PENAL LAWS

PENAL LAWS <!--[if gte mso 10]> PENAL LAWS By Ch. Manzoor Hussain, Advocate, Rawalpindi With the emergence of man, the steady growth of the orderly system during the long course of history is a common phenomenon. From the stint of self-preservation, nucleus of family and evolution of society emerged the dawn of law. The love of life and protection thereof, led to the inter se violation of and self-defence among various groups of man. The concept now designated sin, crime and civil wrongs were not distinguished at the earliest point of time. It was at a later stage that well-defined demarcation with precise limits, was attempted. "There is nothing that is intimately criminal: there can be nothing that must be inherently immoral". It is the society that makes the criminal who in turn attacks it with ferocity. The apparatus to purge the society of the criminal liability is the formulation of penal law. 2. "The term 'penal statute' if employed without qualification, is ambiguous". Most of the laws contain the provisions to attract liability for crime, if the disobedience or violation thereof relates to the public interest and to civil action in case of private interest. "From the point of view of a pleader, a penal statute is one upon which an action for penalties, can be brought by the public officer". But, in its wider sense, the 'penal act' would encompass all such laws, which create offences against the State. The cause of ambiguity is that the statutes fall in the following three classes and not into two: (i) Acts enforceable by criminal remedies. (ii) Acts enforceable by civil remedies (damages) (iii) Acts enforceable by civil remedies (penalty, forfeitures or disability). The right of the private prosecutor is, in theory, right of the State for he cannot recover for his personal ends. 3. The following rules apply for deciding as to whether statutes are or not penal: (i) Prima facie, the imposition of fine or penalty by the statutes makes the procedure penal. (ii) That the fine, penalty or forfeiture is payable to an individual, does not per se, render the remedy civil. (iii) But, where the penalty is recoverable by action of debt, the remedy is civil. (iv) In certain cases, the penalty has been held to be liquidated damages and not a penalty in the stricter sense. (iv) In some cases, the "penalty being recoverable only by a person aggrieved, the action is deemed so for penal that discovery in aid of it is not permitted. (v) An act may be remedial from one point of view and penal from other. 4. Since the penal statutes impose penalties and burden on the citizens, they are strictly interpreted. There is no presumption, intendment or equity. In Tuck v. Priester, Lord Esher M.R. said with reference to section 6 of the Copyright Act, 1862: "We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction". The penalties cannot be imposed unless provided by clear and ambiguous terms. According to Blackburn, J., when the Legislature imposes a penalty, the words imposing it must be clear and distinct. The general principle in the interpretation of statutes is that in case of ambiguity or doubt, the benefit would go to the person charged". If there is a reasonable Interpretation, which would avoid penalty in any particular case, we must adopt that construction. If there are two reasonable constructions, we must give more lenient one. That is settled rule for the construction of penal statutes". 5. According to Maxwell, the strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of the offence; in requiring the fulfilment to the letter of statutory conditions precedent to the inflicting of punishment, and in insisting on the merit observance of technical provisions concerning criminal procedure and jurisdiction: (i) No act is to be considered criminal unless it is as such by express words of the statute. "A mere declaration that all 'lotteries' are unlawful" does not create any offence on which prosecution can be based. (ii) "If there is any ambiguity in the words which set out the element of an act or omission declared to be an offence, so that it is doubtful, whether the act or omission in question in the case falls within the statutory words, the ambiguity would be resolved in favour of the person charged." (iii) "Punishment can only be imposed if the circumstances of the case fall clearly within the words of enactment." (iv) "Similarly the statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed; compliance with procedure will be stringently exacted from the proceedings against the person liable to be penalized." 6. The statutes which encroach upon the rights of citizen's property or person have to be strictly interpreted as penal law. "It is a recognized rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted, one aspect of this approach to legislation is the presumption that a statute does not retrospectively abrogate vested rights; another is the presumption that proprietary rights are not taken away without provision being made of compensation". 7. The statutes imposing pecuniary burden upon the citizens are also subject to strict construction. There is no equity, intendment or presumption in favour of charge, which has to be imposed strictly in accordance with the law. The tax should be imposed by clear and unambiguous language, one can only look fairly at the language. If there is ambiguity or doubt in the language, the benefit would go to the subject. This is because in some degrees, they operate as penalties. 8. In this context, a few verdicts of superior Courts, indicated below, would provide in-depth study into the subject: (i) Criminal statute requires strict constructions so far as it imposes restrictions and punishments. Beneficial provisions like section 382-B, Cr.P.C., need not be construed liberally (PLD 1991 SC 1065). (ii) Criminal law statutes cannot be interpreted by adding to it or making redundant words used in it (1995 MLD 1775). (iii) If two constructions of a provision of a criminal statute are possible, one, which favours accused, should be preferred to that which favours the prosecution (1986 PCr.LJ 2994). (iv) Strict interpretation of penal Statute -- Resort to internal aid -- Not justified where statutory provision is unambiguous (1983 PCr.0 1465). (v) Interpretation of penal statutes -- Governed by rule of strict construction --In case of doubt whether act or omission in question falls within statutory words, ambiguity would be resolved in favour of the accused (PLD 1985 SC (AJ&K) 125). (vi) Strict construction Law affecting liberty of citizens to be strictly construed against Government and in favour of the citizen (1977 PCr.LJ 1018). (vii) Every criminal or punitive statutes is subject to which has been called a strict construction. A statute which encroaches on the rights of subject must be strictly construed (PLD 1979 Kar. 233). (viii) Interpretation of Penal Statutes -- In case where two interpretations are possible, interpretation which is more lenient and favours accused, should be allowed (1998 MLD 1537). (ix) Penal clauses of statutes have to be strictly construed and followed (PLD 1996 Lah. 284). (x) Penal provisions and provisions which oust the jurisdiction of ordinary Courts should be strictly construed (1993 PCr.LJ 1211). (xi) Penal statutes must be construed strictly. No deletion, insertion, addition or amendment can be made in the penal statutes (1995 PCr.LJ 755). ___________________________________________ 1. Maxwell on Interpretation of Statutes, 12th Edition. 2. Craies on Statute Law. 3. Crawford on Statutory Constructions.