Mens rea

Securities and Exchange Commission of Pakistan ('Commission') penalized Appellant (Insurance Company ) on a complaint lodged by National Insurance Company Limited (NICL/Complainant ) for underwriting insurance policies of vehicles of a public sector entity (PASSCO)

Assertion of the Appellant was that the Respondent/Commission was required to establish mens rea (guilty mind) before proceeding against the Appellant under S. 156(6) of the Insurance Ordinance 2000 because the Appellant being a regulatee under the Insurance Ordinance 2000 was required to have complete knowledge and information regarding the ambit of operations and restrictions imposed under the law

Legal principle of law, "ignorantia juris non excusar" (ignorance of the law excuses not), or "ignorantia legis neminem excusat" (ignorance of law excuses no one), is explicit and holds that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content

Furthermore, ignorance of the law may be considered as a valid argument inparticular cases where violations are committed by a third person, having no direct or indirect concern with the relevant law, however, a regulatee or any other stakeholder under the relevant law cannot take a defense that they were not aware of such law

Appeal, filed by Insurance Company, being merit-less was dismissed, in circumstances.

Assertion of the respondent/complainant was that the petitioner in different documents, including habeas/guardian petition for a, had alleged that he (complainant) was a Ahmadi/Qadiani by faith whereas he was a Barelvi Muslim , thus petitioner had defamed him by causing false imputation

Validity

Essential ingredient of defamation as per S.499 of the Penal Code, 1860 (P.P.C.) is mens rea, therefore according to the Eighth Exception to S.499, P.P.C., accusation levelled in good faith before a lawful authority for protection of right or interest can not be defamation

When the statement is made for public good and to safeguard the interest of its maker, without any malicious motive, offence of defamation is not made out

However, for summoning an accused person, the facts of the case should only be discussed prima facie and, therefore, the inherent powers of the High Court are to be sparingly exercised to prevent the abuse of the process of law

Some important questions must not be lost sight of: firstly, whether the faith of father does not determine the faith of the child in normal circumstances; secondly, in the wake of total denial of a particular faith by a person, whether a Family Court can issue any such declaration within the scope of Family Courts Act, 1964 , while determining welfare of the minor in deciding his custody petition; thirdly, whether the allegations before the judicial authorities are in good faith; fourthly, whether the Sessions Court is not the forum to determine the criminal consequences of calling someone with some faith other than his own

However, all said questions will have to be determined by the Sessions Court, once the same may be brought to its (Court's) notice through an application under S.265-K, Cr.P.C

Since the petitioner had already entered appearance before it (the Court), criminal revision was disposed of accordingly.

Default surcharge ought not to be imposed in a perfunctory manner and may only be warranted upon proper adjudication as to willful default and the presence of mens rea.

Penalties under fiscal laws are quasi criminal in nature and warrant imposition in the presence of culpable intent.

Section 34 of the Sales Tax Act, 1990 is materially not different in scope from Ss.161 & 205 of the Income Tax Ordinance, 2001, relating to default and willful default and the levy of default surcharge on a hypothetical basis, and without establishing willful default on the part of taxpayer, is illegal.

Even non-payment of tax due to misinterpretation of law in good faith does not attract a penalty.

Mere failure to determine correct income and pay tax accordingly, until it is a result of fraud or willful gross neglect, will not ipso facto warrant imposition of penalty

Falsity of an explanation by the taxpayer is not in and of itself a cause to mandatorily impose penalty under the Ordinance

Assessee is not called upon to prove his innocence; it is for the department to establish his guilt

Penalty can be imposed only when the revenue officer establishes a case indicating dishonest motive of an assessee in filing a return

For the purposes of imposition of penalty, the assessee must be conscious of having concealed the particulars of his income

For imposition of penalty it is not sufficient that the assessee's explanation was not satisfactory or was even false; an evidence independent of assessee's explanation should be on record before penalty could be imposed

Even if an assessee agrees to a higher assessment than the returned income, it is not sufficient to levy penalty, whereas, the position may be different if the assessee admits that the addition may be treated as its concealed income, in which case the department need not establish anything more to levy penalty

Before penalty can be imposed the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had deliberately furnished inaccurate particulars.

Classification of goods is a question based on legal and factual determination and so also of interpretation of the HS Code and the Customs Tariff; hence, there can always be difference of opinion for interpreting the same

Such will not always be a case of mens rea and imposition of penalty if the claimed HS Code is not accepted by the department.

Where department had accepted the classification claimed by importer instead of objecting and refusing the assessment or issuing any show cause notice at the time of clearance of goods, High Court observed that merely for the fact that some other HS Code was mentioned would not ipso facto mean that the element of mens rea was present making the importer liable for imposition of penalty.

Accused was convicted by Trial Court for seeking loan from complainant Bank on the basis of forged property documents and was sentenced to imprisonment for six years

Validity

Prosecution failed to prove either through direct evidence or inference based on the conduct of accused that there was any mens rea on the part of accused to commit any of the offences for which he was convicted

Prosecution was to prove its case against accused beyond reasonable doubt and benefit of doubt was to go to accused by way of right as opportunity to concession

High Court set aside conviction and sentence awarded to accused by extending him benefit of doubt and acquitted him of the charge

Appeal was allowed, in circumstances.

Former (acts of commission) were required to be adjudged on the touchstone of objective societal standards, and in doing so, the profile or status of the offender, and the knowledge of the consequence of the said act of the offender would not be crucial in proving mens rea

While the latter (acts of omission) would require a subjective fault criterion, wherein the previous knowledge of the offender,regarding the consequences of his "act of omission" would be relevant and crucial to determining mens rea, and thus, the same would differ from person to person, keeping in view the profile or status of the offender.

Prosecution has to establish criminal intention or mens rea to prove criminal responsibility.

Prosecution has to establish criminal intention or mens rea to prove criminal responsibility.

Penalty can only be imposed if non-payment of tax on the part of taxpayer is proved as mala fide, wilful, contumacious and having an element of mens rea.

Penalty provisions are at least quasi-criminal proceedings and the presence of mens rea is essential for imposition of any penalty under the Income Tax Ordinance, 2001.

Mens rea denotes the state of mind that would compel a person to deviate from the law or to commit an offence, which also encompasses recklessness within its ambit

Concept of mens rea basically revolves around the state of mind and the conduct of the person.

Such intention was to be proved by the prosecution by placing on record the evidence that the accused knew that what they were doing was illegal as was done dishonestly and in a deceitful manner.

Final determination of mens rea in respect of accused has to be decided by Trial Court after hearing all evidence in the case.

Finding determination of mens rea in respect of accused persons has to be decided by Trial Court after hearing all the evidence in the case

Pre-arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on part of complainant or investigating agency.

In order to attract mischief of Qatl-bis-Sabab attribution of mens rea to wrongdoer is not condition precedent and instead, actus reus of such person is made culpable.

Loan was made to an employee who existed but who did not have the capacity to enter into lease agreement and subsequently disappeared

Petitioner was only involved in one transaction, therefore, entitled to benefit of doubt

Mens rea of petitioner and whether there was any criminal involvement on his part in respect of one transaction in question was to be determined by Trial Court on the evidence which would be produced before it

Bail was allowed in circumstances.

Any action falling within any of the categories of cases mentioned in S.6(2) of the Anti-Terrorism Act, 1997 could not be accepted or termed as "terrorism" unless the said action was accompanied by a "design" or "purpose" specified in S.6(1)(b) or (c) of the said Act

Provisions of S.6 of the Anti-Terrorism Act, 1997 which defined "terrorism" clearly showed that the said section was divided into two main parts, i.e. the first part contained in S.6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the "design" or the "purpose" behind an action and the second part falling in S.6(2) of the said Act specifying the actions which, if coupled with the mens rea (i.e. design or purpose) , would constitute the offence of "terrorism", held not to be correct law.

