Legal Advise

Divorce by Text Message

noreply@blogger.com (Anonymous) — Fri, 20 Sep 2013 16:09:00 +0000

In Tajikistan, religious authorities banned the use of text messages by Muslim men to divorce their wives. To those not familiar with the practice, this may seem an odd thing to worry about. But divorce by text message has become a problem in Tajikistan because an increasing number of migrant workers there are not returning to their countries of origin and so need a remote method to divorce their wives from home. Text messaging specifically impacts Muslims seeking a divorce because they are being used to issue the “triple talaq,” the process by which a husband ends a marriage by stating his desire for divorce three times.

However, although the modern technology may be convenient, according to Abdurakhim Kholiov, the head of the Tajik religious affairs committee, the use of text messages in this way violates Islamic law and thus is the target of a fatwa. Tajikistan is not the first country that has had to address the issue of divorce by text message specifically–and the role of new technology in religion in general. In fact, this has been an issue of debate in Egypt, Malaysia, Singapore, the United Arab Emirates, Qatar, and Saudi Arabia.

In Islam, marriage is considered to be a sacred union. It is described in the Qur’an in chapter 4 verse 21 as “a solemn covenant” (mithaaq ghalidh) and the reason for it is mentioned in an often cited verse:

And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts): verily in that are Signs for those who reflect. (Chapter 30 verse 21 )

Thus the focus of marriage in Islam is mainly about the creation of bonds between human beings.

This relationship, however, is also described in Islamic law in contractual terms. In other words, it is a civil contract between a man and a woman, according to Mahmoud Hoballah in Understanding Islamic Law: From Classical to Contemporary. Thus, like other contracts it has certain conditions that must be met to be valid and additional stipulations can be added if agreed upon.

Even though marriage is considered to be sacred, divorce is permitted in Islam if reconciliation is impossible; however, it should be the last resort and in a hadith, the Prophet Muhammad is recorded to have said, “Of all lawful acts, divorce is the most detestable to Allah.”

Just as marriage has conditions, divorce also has conditions that must be met. The overall condition is maintaining kindness and dignity, which is made clear in chapter 2 verse 229:

A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others).

As stated in this verse, both parties are not to transgress the boundaries of God by harming the other or taking advantage of them.

It is for this reason that some have spoken out against the use of text-message divorce saying that it violates the spirit of parting with kindness, since it ends a sacred union in a callous manner. Moreover, it prevents the possibility of reconciliation that is supposed to precede any movement towards divorce. Finally, it is considered by some, like Ibrahim Negm, the spokesman for the Grand Mufti of Al-Azhar Ali Gomaa, to represent “a clear-cut abuse of the law.” Besides Tajikistan, Singapore banned the practice in 2001. Hopefully, more countries will follow the lead of Tajikistan and Singapore, and protect the rights of Muslim women that are clear in the faith but neglected by its followers.

What do you think about text-message divorces? Do you think they violate the spirit of Islam? How should new technologies be incorporated into a faith without leading to abuses? Please share your comments below.

Kidnapping or Abduction or Force Labour under Pakistan Penal Code

noreply@blogger.com (Anonymous) — Wed, 18 Sep 2013 13:20:00 +0000

364-A. Kidnapping or abducting a person under the age of fourteen:

Whoever kidnaps or abducts any person under the i[age of fourteen] in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years.

365. Kidnapping or abducting with intent secretly and wrongfully to confine person:

Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

365-A. Kidnapping or abducting for extorting property, valuable security, etc.:

Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property.

S. 365-A adde d by th e Criminal Law (Amendment) Act, III of 1990,

366. Kidnapping, abducting or inducing woman to compel her marriage, etc.: [Rep. by the Offence of Zina (Enforcement of Hudood) Ordinance, Vfl of 1979, S. 19.]

366-A. Procuration of minor girl:

Whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

Sec. 366-A ins, b y the Pena l Code (Amendment) Act, XX of 1923.

366-B. Importation of girl from foreign country :

Whoever imports into Pakistan from any country outside Pakistan any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

Sec. 366-B subs. by the Federal Laws (Revision and Declaratio n) Ordinance. XXVII of 1981.

367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.:

Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery or knowing it to be likely that such person will be so subjected or disposed of shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person:

Whoever knowing that any person has been kidnapped or has been abducted wrongfully conceals or confines such person shall be punished in the same manner as if he had kidnapped or abducted Such person with the same intention or knowledge, or for the same purposes as that with or for which he conceals or detains such person in confinement.

369. Kidnapping or abducting child under ten years with intent to steal from its

person :

Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

370. Buying or disposing of any person as a slave:

Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with impr isonment of either description for a term which may extend to seven years, and shall also be liable to fine.

371. Habitual dealing in slaves:

Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves. Shall be punished with imprisonment for life, or with imprisonment of either description for a term not exceeding ten years, shall also be liable to fine.

372. Selling minor for purposes of prostitution, etc.: [Repealed by the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, S. 19.]

373. Buying minor for purposes of prostitution, etc.: [Repealed by the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, S. 19.]

374. Unlawful compulsory labour:

(1) Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to 1 [five] years or with fine, or with both.

(2) Whoever compels a prisoner of war or a protected person to serve in the armed forces of Pakistan shall be punished with imprisonment of either description for a term which may extend to one year.

Explanation: In this section the expression "prisoner of war" and "protected person" shall have the same meanings as have been assigned to them respectively by Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, and Article 4 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, ratified by Pakistan on the second June, 1951].

Of Rape

375.Rape: [Repealed by • the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, S. 19].

376.Punishment of rape: [Repealed by the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, S. 19].

Assault or Criminal Force under Pakistan Penal Code

noreply@blogger.com (Anonymous) — Wed, 18 Sep 2013 13:06:00 +0000

Sec.352.Punishment for Assault or Criminal Force Otherwise Than on Grave Provocation :

Whoever assaults or uses criminal force to any person otherwise than on grave and

sudden provocation given by that, person, 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.

Explanation: Grave and sudden provocation will not mitigate the punishment for the offence under this section, if the provocation is sought or voluntarily provoked by the offender as ah excuse for the offence, or if the provocation is given by anything done in obedience to the law or by, a public servant, in the lawful exercise of the powers such public servant, or if the provocation is given by anything done in the lawful exercise of the right of private defence. Whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact.

Wrongful Confinement under Sec.345 of Pakistan Penal Code

noreply@blogger.com (Anonymous) — Wed, 18 Sep 2013 12:48:00 +0000

Sec.345. Wrongful Confinement of Person for whose Liberation writ, has been Issued:

Whoever keeps any person in wrongful c onfinement, knowing that a writ for the liberation of that person has been duly issued, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to any term of imprisonment to which he may be liable under any other section of this Chapter.

Sec.346. Wrongful confinement in secret:

Whoever wrongfully confines any person in such manner as to indicate an intention that the confinement of such person may not be known to any person interested in the person so confined, or to any public servant, or that the place of such confinement may not be known to or discovered by any such person of public servant as hereinbefore mentioned, shall be punished with imprisonment of either

description for a term which may extend to two years in addition to any other punishment to which he may be liable for such wrongful confinement.

Sec.347. Wrongful confinement to extort property or constrain to illegal act:

wrongfully confines any person for the purpose of extorting from the person confined, or Whoever from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Sec.348.Wrongful confinement to extort confession or compel restoration of property:

Whoever wrongfully confines any person for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Hurt and Injuries Under Sec.337 of Pakistan Penal Code

noreply@blogger.com (Anonymous) — Wed, 18 Sep 2013 12:36:00 +0000

Sec.337. Shajjah :

(1) Whoever causes, on the head or face of any person, any hurt which does not amount to itlaf-i-udw or itlaf-i-salahiyyat-i-udw, is said to cause shajjah.

(2) The following are the kinds of shaljah namely:-

(a) Shajjah-i-Khafifah

(b) Shalfah-i-mudihah

(d) Shajjah-i-munaqqilah

(e) Shaijah-i-ammah and

(f) Shajjah-i-damighah

(3) Whoever causes shajjah

(i) without exposing bone of the victim, is said to cause shajjah-i-khafifah;

(ii) by exposing any bone of the victim without causing fracture, is said to cause shajjah-i-mudihah;

(iii) by fracturing the bone of the victim, without dislocating it, is said to cause shajjah-i-hashimah;

(iv) by causing fracture of the bone of the victim and thereby the bone is dislocated, is said to cause shajfah-i-munaqqilah;

(v) by causing fracture of the skull of the victim so that the wound touches the membrane of the brain, is said to cause shajjah-i-ammah;

(vi) by causing fracture of the skull of the victim and the wound ruptures the membrane of the brain is said to cause shaijah-i-damighah.

Sec.337-A. Punishment of shajjah :

Whoever, by doing any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes--

(i) Shajjah-I-khafifah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to two years as ta'zir,

(ii) shajjah-i-mudihah to any person, shall, in consultation with the authorised medical officer, be punished with qisas, and if the, qisas is not executable keeping in view the principles of equality, in accordance with the Injunctions of Islam, the convict shall be liable to arsh which shall be five percent of the diyat and may also be punished with imprisonment of either description for a term which may extend to five years as ta'zir,

(iii) shajjah-i-hashimah to any person, shall be liable to arsh which shall be ten per cent of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta'zir,

(iv) shajiah-i-munaqqilah to any person, shall be liable to arsh which shall be fifteen per cent of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta 'zir,

(v) shajjah-i-ammah to any person, shall be liable to arsh which shall be one-third of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta'zir, and

(vi) shajjah-i-damighah to any person shall be liable to arsh which shall be one-half of diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as ta'zir.

Sec.337-B. Jurh:

(1) Whoever causes on any part of the body of a person, other than the head or face, a hurt which leaves a mark of the wound, whether temporary or permanent,is said to cause jurh.

(2) Jurh is of two kinds, namely:-

(a) Jaifah ; and

(b) Ghayr-jaifah

Sec.337-C. Jaifah :

Whoever causes jurh in which the injury extends to the body cavity of the trunk, is said to cause jaifah.

Sec.337-D. Punishment for jaifah :

Whoever by doing any act with the intention of causing hurt to a person or with the knowledge that he is likely to cause hurt to such person, causes jaifah to such person, shall be liable to arsh which shall be one-third of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta'zir.

Sec.337-E. