty while remaining acquitted-Illegal. PLD 1956 S.C. (Ind.) 215. Relevant time cannot be any other but when the conspirators engage themselves to do a particular thing. PLD 1979 S.C. 53. Very fact of conspiracy constitute offence. PLD 1957 S.C. (Ind) 68. Chance witness-Evidence not reliable. 1969 SCMR 620 + 1969 P.Cr.L.J. 1193. Specific instance proved. PLD 1957 S.C. (Ind.) 289.

120B. Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death (imprisonment for life) or rigorous imprisonment for a term of two years, or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence:

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Notes: Compliance with superior’s direction-No defence. 1989 PSC 995. Offence not actually committed., 1989 PSC 533. Summoning of accused. 1986 P.Cr.L.J. 599. Acquittal-Revision. 1986 P.Cr.L.J. 877. Mere knowledge, acquiescence or approval of an act without cooperation is not sufficient. 1992 P.Cr.L.J. 2086. Positive proof-Not possible. 1992 P.Cr.L.J. 242. Bail-No witness named in FIR. 1987 P.Cr.L.J. 953.

CHAPTER VI OF OFFENCES AGAINST THE STATE

121. Waging or attempt to wage war or abetting waging of war against Pakistan. Whoever wages war against Pakistan or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Illustration

A joins an insurrection against Pakistan. A has committed the offence defined in this section.

121A. Conspiracy to commit offences punishable by section 121. Whoever within or without Pakistan conspires to commit any of the offences punishable by section 121, or to deprive Pakistan of the sovereignty of her territories or of any part thereof, conspires to overawe, by means of criminal force or the show of criminal force the Central Government or any Provincial Government, shall be punished with imprisonment for life or any shorter term, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.

Explanation. To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.

Notes: Conviction by Military Courts-Not conclusive. 1986 CLC 1464. Procedure under section 196 Cr.P.C. to be followed. 1990 MLD 1087.

Moral turpitude-Implies depravity and wickedness of character and disposition of the person charged with particular conduct. The test is (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general? (2) Whether the motive which led to the act was a base one? and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. PLD 1989 Pesh. 112 + 1984 SCMR 1172.

122. Collecting arms, etc., with intention of waging war against Pakistan. Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against Pakistan, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.

The Pakistan Penal Code, 1860

 

123. Concealing with intent to facilitate design to wage war. Whoever, by any act, or by any illegal omission conceals the existence of a design to wage war against Pakistan, intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

123A. Condemnation of the creation of the State and advocacy of abolition of its sovereignty. (1) Whoever, within or without Pakistan, with intent to influence or knowing it to be likely that he will influence, any person or the whole or any section of the public, in a manner likely to be prejudicial to the safety [Inst. by P.P.C. Amdt.) Act II of 1992 w.e.f. 2.3.1992][or ideology] of Pakistan, or to endanger the sovereignty of Pakistan in respect of all or any of the territories lying within its borders, shall by words, spoken or written or by signs or visible representation [Inst. by P.P.C. Amdt.' Act II of 1992 wel 2.3.1992.][abuse Pakistan] or condemn the creation of Pakistan by virtue of the partition of India which was effected on the fifteen day of August, 1947 or Advocate the curtailment or abolition of the sovereignty of Pakistan in respect of all or any of the territories laying within its borders, whether by amalgamation with the territories of neighbouring States or otherwise, shall be punished with rigorous imprisonment which may extend to ten years, and shall also be liable to fine.

(2) Notwithstanding anything contained in any other law for the time being in force, when any person is proceeded against under this section, it shall be lawful for any Court before which he may be produced in the course of the investigation or trial, to make such order as it may think fit in respect of his movements, of his association or communication with other persons, and of his activities in regard to dissemination of news, propagation of opinions, until such time as the case is finally decided.

(3) Any Court which is a Court of appeal or of revision in relation to the Court mentioned in sub-section (2) may also make an order under that sub-section.

Notes: Anti-national activities-Court should not give play to imagination. 1981 SCMR 341. Offence under Ss. 123-A and 124A P.P.C. and S. 13 of Act, 1974. Case triable exclusively by a Special Court. 1987 MLD 1434.

