Criminal Law
Criminal Law legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
This principle is meant to safeguard impartiality and evenhandedness to nourish egalitarianism in criminal administration of justice.
Principle of criminal jurisprudence arising out of maxim "communi observantia non est recedendum" means that when the law prescribes a specific procedure, it must be followed accordingly; any deviation renders the act questionable.
Whether guarantee of trial fairness permits or requires trial judge to appoint amicus curiae with adversarial mandate to advance interests of a self-represented accused who constantly disrupts the trial
Where trial judge appointed amicus curiae with limited mandate mid-trial
Whether delayed and limited appointment of amicus led to an appearance of unfairness that rose to the level of miscarriage of justice
Appointment, role and scope of an amicus curiae in a criminal trial and the discretion of the trial judge in such regard stated.
Legal presumption, and that too, in a criminal enactment having severe penal punishments, must be viewed and interpreted strictly and with due legal care.
Decisions on sentencing are no more than examples of how Court has dealt with a particular offender in relation to a particular offence
Criminal jurisprudence has developed to some extent except the principles of uniformity of sentence for a particular category of crime but they are not authoritative in a strict sense
Limitation or curtailment of sentencing may be regulated by legislative provisions and other modes of fettering discretion in awarding of punishment may also result from the principles stated by judicial pronouncement
In English and American Laws, component of justice model is the constriction of judicial discretion by promulgation of standards with which judge must substantially comply
Main three strategies are: (a) enactment directly by legislature of a detailed set of principles of sentencing, indicating a normal or presumptive sentence for given classes of case, with specified aggravations and mitigations, leaving sentencing judge very limited discretion; (b) promulgation of standards, by a Commission composed of judges and other interested persons, which would be more detailed than a direct legislative enactment, less exposed to change but at the same time more flexible and capable of amendment in the light of experience; and (c) evolution of guidelines based on an empirical study of current sentencing practice within the jurisdiction concerned
In most of the systems, discretion is vested with Courts in matters of sentencing and passing other related orders
Continuous efforts are made to avoid disparity of sentencing as individualization of sentencing undermines uniformity of sentencing practice and creates disharmony detrimental to public confidence
Under the penal system, discretion is exercised by the Courts awarding sentence.
Threshold applicable to summary dismissal of application in criminal law context explained.
Law was not static in any manner rather it had to grow while passing through the process of evolution which was an essential ingredient of safe administration of criminal justice.
Momentary excessive speeding on its own could establish the mens rea for dangerous driving where, having regard to all the circumstances, it supported an inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited
Court had to analyse whether the reasonable person would foresee the dangers to the public from the momentary conduct
Fact that foreseeable consequences occurred within a short period of time after someone engaged in highly dangerous behaviour could not preclude a finding of mens rea for dangerous driving
When undertaking the mens rea analysis, the trial judge must work with the facts as found and consider whether, in the totality of the circumstances, a reasonable person would have foreseen the risk and taken the same actions as the accused
Duration and nature of an accused's conduct were only some of the factors to be considered with all of the circumstances in the mens rea analysis; they were not factors that could be taken out of context; it was conceivable that in some contexts, even grossly excessive speed may not establish a marked departure from the standard of care, while in other circumstances speed may not need to be grossly excessive in order to still be a marked departure
Concerning the required mental element it was not necessary to find that accused was subjectively aware of the risk of his conduct and intentionally created this risk, as the test for mens rea was based on the reasonable person.
Where evidence was obtained in a manner that infringed a Fundamental right or freedom (under the Canadian Charter of Rights and Freedoms ('the Charter')], such evidence must be excluded if it was established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute [section 24(2) of the 'Charter')]
First line of inquiry to be considered was the seriousness of the (Charter) infringing state conduct; this involved a consideration of whether admission of the evidence would send a message to the public that the courts, as institutions responsible for the administration of justice, effectively condoned state deviation from the rule of law
Court must fix the police misconduct on a spectrum ranging from the minor and inadvertent to the wilful or reckless
Appellate Court could not simply substitute its own view of the police conduct for that of the trial judge
Second line of inquiry focused on the impact of the (Charter) breaches on the (Charter) protected interests of the applicant
Impact of a (Charter) breach may range from fleeting and technical to profoundly intrusive
More serious the impact, the greater the risk that admission of the evidence may signal to the public that (Charter) rights were of little avail, thereby bringing the administration of justice into disrepute
In addition, the discoverability of the evidence was a relevant consideration in assessing the impact on the individual's (Charter) protected interests
Third line of inquiry considered society's interest in the adjudication of the case on its merits
Society generally expected that a criminal allegation would be adjudicated on its merits, and it had a collective interest in ensuring that those who transgressed the law were brought to trial and dealt with according to the law
Such inquiry asked whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion
Reliability of the evidence, its importance to the State's case, and the seriousness of the offences were all factors to be considered.