Trial Court, on the basis of documentary evidence produced by officials, convicted accused persons and sentenced them to imprisonment for ten years along with fine

Validity

Prosecution witness who produced audit report could not substantiate the case of prosecution to prove guilt of accused persons for the reason that he did not conduct the audit himself

Another prosecution witness who deposed against accused persons had no personal knowledge about the scam and got information through record as admitted by him in cross-examination

Evidence of complainant could not prove the case of prosecution as, he, after getting information about fraud lodged crime report and whatever he stated was based on the report of special audit conducted in year 2002

Prosecution witness who produced the record before investigating officer was just an attesting witness of recovery memos and no document bore his signatures

Evidence of such prosecution witnesses did not prove culpability of accused persons as they just produced documents before investigating officer who took those in custody through memos

Evidence adduced suggested irregularities on the part of all the three accused persons but in absence of evidence regarding mens rea charge could not be established

High Court set aside the conviction and sentence awarded to accused persons by Trial Court and they were acquitted of the charge

Appeal was allowed in circumstances.

Accused's subjective intent to threaten relevant for such purposes and not how a reasonable person understood such statement

Accused used a social networking web site for posting items containing graphically violent and crude language and imagery concerning his estranged wife, co-workers, and law enforcement officers

Some of these posts contained disclaimers or indications that they were fictitious and not intended to depict real persons, and that with such statements the accused was exercising his constitutional right of freedom of speech

Trial Court convicted the accused for transmitting 'communication containing a threat to injure the person of another' [18 U.S.C. §875(c)], and held that for conviction it only needed to be proved that the accused "intentionally made the communication, not that he intended to make a threat"; that it was enough that a "reasonable person" would foresee that others would view statements of accused as a serious expression of an intention to inflict bodily injury or take the life of an individual

Appellate Court agreed with the Trial Court and found that conviction for offence of 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], required only the intent to communicate words that the accused understood, and that a reasonable person would view (such communication) as a threat

Validity

Criminal liability generally did not turn solely on the results of an act without considering the accused's mental state

Accused must be "blameworthy in mind" before he could be found guilty

General rule was that a guilty mind was a necessary element in the indictment and proof of every crime

For finding an accused guilty for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], the accused must know that he was transmitting a communication

Communicating something in itself, however, was not what made the conduct wrongful

Crucial element separating legal innocence from wrongful conduct was the threatening nature of the communication

Mental state requirement for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], was satisfied if the accused transmitted a communication for the purpose of issuing a threat, or with knowledge that the communication would be viewed as a threat

Requirement of mental state of accused must therefore apply to the fact that the communication contained a threat

Conviction of accused, in the present case, was premised solely on how his posts would be understood by a reasonable person

Such a "reasonable person" standard was a familiar feature of civil liability in tort law, but was inconsistent with the conventional requirement for criminal conduct

Having liability turn on whether a "reasonable person" regarded the communication as a threat - regardless of what the accused thought reduced culpability on the all-important element of the crime to negligence

Standard for determining negligence was not intended in criminal statutes

Negligence was not sufficient to support a conviction for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)]

What the accused thought (of his posts) in the present case, thus, did matter

Question as to whether accused's recklessness in making threatening statements should suffice to require a conviction, could not be answered as both parties in the present case had not briefed or argued such point

[Per Samuel Anthony Alito, JSC, concurring and dissenting in part with the majority opinion]

Majority opinion of the Supreme Court in the present case, refused to explain as to what type of intent was necessary to convict the accused; whether there needed to be a finding that accused had the purpose of conveying a true threat; whether it was enough if the accused knew that his words conveyed such a threat, and whether recklessness would suffice

Conviction for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], demanded proof that the accused's transmission was in fact a threat, i.e., that it was reasonable to interpret the transmission as an expression of an intent to harm another

In addition, it must be shown that the accused was at least reckless as to whether the transmission met that requirement

Recklessness existed when the accused disregarded a risk of harm of which he was aware

Accused's recklessness in making threatening statements should suffice to require a conviction for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)]

Accused may be convicted if he or she consciously disregarded the risk that the communication transmitted would be interpreted as a true threat

Supreme Court reversed the judgment of the Appellate Court and remanded the case to the Appellate Court for further proceedings consistent with the (majority) opinion of the Supreme Court

Order accordingly.