[Inserted-by Ordinance XLIII of 1984.][123B. Defiling or unauthorisedly removing the National Flag of Pakistan from Government building, etc.: Whoever deliberately defiles [Inst. by Act 11 of 1992. PLJ 1992 Fed. St. 195 = PLD 1992 Cent. St. 213.][or puts on fire] the National Flag of Pakistan, or unauthorisedly removes it from any building, premises, vehicle or other property of Government, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”.]

123-B. Defiling or unauthorized removing the National Flag of Pakistan from Government building, etc.—Whoever deliberately defiles or puts on fire the National Flag of Pakistan or unauthorized removes it from any building, premises, vehicle or other property of Government shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

COMMENTS

The object of this section is to save the National Flag of Pakistan from deliberately defiling or putting it on fire or unauthorisedly removing it from any building etc.

124. Assaulting President, Governor, etc. with intent to compel or restrain the exercise of any lawful power. Whoever, with the intention of inducing or compelling the President of Pakistan or the Governor of any Province, to exercise or refrain from exercising in any manner any of the lawful powers of the President, or Governor, assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal force or the show of criminal force, or attempts so to overawe, the President, or Governor, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

124-A. Sedition. Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Central or Provincial Government established by law, shall be punished with [imprisonment for life] to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Notes: The gist of offence lies in bringing or attempting into hatred or contempt or in exciting or attempting to excite disaffection towards the Government established by law. Gravity of offence to be determined by the effect which the offending statement is calculated to produce in the public mind. PLD 1967 SC 78. Joint extra judicial confession or a joint recovery not admissible. 1998 P.Cr.L.J. 112.

Bail-Schedule offence-Special Law i.e. Suppression of Terrorists Activities (Special Courts) Act, 1975 takes precedence over S. 497 Cr.P.C. 1987 MLD 1437. Provision of S. 497 Cr.P.C. to be read subject to restrictions imposed by Act XV of 1975. 1987 MLD 2181.

125. Waging war against any [Asiatic][ Word [Asiatic] omitted by Act II of 1988. PLD 1988 Cent. St. 18.] Power in alliance with Pakistan. Whoever wages war against the Government of any [Asiatic][ Word [Asiatic] omitted by Act 11 of 1988. PLD 1988 Cent. St. 18.’] Power in alliance or at peace with Pakistan or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added , or with fine.

126. Committing depredation on territories of Power at peace with Pakistan. Whoever commits depredation, or marks preparations to commit depredation, on the territories of any Power in alliance or at peace with Pakistan, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of any property used or intended to be used in committing such depredation, or acquired by such depredation.

127. Receiving property taken by war or depredation mentioned in sections 125 and 126. Whoever receives any property knowing the same to have been taken into the commission of any of the offences mentioned in sections 125 and 126, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of the property so received.

128: Public servant voluntarily allowing prisoner of State or war to escape. Whoever, being a public-servant and having the custody of any State prisoner or prisoner-of-war, voluntarily allows such prisoner to escape from any place in which such prisoner is confined, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

129. Public servant negligently suffering such prisoner to “escape. Whoever, being a public servant and having the custody of any State prisoner or prisoner-of-­war, negligently suffers such prisoner to escape from any place of confinement in which such prisoner is confined, shall be punished with simple imprisonment for a term which may extend to three years, and shall also be liable to fine.

130. Aiding escape of, rescuing or harbouring such prisoner. Whoever knowingly aides or assists any State prisoner or prisoner-of-war in escaping from lawful custody, or rescues or attempts to rescue any such prisoner, or harbours or conceals any such prisoner who has escaped from lawful custody, or offers or attempts to offer any resistance to the recapture of such prisoner shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation. A State prisoner or prisoner-of-war, who is permitted to be at large on his parole within certain limits in Pakistan is said to escape from lawful custody if he goes beyond the limits within which he is allowed to be at large.

CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR FORCE

131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty. Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, or attempts to seduce any such officer, soldier, sailor or airman from his allegiance or his duty, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten year, and shall also be liable to fine.

Explanation. [Subs. by Ord. XXVII of 1981.][In this section the words "officer", "soldier", sailor, or "airman" include any person subject to the Pakistan Army Act, 1952 (XXXIX of 1952), or Pakistan Navy Ordinance, 1961 (XXXV of 1961) or the Pakistan Air Force Act, 1953 as the case may be".)

132. Abetment of mutiny, if mutiny is committed in consequence thereof. Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of ether description for a term which may extend to ten years, and shall also be liable to fine.

133. Abetment of assault by soldier, sailor or airman on his superior officer, when in execution of his office. Whoever abets an assault by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, on any superior officer being in the execution of his office, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

134. Abetment of such assault, if the assault is committed. Whoever abets an assault by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, on any superior officer being in the execution of his office, shall, if such assault be committed in consequence of that abetment be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

135. Abetment of desertion of soldier, sailor or airman. Whoever abets the desertion of any officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, shall be punished with imprisonment or either description for a term which may extend to two years, or with fine, or with both.

136. Harbouring deserter. Whoever, except as hereinafter excepted, knowing or having reason to believe that an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, has deserted, humours such officer, soldier, sailor or airman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Exception. This provision does not extend to the case in which the harbour is given by a wife to the husband.

137. Deserter concealed on board merchant vessel through negligence of master. The master or person incharge of a merchant vessel, on board of which any deserter from the Army, Navy or Air Force of Pakistan is concealed, shall, though ignorant of such concealment, be liable to a penalty not exceeding five hundred rupees, if he might are known of such concealment but for some neglect of his duty as such master or person in charge, or but for some want of discipline on board of the vessel.

138. Abetment of act of insubordination by soldier, sailor or airman. Whoever abets what he knows to be an act of insubordination by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, shall, if such act of insubordination be committed in consequence of that abetment, be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

138-A. Application of foregoing sections to the Indian Marine Service. [Rep. by the Amending Act, 1934 ()00(1/ of 1 934), S. 2, and Sch. )

139. [Subs. by Ord. XXVII of 1981.][139. Persons subject to certain Acts. No person subject to the Pakistan Army Act, 1952 (XXXIX of 1952) the Pakistan Air Force Act, 1953 (VI of 1953) or the Pakistan Navy Ordinance, 1961 (XXXV of 1961) is subject to punishment under this Code for any of the offences defined in this Chapter.

140. Wearing garb or carrying token used by soldier, sailor or airman. Whoever, not being a soldier, sailor or airman in the Military, Naval or Air Service of Pakistan wears any garb or carries any token resembling any garb or token used by such a soldier, sailor or airman with the intention that it may be believed that he is such a soldier, sailor or airman, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILITY

141. Unlawful assembly. An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is:

First. To overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or

Second. To resist the execution of any law, or of any legal process; or

Third. To commit any mischief or criminal trespass, or other offence, or

Fourth. By means of criminal force, or show of criminal force to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.

Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

Notes: Accused should not only be member of an unlawful assembly but use criminal force. 1971 P.Cr.L.J. 528. Prosecution to prove that all the persons had done or been committing some overt act in prosecution of common object of unlawful assembly. Mere presence not sufficient. PLD 1956 S.C. (Ind.) 249. Assembly may become unlawful but it will have to prove a circumstance applicable to all the persons assembled which influenced them. PLD 1963 S.C. 109. Section not applicable where a person defends his lawful possession. PLD 1964 Dacca 480. Application. 1971 P.Cr.L.J. 528. Trial of strength. 1968 P.Cr.L.J. 300. No doubt common object can be formed at the spur of the moment, liability of each member depends on the intention or knowledge of the other members. PLD 1968 S.C 372. Explanation-In assembly may become unlawful at some stage after the time of assembly. PLD 1963 S. C. 109.

142. Being member of unlawful assembly. Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.

143. Punishment. Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

144. Joining unlawful assembly armed with deadly weapon. Whoever being armed with any deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Notes: The charge under section 144 of the Penal Code should state the common object. 1968 P.Cr.L.J. 972 = 20 DLR 428 = 1969 P.Cr.L.J. 359.