Where evidence was obtained in a manner that infringed a Fundamental right or freedom [under the Canadian Charter of Rights and Freedoms ('the Charter')] , such evidence must be excluded if it was established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute [section 24(2) of the Charter]
While the exclusion of evidence may provoke immediate criticism, the focus was on the overall repute of the justice system, viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of (Charter) rights, and not on the impact of state misconduct upon the criminal trial
Total sum, and not the average, of the seriousness of the (Charter) infringing conduct and the impact of the breach on the (Charter) protected interests of the accused determined the pull towards exclusion of evidence
More serious the state-infringing conduct and the greater the impact on the (Charter) protected interests, the stronger the case for exclusion
Where such inquiries, taken together, made a strong case for exclusion, society's interest in an adjudication of the case on its merits would seldom if ever tip the balance in favour of admissibility
When considering the first line of inquiry - 'the seriousness of the (Charter) infringing conduct' - for state misconduct to be excused as a good faith(and, therefore, minor) infringement of (Charter) rights, the state must show that the police conducted themselves in a manner consistent with what they subjectively, reasonably and non-negligently believed to be the law
Second line of inquiry - 'the impact on the (Charter) protected interests of the accused' - entailed asking whether and to what extent, in the totality of the circumstances, the (Charter) breach actually undermined the interests protected by the right infringed
Third line of inquiry - 'society's interest in adjudication of the case on its merits' - typically pulled toward inclusion of the evidence
Courts must be careful to dissociate themselves and their trial processes from the violation of longstanding constitutional norms reflected in the Court's (Charter) jurisprudence that had emphasized the importance of individuals' liberty interests.
If two distinctive inter-pretations or explanations of law and facts were available, the one which favoured accused, must be followed.
Question as to whether 'unlawful confinement' and 'murder' of the victim was part of the same transaction justifying a conviction for 'first degree murder'
Victim, who was six years old, died at the home of her father and stepmother ('accused persons')
Victim was allegedly burned, forced for hours to run up and down the stairs as a form of punishment, and severely beaten because of which she suffered damage to her internal organs, and a subdural hematoma and cerebral swelling caused by blows to the head
Accused persons did not seek medical attention for the victim until she was in complete cardiac and respiratory failure
Accused persons were charged for unlawfully confining the victim while inflicting fatal injuries on her, and were accordingly convicted of first degree murder by the Court of Appeal
Held, that physical abuse of the victim and coercive directions given to her by her parents continued until her injuries rendered her unconscious
Victim was confined and coercively restrained and directed contrary to her wishes
Such confinement was clearly unlawful
Acts of "discipline" were grossly disproportionate, cruel, degrading, deliberately harmful, and far exceeded any acceptable form of parenting
Unlawful confinement and murder of victim were two distinct criminal acts that formed part of a single transaction
Unlawful confinement and the assaults leading to victim's death were part of the same single transaction of coercion and abuse, and the unlawful confinement persisted right up to the moment victim lost consciousness
Not all acts of violence against the victim were tied to the fatal blows, some of the assaults that met the causation standard for the murder were distinct from the acts of confinement
Moreover the assaults against the victim were part, but not all, of what established the unlawful confinement, since the confinement also involved non-physical acts of coercion
Act of unlawful confinement of the victim was, therefore, not consumed in the act of her killing
Accused persons had been rightly convicted of first degree murder
Appeals were dismissed accordingly.