Accused used a social networking web site for posting items containing graphically violent and crude language and imagery concerning his estranged wife, co-workers, and law enforcement officers

Accused claimed that he posted the writing on social media for 'cathartic' reasons as it had therapeutic effect for him and helped him to deal with his pain; that with such posts the accused was exercising his Constitutional right of freedom of speech, and that his posts which were in the form of rap song lyrics were constitutionally protected works of art, because they were similar to words uttered by rappers and singers in public performances and recordings

Trial Court convicted the accused for transmitting 'communication containing a threat to injure the person of another' [18 U.S.C. §875(c)]

Validity

Fact that making a threat may have a therapeutic or cathartic effect for the speaker was not sufficient to justify constitutional protection (of free speech)

Some people may experience a therapeutic or cathartic benefit only if they knew that their words would cause harm or only if they actually planned to carry out the threat, but surely the right to free speech did not protect them

Context of present case had to be kept in mind when considering the contention of accused that if celebrity singers could utter threatening words in their songs, amateurs like him should be able to post similar things on social media

Taken in context, lyrics in songs that were performed for an audience or sold in recorded form were unlikely to be interpreted as a real threat to a real person

Statements on social media that were pointedly directed at their victims, by contrast, were much more likely to be taken seriously

To hold otherwise would grant a license to anyone who was clever enough to dress up a real threat in the guise of rap song lyrics, a parody, or something similar

Evidence suggested that accused made sure his estranged wife saw his posts, and she also testified that they made her feel "'extremely afraid'" and "'like [she] was being stalked"

Threats of violence and intimidation were among the most favoured weapons of domestic abusers, and the rise of social media had only made those tactics more commonplace

Cover of artistic expression could not convert hurtful, valueless threats into protected speech

Posts made by the accused on social media in the present case were not covered by the protection of free speech under the Constitution

Case was remanded to the Appellate Court accordingly.

Accused used a social networking web site for posting items containing graphically violent and crude language and imagery concerning his estranged wife, co-workers, and law enforcement officers

Some of these posts contained disclaimers or indications that they were fictitious and not intended to depict real persons, and that with such statements the accused was exercising his constitutional right of freedom of speech

Majority opinion of the Supreme Court, in the present case, found that conviction for 'communication containing a threat to injure the person of another' [18 U.S.C. §875(c)], did not require consideration of how the posts would be understood by a reasonable person (general intent), rather, prosecution had to prove that accused 'knew' or was aware of his wrongdoing

Present case needed to resolve the question of the appropriate mental state of accused for threat prosecutions [under 18 U.S.C. §875(c)]

Question was "whether conviction for threatening statement [under 18 U.S.C. §875(c)] demanded proof only of general intent (i.e. how a reasonable person understood such statement), or proof of accused's subjective intent to threaten"

Majority opinion of the Supreme Court in the present judgment had cast aside the 'reasonable person' approach for convicting an accused for threatening statements, but left nothing in its place

All the lower courts would know in light of the majority opinion of the Supreme Court, was that mental requirement of general intent would not do

Majority opinion of the Supreme Court did not answer the question "whether recklessness would suffice for conviction" [under 18 U.S.C. §875(c)]

Failure to decide such questions threw everyone from judges to everyday social media users into a state of uncertainty, and lower courts were left to guess at the appropriate mental state required for convicting an accused for a threatening statement [under 18 U.S.C. §875 (c)]

Such uncertainty could have been avoided had the majority view of the Supreme Court in the present case simply adhered to the rule of the common law favouring general intent (for conviction)