145. Joining or continuing in unlawful assembly, knowing that it has been commanded to disperse. Whoever joins or continues in unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Notes: The essential ingredient of offences under sections 151 and 145, Penal Code is that the accused is lawfully commanded to disperse after he joins or continues in an assembly of five or more persons or in an unlawful assembly as the case may be. If person was not lawfully commanded to disperse he does not come within the mischief of section 151 or section 145. 1969 P.Cr.L.J. 373; 20 DLR 461.

146. Rioting. Whenever force or violence is used by an unlawful assembly, 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.

Notes: Person never in possession-Attempt to take possession by force-Rioting. PLD 1975 S. C. 556.

147. Punishment for rioting. 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.

Notes: Common object: Can be formed at the spur of moment. PLD 1959 S.C. 251. No overt act attributed-Mere identification in the crowd not sufficient. PLD 1968 S.C. 372. Liability of each member depends on the intention or knowledge of the other member. PLD 1968 S.C. 372. Common object of an unlawful assembly causing hurt, hurt was caused, separate sentences under Ss. 147 & 324 P.P.C. can be passed. 1971 DLC 276. Non-examination of complainant. 1968 SCMR 1372. Accusation not put to accused. 1969 P.Cr.L.J. 636. Hurt caused in rioting. 1969 P.Cr.L.J. 610. Members may be convicted of lessor offence. PLD 1968 S.C. 372 + 1968 P.Cr.L.J. 645. Rioting for possession. 1968 P.Cr.L.J. 76. Complaint under Ss. 323, 504 & 147, P.P.C.--Exclusively triable by Conciliation Court. 1987 P.Cr.L.J. 351. Acts of accused unfair to labour practices as defined in S. 16(1)(d) IRO, 1969-Proceedings before criminal Court, abuse of process of Court. 1987 PLC 865. Question of title. 1971 P.Cr.L.J. 275. Order of release not an order of acquittal-Case can be reopened. 1986 P.Cr.L.J. 1812.

148. Rioting armed with deadly weapon. Whoever is guilty of rioting, being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Notes: Two accused acquitted-Conviction of rest bad. 1969 SCMR 537. Accused not member of unlawful assembly. 1971 P.Cr.L.J. 528. Delay in lodging FIR. PLD 1971 Dacca 254. No part assigned. 1970 P.Cr.L.J. 1312. Holding of conspiracy in presence of stranger-Unbelievable. 1989 P.Cr.L.J. 2299. Holding of possession of allotted land. Right rr private defence available. 1987 P.Cr.L.J. 1518 + Law Notes 1971 Lah. 213. Ss. 295-A, 298, 500 & 506/149-Pendency of litigation-Complaint against entire family for harassing-Quashed. 1987 P.Cr.L.J. 1049. Compromise--Should be honoured to end litigation. 1987 P.Cr.L.J. 568.

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Notes: Construction: Section 149 is divided into two parts. An accused who is found to be a member of an unlawful assembly can be convicted of a lesser offence if under the second part of that section it is clear that he was aware that such a lesser offence was likely to be committed in prosecution of the common object although some members of the assembly may have travelled beyond that object and committed a graver offence. PLD 1968 S.C. 372; 1969 SCMR 419; PLD 1971 Kar. 68; 1971 P.Cr.L.J. 297. Act of trapping-Whole body of the accused acted jointly and with a common purpose. PLD 1962 S.C. 450. Charge for an offence committed as a member of an unlawful assembly is different from a charge for an offence committed as a member of such assembly. PLD 1956 S.C. (Ind) 21. Sporadic assaults-Section 149 not applicable 1970 SCMR 780. Section 149 creates a specific offence. A person cannot be punished unless the section is included in the charge. PLD 1969 Lah. 966. Section does not create a new offence but provides for various liability for offences committed by others. 1968 P.Cr.L.J. 263. Know to be likely to be committed. 1987 SCMR 1015 + 1969 SCMR 419.

150. Hiring, or conniving at hiring, of persons to join unlawful assembly.

Whoever hires or engages, or employs, or promotes, or connives at the hiring, engagement or employment of any person to join or become a member of any unlawful assembly, shall be punishable as a member of such unlawful assembly, and for any offence which may be committed by any such person as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly, or himself had committed such offence.

151. Knowingly, joining or continuing in assembly of five or more persons after it has been commanded to disperse. Whoever knowingly joins or continues in any assembly of five or more persons likely to cause a disturbance of the public peace, after such assembly has been lawfully commanded to disperse, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Explanation. If the assembly is an unlawful assembly within the meaning of section 141, the offender will be punishable under section 145.

152. Assaulting or obstructing public servant when suppressing riot, etc. Whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any public servant in the discharge of his duty as such public servant, in endeavouring to disperse an unlawful assembly, or to suppress a rot or affray, or uses, or threatens, or attempts to use criminal force to such public servant, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.

153. Wantonly giving provocation with intent to cause riot-if rioting be committed, if not committed. Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine or with both.

[S. 153-A was substituted by Act VI of 1973.]153-A. Promoting enmity between different groups, etc. Whoever:

(a) by words, either spoken or written, or by signs, or by visible representations, or otherwise, promotes or incites, or attempts to promote or incite on grounds of religion, race, place of birth, residence, language, caste or community or any other grounds whatsoever disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities; or

(b) commits, or incites any other person to commit, any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or casts or communities or any groups of person identifiable as such on any ground whatsoever and which disturbs or is likely to disturb public tranquility; or

(c) organizes, or incites any other person to organize, any exercise, movement, drill or other similar activity intending that the participants in any such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in any such activity will use or be trained to use criminal force or violence, or participates, or incites any other person to participate, in any such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in any such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community or any group or person identifiable as such on any ground whatsoever and any such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community shall be punished with imprisonment for a term which may extend to five years and with fine.

Explanation 1. It does not amount to an offence within the meaning of this section to point out, without malicious intention and with an honest view to their removal, matters which are producing, or have a tendency to produce, feelings of enmity or hatred between different religious, racial, languages or regional groups or castes or communities.

Notes: Intention must be to outrage the religious feelings of a class of people. Feelings of Muslims in general hurt. Section not applicable. PLD 1962 Lah. 850. Different people does not mean different classes, within meanings of this Section. PLD 1961 Kar. 129.

153-B. Inducing students, etc, to take part in political activity. [Ins. by Ord, LXX of 1962.] Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, induces or attempts to induce any student, or any class of students, or any institution interested in or connected with students, to take part in any political activity [which disturbs or under-mines, or is likely to disturb or undermine the public order][ Words "which disturbs or undermines, or is likely to disturb or undermine the Public order" were inserted by Act XX of 1965.] shall be punished with imprisonment which may extend to two years or with fine or with both.

[Added by Ordi. LXXVI of 1962.][Explanation. In this section "political activity" includes activities like processions, strikes, demonstrations and, meetings, arranged for a political purpose.]

154. Owner or occupier of land on which an unlawful assembly is held. Whenever any unlawful assembly or riot takes place, the owner or occupier of the land upon which such unlawful assembly is held, or such riot is committed, and any person having or claiming an interest in such land, shall be punishable with fine riot exceeding one thousand rupees, if he or his agent or manager, knowing that such offence is being or has been committed, or having reason to believe it is likely to be committed, do not give the earliest notice thereof in his or their power to the principal officer at the nearest police-station, and do not, in the case of his or their having reason to believe that it was about to be ‘committed, use all lawful means in his or their power to prevent it and, in the event of its taking place, do not use all lawful means in his or their power to disperse or suppress the riot or unlawful assembly.

155. Liability of person for whose benefit riot is committed. Whenever a riot is committed for the benefit or on behalf of any person who is the owner occupier of any land respecting which such riot takes place or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit therefrom, such person shall be punishable with fine, if he or his agent or manager, having reason to believe that such riot was likely to be committed or that the unlawful assembly by which such riot was committed was likely to be held, shall not respectively use all lawful means in his or their power to prevent such assembly or riot from taking place, and for suppressing and dispersing the same.

156. Liability of agent of owner or occupier for whose benefit riot is committed. Whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land respecting which such riot takes place, or who claims any intrust in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit therefrom, the agent or manager of such person shall be punishable with fine, if such agent or manager, having reason to believe that such riot was likely to be committed, or that the unlawful assembly by which such riot was committed was likely to be held, shall not use all lawful means in the power to prevent such riot or assembly from taking place and for suppressing and dispersing the same.

157. Harbouring persons hired for an unlawful assembly. Whoever harbours, receives or assembles, in any house or premises in his occupation or charge, or under his control any persons, knowing that such persons have been hired, engaged or employed, or are about to be hired, engaged or employed, to join or become members of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

158. Being hired to take part in unlawful assembly or riot: or to go armed. Whoever is engaged or hired, or offers or attempts to be hired or engaged, to do or assist in a doing ‘any of the acts specified in section 141, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both, and whoever, being so engaged or hired as aforesaid, goes armed, or engages or offers to go armed, with any deadly weapon or with anything which used as a weapon of offence is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

159. Affray. When two or more persons, by fighting in a public place, disturb the public peace, they are said to “commit an affray”.

160. Punishment for committing affray. Whoever commits an affray, shall be punished, with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both.

The Pakistan Penal Code, 1860

 

CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS

161. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Explanation. “Expecting to be a public servant.” If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating but he is not guilty of the offence defined in this section.

“Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.

“Legal remuneration.” The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the authority by which is employed, to accept.

“A motive or reward for doing.” A person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done comes within these words.

“Public Servant.” .In this section and in sections 162, 163, 164, 165, 166, 167, 168, 169 and 409, ‘public servant’ includes an employee of any corporation or other body or organization sets up, controlled or administered by, or under the authority of the Federal Government.[ Added by Act XIII of 1977.]

Illustrations

(a)    A, a munsif, obtains from Z, a banker, a situation in Z’s bank for A’s brother, as a reward to A for deciding a cause in favour of Z. A has committed the offence defined in this section.

(b) A, holding the offence of Counsel at the court of a foreign Power, accepts a lakh of rupees from the Minister of that Power. It does not appear that A accepted this sum as a motive or reward for doing or forbearing to do any particular official act, or for rendering or attempting to render any particular service to that power with the Government of Pakistan. But it does appear that A accepted the sum as motive or reward for generally showing favour in the exercise of his official functions to that power. A has committed the offence defined in this section.

(c) A, a public servant, induces Z erroneously to believe that A’s influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section.

Notes: “Official acts”: Signifies both acts done bona fide and mala fide. PLD 1964 S.C. 266. Destruction of telegram. PLD 1960 S C 50. Section 161 read with section 5(2) of 1947. Accused can be charged with either or both. 1974 SCMR 199. Attempt to take any illegal gratification. Offence as actual acceptance of bribe. PLD 1959 S.C. (Pak) 1. Tainted money recovered-Onus on the accused to explain how and what for he got the money. 1975 SCMR 164 + 1977 SCMR 503. Case mainly resting. on the evidence of bribe giver. PLD 1963 S.C. 38. Amassing of wealth beyond means. PLD 1957 S.C. (Ind) 513. Termination of service accused does not loses protection. 1972 SCMR 239. Previous enmity or hostility may prove motive. 1972 P.Cr.L.J. 836. Mere fact of recovery of tainted money does not prove charge. 1970 P.Cr.L.J. 520. Conviction only if accused accepted money knowing it to be illegal gratification. 1971 P.Cr.L.J. 723. Demand and receipt. Two distinct offences. PLD 1969 S.C. 278. Conviction not to be based on solitary evidence of complaint. 1972 P.Cr.L.J. 836. Unwilling bribe giver. Not an accomplice. 1974 SCMR 58. Decoy witness. Difficult to accept his interested testimony. PLD 1961 Dacca 806. Money extorted from complainant. Complainant not an abettor. PLD 1963 S.C. 38. Receipt of money by intermediary. Additional piece of evidence. PLD 1981 S.C. 102. Complainant resiling can be prosecuted for perjury. PLD 1982 S.C. 291.

LATEST LAW

Ingredients. 1989 PSC 995. Illegal gratification neither demanded nor accepted. 1989 P.Cr.L.J. 2217. Version of defence more plausible. 1989 P.Cr.L.J. 64. Accused not present at the time of raid. 1989 MLD 705. Employee of Road Transport Board-Not public servant. 1989 P.Cr.L.J. 1680. Trap raid-No bar for any Magistrate if approached by Anti-Corruption Establishment. 1992 P.Cr.L.J. 490. Acceptance of valuables or currency sufficient. 1989 PSC 995. Act done not official. 1987 MLD 1442 + PLD 1975 Kar. 239. Weakness of defence cannot strengthen prosecution case. 1986 P.Cr.L.J. 1558. Statement of decoy witness cannot be implicitly relied upon without corroboration. 1986 P.Cr.L.J. 1839, 2324 + 1986 MLD 2405.

Presumption-Cannot be used against accused. 1986 P.Cr.L.J. 473. Proceedings without proper sanction-Coram non judice. 1986 P.Cr.L.J. 2547. Defect not curable. 1986 P.Cr.L.J. 847.

Withdrawal of case by public prosecutor-Order of Government in writing necessary. 1989 P.Cr.L.J. 1361.

Sentence-Case proved-No leniency should be shown. PLD 1987 S.C. 500. Departmental enquiry under Efficiency Rules after acquittal-Not barred. PLD 1987 S.C. 195.

162. Taking gratification, in order, by corrupt or illegal means, to influence public servant. Whoever accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, gratification whatever, as a motive or reward for inducing, by corrupt or illegal means any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render Or attempt to render any service or disservice to any person with the Central or any Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Notes: Complaint inimical: Benefit to go to accused. 1968 P.Cr.L.J. 1536. The gist of offence under these sections lies in this that the money should have been obtained for the avowed purpose of inducing a public servant either by corrupt or illegal means or by the exercise of personal influence to do or to forbear from doing an official act or to show favour or disfavour to another person. PLD 1971 S.C. 467. Acceptance of money for a purpose other than illegal gratification. 1986 P.Cr.L.J. 1274. Offence not given in the Schedule-Special Judge has no jurisdiction. 1986 P.Cr.L.J. 1274.

163. Taking gratification, for exercise of personal influence with public servant. Whoever accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central or any Provincial Government or Legislature, or with any public servant, as such, shall be punished with simple imprisonment for a term which may extend to one year, or fine, or with both.

Illustration

An advocate who receives a fee for arguing a case before a judge, a person who receives pay for arranging and correcting a memorial addressed to Government, setting forth the services and claims of the memorialist, a paid agent for a condemned criminal, who lays before the Government statements tending to show that the condemnation was unjust-are not within this section, inasmuch as they do not exercise or profess to exercise personal influence.

Notes: Demanding and accepting money for onward giving to public officer-Offence under section 163, P.P.C. PLD 1971 S.C. 467.

164. Punishment for abetment by public servant of offences defined in section 162 or 163. Whoever, being a public servant in respect of whom either of offences defined in the last two proceeding sections is committed, abets the offence, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.

Illustration

A is a public servant, B, A’s wife receives a present as a motive for soliciting A to give an office to a particular person. A abets her doing so. B is punishable with imprisonment for a term not exceeding one year, or with fine or with both. A is punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

165. Public servant obtaining valuable thing, without consideration, from person concerned in proceeding or business transacted by such public servant. Whoever, being a public servant accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Illustrations

(a) A, a Collector, hires a house of Z who has a settlement case pending before him. It is agreed that A shall pay fifty rupees a month, the house being such that, if the bargain were made in good faith, A would be required to pay two hundred rupees a month. A has obtained a valuable thing from Z without adequate consideration.

(b) A, a Judge, buys of Z, who has a case pending in A’s Court, Government promissory notes at a discount, when they are selling in the market at a premium. A has obtained a valuable thing from Z without adequate consideration.

(c) Z’s brother is apprehended and taken before A, a Magistrate, on a charge of perjury. A sells to Z shares in a bank at a premium, when they are selling in the market at a discount. Z pays A for the shares accordingly. The money so obtained by A is a valuable thing obtained by him without adequate consideration.

165-A. Punishment for abetment offences defined in sections 161 and 165. Whoever abets any offence punishable under section 161 or section 165 shall, whether the offence abetted is or is not committed in consequence of the abetment, be punished with the punishment provided for the offence.

Notes: Public servant does not happen to possess necessary power. Offence of bribe giver complete. 1968 P.Cr.L.J. 896. Person not in a position to show favour 1971 P.Cr.L.J. 123 Offence must be with reference to official act. 1971 DLC 87. Person charged with an offence under sections 165, 165-A. Competent witness. PLD 1957 S.C. (Ind) 513.

[Ordinance LIX of 1962 by which section 165-6 was inserted since repealed by Ord. LXVII of 1998] [165-B. Certain abettor excepted. A person shall be deemed not to abet an offence punishable under section 161 or section 165 if he is induced, compelled, coerced, intimidated to offer or give any such gratification as is referred to in section 161 for any of the purposes mentioned therein or any valuable thing without consideration, or for an inadequate consideration, to any such public servant as is referred to in section 165.]

165-B. Certain abettors excepted:——A person shall be deemed not to abet an offence punishable under section 161 or section 165 if he is induced, compelled, coerced, or intimidated to offer or give any such gratification as is referred to in section 161 for any of the purposes mentioned therein, of any valuable thing without consideration, or for and inadequate consideration, to any such public servant as is referred to in section 165.

166. Public servant disobeying law with intent to cause injury to any person. Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Illustration

A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section.

167. Public servant framing an incorrect document with intent to cause injury. Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document, frames or translates, that document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Notes: Complaint by accused civil servant to thwart departmental proceedings. Not warranted. PLD 1987 S.C. 29. Offence not covered by Schedule. Rules to obtain sanction not applicable. 1986 P.Cr.L.J. 2597.

168. Public servant unlawfully engaging in trade. Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Notes: Trade: Calling or profession taken up for purpose of livelihood. PLD 1961 Lah. 684.

169. Public servant unlawfully buying or bidding for property. Whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for certain property, purchases or bids for that property either in his own name or in the name of another, or jointly, or in shares, with others shall be punished with simple imprisonment for a term which may extent to two years, or with fine or with both; and the property, if purchased, shall be confiscated.

170. Personating a public servant. Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description, for a term which may extend to two years or with fine or with both.

171. Wearing garb or carrying token used by public servant with fraudulent intent. Whoever, not belonging to a certain class of public servants, wears any garb or carries any token resembling any garb or token used by that class of public servants with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred rupees, or with both.

Notes: Wearing of uniform of higher officer. 1989 SCMR 1867. Refusal to give evidence on oath under section 340(2) Cr.P.C. PLD 1987 Pesh. 31.

CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS

171-A: “Candidate” “Electoral right” defined. For the purposes of this Chapter:

(a) “candidate” means a person who has been nominated as a candidate at any election and includes a person who, when an election is in contemplation, holds himself out as a prospective candidate thereat; provided that he is subsequently nominated as a candidate at such election;

(b) “electoral right” means the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election.

171-B. Bribery. (1) Whoever–

(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right, or

(ii)    accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery:

Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.

(2) A person who offers or agrees to give or offers or attempts to procure a gratification shall be deemed to give gratification.

(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.

171-C. Undue influence at elections. (1) whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral rights commits the offence of undue influence at an election.

(2) Without prejudice to the generality of the provision of sub-section (1), whoever:

(a)     threatens any candidate or voter, or any person in whom a candidate or voter is interested with injury of any kind, or

(b)     induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1).

(3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intention to interfere with an electoral right, shall not be deemed to be interference with the meaning of this section.

171-D. Personation at elections. Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who have voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence of personation at an election.

171-E. Punishment for bribery. Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both:

Provided that bribery by treating shall be punished with fine only.

Explanation. “Treating” means that form of bribery where the gratification consists in food, drink, entertainment or provision.

171-F. Punishment for undue influence or personation at an election. Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

171-G. False statement in connection with an election. Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate shall be punished with fine.

171-H. Illegal payments in connection with an election. Whoever without the general-of special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such ca , shall be punished with fine which may extend to five hundred rupees:

Failure to keep election accounts. Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.

171-I. Whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine which may extend to five hundred rupees.

171-J. Inducing any person not participate in any election or referendum, etc. [Added by Ordi. LIV of 1984.] Whoever by words, either spoken or written, or by visible representations, induces or, directly or indirectly, persuades or instigates, any person not to participate in, or to boycott, any election or referendum, or not to exercise his right of vote thereat, shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine which may extend to five lac rupees, or with both.]