Legal standard for proving unlawful confinement was the same for children as for adults, but in the case of a parent-child relationship, courts must keep in mind that children were inherently vulnerable and dependent, and routinely received and expected directions from their parents
Prosecution does not have to prove some special or extreme form of confinement in cases involving parents and their children
Finding of confinement did not require evidence of a child being physically bound or locked up; it could also result from evidence of controlling conduct
Although parents were lawfully entitled to restrict the liberty of their children in accordance with the best interests of the child, if a parent engaged in abusive or harmful conduct toward his or her child that surpassed any acceptable form of parenting, the lawfulness of his or her authority to confine the child ceased
Disciplining a child by restricting his or her ability to move about freely, by physical or psychological means, contrary to the child's wishes, which exceeded the outer bounds of punishment that a parent or guardian could lawfully administer, constituted unlawful confinement.
Unlawful confinement occurred if for any significant period of time [the victim] was coercively restrained or directed contrary to his/her wishes, so that he/she could not move about according to his/her own inclination and desire
Unlawful confinement consisted of restricting the victim's liberty, but not his or her ability to escape
Restriction need not be to a particular place or involve total physical restraint
Restraint of the victim through physical acts of violence was sufficient but not necessary to establish unlawful confinement
Confinement could be effected by fear, intimidation and psychological and other means.
Accused accepting benefits from a company as consideration for assisting the company in selling its products by using his Government contacts
Question as to whether assistance accused promised to provide was in connection with any matter of business relating to government
"Any matter of business relating to the government"
Meaning
Accused was former senior advisor in the Office of the Prime Minister
Year following his departure from this position, he agreed to use his government contacts to help a company sell water treatment systems to an indigenous community
In exchange, the company promised to pay a commission to accused's then girl friend
After the agreement was made, accused spoke to government officials in order to promote the purchase of company's products and sought to convince the relevant Government department to set up a project whereby it would fund the purchase of company's products to pilot them in indigenous communities
Section 121(1)(d)(i) of the Criminal Code (of Canada) criminalized the selling of influence in connection with any matter of business relating to the government
Accused was charged with influence peddling under S. 121(1)(d) and at trial, he took the position that his assistance was not in connection with a matter of business relating to the government
Trial judge agreed and acquitted him on the basis that the indigenous community, rather than Government, decided whether to purchase the type of water treatment systems sold by the company
Court of Appeal however, set aside the acquittal, and entered a verdict of guilty and remitted the matter to the Trial judge for sentencing
[Per Karakatsanis, J (Majority view): held, that by criminalizing influence peddling, S. 121(1)(d) of the Criminal Code (of Canada) strived to preserve both Government integrity and the appearance of Government integrity; it helped ensure that Government activity was driven by the public interest and promoted confidence in the democratic process
Section 121(1)(d) created a conduct offence
Offence was complete once the accused demanded a benefit in exchange for a promise to exercise influence in connection with a matter of business that related to Government
Accused did not need to actually have influence with the Government, endeavoured to exercise influence, or succeeded in influencing Government to be found guilty of said offence
Relevant constituent elements of the offence were: having or pretending to have influence with the Government, a minister, or an official; directly or indirectly demanding, accepting, or offering or agreeing to accept a reward, advantage or benefit of any kind for oneself or another person; as consideration for the cooperation, assistance, exercise of influence, or an act or omission; in connection with a transaction of business with or any matter of business relating to the Government
Offence under S. 121(1)(d)(i) required that the promised influence be in fact connected to a matter of business that related to Government
Simply showing that the accused accepted a benefit in exchange for promising to influence Government did not suffice to make out the offence
Nevertheless, the phrase "any matter of business relating to the government" must be interpreted broadly
Any matter of business related to the Government if it depended on Government action or could be facilitated by the Government, given its mandate
Matters of business relating to the Government included publicly funded commercial transactions for which the Government could impose or amend terms and conditions that would favour one vendor over others
Phrase "any matter of business relating to the government" must not be restricted to matters of business that could be facilitated by Government under its existing operational structure
Offence in question captured promises to exercise influence to change or expand Government programs
In the present case accused's promised assistance was in connection with a matter of business relating to the Government
Federal Government had the authority to provide services, including clean drinking water, on reserves for indigenous communities, therefore, it could have facilitated the sale of company's products to such communities
Although, at the time of the offence, indigenous communities could have purchased systems such as the company's with Government funds without obtaining Government's prior approval, the Government could have changed its mode of operations, modified its funding structure or terms and conditions, or created new pilot projects in a manner favorable to the company
Further, it was clear that the accused believed, at the time he made the agreement, that the sale of company's products to indigenous communities could be facilitated by the Government
By demanding a benefit in exchange for his promise to exercise his influence with the Government to the company's advantage, the accused undermined the appearance of Government integrity, therefore, he was guilty of influence peddling contrary to S. 121(1)(d)(i) of the Criminal Code (of Canada)
Present case should be remitted to the Trial judge for sentencing]
[Côté, J. dissenting (Minority view): Scope of S. 121(1)(d) should be limited to matters of business that depended on some Government approval or action within existing operational structures of Government
Any relationship between the matter of business concerned and the Government must exist at the time of the corrupt agreement
Where the Government had intentionally placed matters of business outside of its operational reach, they could not be said to be matters of Government business simply because the Government could, at a future date, reclaim control over them
Matter of business would relate to the Government only if the operational structures in place at the time of the corrupt agreement were such that it depended on some Government approval or action
Agreement between the accused and the company was not made in connection with a matter of business relating to the Government
Matter of business contemplated by the agreement was the sale of point-of-use water treatment systems to indigenous communities
As the Federal Government had, at the time of the corrupt agreement, granted indigenous communities complete autonomy with regard to the purchase of point-of-use water treatment systems, the corrupt agree-ment could not be said to be in connection with a matter of business relating to the Government
Accused had to be acquitted in such circumstances]
Appeal against conviction was dismissed.