Question as to whether a communication qualified as a true threat could not be determined solely by the reaction of the recipient, but must instead be determined by the interpretation of a reasonable recipient familiar with the context of the communication

Conviction for communicating a threat to injure the person of another [18 U.S.C. §875(c)], only required proof of general intent

Any accused prosecuted for such communication must know only the words used in that communication, along with their ordinary meaning in context

At a minimum, conviction for communicating a threat to injure the person of another [18 U.S.C. §875(c)], required that such communication must be one that a reasonable observer would construe as a true threat to another

Posts made by the accused, in the present case, met such objective standard

Someone who transmitted, but did not know English - or who knew English, but perhaps did not know a threatening idiom - lacked the general intent required for the offence of communicating a threat to injure the person of another [18 U.S.C. §875(c)]

Likewise, a mailman who delivered a threatening letter, ignorant of its contents, should not fear prosecution

However, a person, like the accused in the present case, who admitted that he "knew" that what he was saying was violent but supposedly just wanted to express himself, acted with the general intent required for the offence of communicating a threat to injure the person of another [18 U.S.C. §875(c)], even if he did not know that a jury would conclude that his communication constituted a "threat" as a matter of law

Accused should have been convicted in the present case as he intentionally made the communication, and a "reasonable person" would foresee that others would view statements of accused as a serious expression of an intention to inflict bodily injury or take the life of an individual

Order accordingly. [Minority opinion]

To administer criminal justice the most important criteria or essence of every offence i.e. mens rea or guilty mind had to be considered

No crime or offence was completed unless the commission of the same was coupled with the necessary ingredients of mens rea or guilty mind.

Accused was charged under S. 9(a)(iv) of National Accountability Ordinance, 1999, for awarding contract for construction of a monument and Trial Court after recording of evidence acquitted the accused

Validity

None of prosecution witnesses stated even a single word against conduct, behavior as well as criminal intent of accused, if he ever had tried to oblige contractor in any manner while granting contract

No evidence was available on record in respect of any monetary benefit extended by accused in favour of contractor himself or he himself got any such illegal gains as a result of grant of contract

Charge under S. 9(a)(iv) of National Accountability Ordinance, 1999, was rightly held not proved by Trial Court

Presumption of innocence was always in favour of accused at trial stage and when court of competent jurisdiction had passed order of acquittal, such presumption became double and to set aside the same unimpeachable evidence was required

Trial Court after applying its judicious mind acquitted accused and once judgment of acquittal had been passed by competent court of jurisdiction after proper and correct appraisal of evidence, same could not be interfered with merely on the ground that on re-analysis of evidence another view could be taken

High Court declined to interfere in judgment of acquittal passed by Trial Court

Appeal was dismissed in circumstances.

Revenue authorities contended that non-payment of sales tax over a long period of time proved the guilty mind and mens rea on the part of taxpayer

Validity

Imposition of default surcharge under S.34 of the Sales Tax Act, 1990 was mandatory and not discretionary

Appeal was disposed of accordingly.

Most important factor for consideration under S.295-B, P.P.C was whether there existed any mens rea on part of accused for committing the offence

Where accused did not have any intention of wilfully defiling, damaging, desecrating, destroying or contemptuously disrespecting text of the Holy Qur'an or part of it, he/she could not be considered to have any mens rea to commit the offence under S. 295-B, P.P.C.

Accused was Secretary Cooperatives who availed financial facility from Cooperative Society without proper security or personal guarantee

Trial Court convicted the accused and sentenced him to 5 years' imprisonment along with fine but High Court reduced the sentence to imprisonment for 3 years

Validity

Accused was DMG officer, posted in Lahore in year, 1987, and while using his official status and position, had obtained a huge amount in shape of financial facility from Cooperative Society in question

Accused subsequently became Secretary Cooperatives and during such period he kept on making withdrawals, without making any adjustment/repayment of loan

Despite judicial verdict against accused, he failed to execute decree against him and kept quiet until NAB authorities took the charge of the case and only then accused agreed for return of loan amount/financial facility

Such was not temporary withholding of loan amount but a permanent default on his part to repay loan money , which was taken by him between the period 1988 to 1991

Such conduct of accused expressly displayed his mala fide and mens rea

Supreme Court declined to interfere in conviction and sentence awarded to accused by High Court

Appeal was dismissed.

Penal provisions could be imposed on a person on committing certain acts or omissions with mens rea.

General rule is that there is presumption that mens rea, an evil intention or knowledge of wrongfulness of the act is an essential ingredient in every offence

Such presumption is liable to be displaced by subject-matter with which it deals.

Essential elements of mens rea and intention to commit an offence under S.9(a)(vi) of National Accountability Ordinance, 1999, were not traceable in the transaction

Authorities also failed to prove that accused acted for their personal gain at the cost of' causing financial loss to the organization (Pakistan Naval Shipping Corporation) or ships in question were not of viable technology and were not that of international standard and specification

Mere procedural irregularities in transaction were not sufficient to constitute offence under S.9(a)(vi) of National Accountability Ordinance, 1999

Essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine question of criminal liability in transaction

Procedural irregularity might bring an act done in official capacity within the ambit of misconduct which was distinguishable from criminal misconduct

Act which might constitute an offence and unless it was established through evidence that such act or series of acts done in transaction constituted an offence, the criminal charge would be groundless

Accused might have committed certain procedural irregularities constituting act of misconduct in contemplation of law applicable to their service but the same might not have constituted a criminal offence under S.9(a)(vi) of National Accountability Ordinance, 1999, punishable under S.10 of the Ordinance or under any other law without proof of the existence of element of dishonest intention of personal gain

Prosecution failed to discharge initial burden of proving even a prima facie case constituting an offence under National Accountability Ordinance, 1999

Supreme Court declined to interfere with judgment passed by High Court

Leave to appeal was refused.

Combination of these acts would tag the wrong doer with the "mens rea".-In criminal law, particularly under the Penal Code, no man could be tried or imprisoned for an act which was committed due to any delusions or misconception of mind, however, culpable and criminal it might be

In offence of negligence or negligent driving, it was not mandatory for the prosecution to prove "mens rea" (intention) of accused while to the contrary in offences when mens rea was made an essential element to constitute same, then prosecution have to establish the crime adducing evidence to prove all the elements constituting the crime i.e. mens rea etc.

­Principles detailed.

Provisions of the National Accountability Bureau Ordinance, 1999, do not rule out mens rea and make the offence as one of strict liability

Foundation of mens rea qua the offence under S.9(a)(vi) of the said Ordinance is found in two elements: firstly in conscious misuse of authority and secondly in gaining of any benefit or favour by the accused for himself or for any other person.

Protesters were aggrieved on account of murder of a person in police custody for whose death no person in authority had taken notice of

No offence could be constituted if mens rea in commission of offence was not proved.

Mens rea-Mens rea or a guilty mind was an essential ingredient of a criminal offence and it was sound rule of construction to read element of mens rea in statutory provisions, unless statute expressly or by necessary implication excluded it.

Definition. Salmond on Jurisprudence, 12th Edn.,by P.J. Fitz Gerald, published by Sweet and Maxwell, London ref.

Nothing on record available to show intentional causing the disappearance of files-Magistrate stating accused to be negligent-Loss of property through negligence, held, was not covered by S.409, P.P.C. which contemplates dishonest misappropriation or conversion to his own use of property entrusted to him and implies mens rep

Conviction not sustainable in circumstances.

Mens rea -Statute of absolute prohibition may create strict liability irrespective of mens rea-Provisions of East Bengal Essential Food-stuffs Anti-Hoarding Order, 1956, read with Central Ordinance (X of 1955) indicate that mens rea has been dispensed with as necessary ingredient of offence-East Pakistan Ordinance (VI of 1956), S. 6.