Principle of safe administration of criminal justice provided that in such a situation the accused was to be charged for the offence carrying the lesser punishment.
Person aiding or abetting another in an act was privy to the act itself but a beneficiary takes benefit or advantage of the act after the event and he may not necessarily be a party to the act itself.
Fundamentals of criminal law are based on the principles of justice, equity and good conscience, and the same provide adequate guidelines for the formulation of a rational penal policy
Functioning of the criminal justice system is wide enough to achieve its goals and objectives
Ultimate goal of criminal law is undoubtedly to make the society safer for its citizens.
While interpreting statute on criminal law, every endeavour was to be made to resolve discretionary powers in favour of accused, but it was important that; such interpretation should not be blown out of proportion, culminating into startling consequences of anarchy and chaos; confronting, the country due to lawlessness
Such exercise could not be undertaken, in disregard of very object of putting in place the penal laws, lest it could defeat their purpose.
Scope.
[Appeal (criminal)).
"Criminal Law", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/21349
Precedents & Case Laws citing "Criminal Law"
P L D 1992 Quetta I
and another‑‑Petitioners Versus PAKISTAN through SECRETARY, MINISTRY OF HOME,
Court:P L D 1964 (W
Mir SAJJAD HUSSAIN‑Petitioner Versus Sahibzada MUHAMMAD MAHBOOB ABBASI, ETC. — Respondents
Court:2007 S C M R 1942
FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad — Petitioner Versus ZAFAR AWAN — Respondent
Court: Shariat Appellate Jurisdiction2008 M L D 3
AHMAD NAWAZ — Petitioner Versus THE STATE and 2 others — Respondents
Court: LahoreP L D 1971 Supreme Court 124
MANSAB ALI-Appellant Versus AMIR AND 3 OTHERS-Respondents
Court: (a) West Pakistan Criminal Law (Amendment) Act (VII of 1963) as amended, Ss. 3 & 18-Reference to Tribunal-Accused entitled to be heard before reference could be made under S. 3 - Order made without affording opportunity of hearing - Void ab initio-All subsequent proceedings illegal-Mere fact that accused in his revision against order failed to raise objections in this behalf-Would not validate order.P L D 1959 (W
ALAM KHAN‑Appellant Versus THE STATE‑Respondent
Court:P L D 1954 Lahore 434
MUHAMMAD CHIRAGH‑Petitioner Versus THE CROWN
Court:1985P Cr
AHMAD JAVED‑‑Petitioner Versus THE STATE‑‑Respondent
Court: LahoreP L D 1991 Supreme Court 202
SAFDAR ALI and others‑‑Petitioners Versus THE STATE and another‑‑Respondents
Court: ‑‑‑S. 310 as substituted by Criminal Law (Second Amendment) Ordinance (VII of 1990), S. 4‑‑‑Compounding of qisas (sulah) in qatl‑i‑amad‑‑‑Adult sane wali may, at any time on accepting badal‑i‑sulah, compound his right of qisas.1983 P Cr
ABDUL RASHID‑Appellant Versus THE STATE‑Respondent
Court: Karachi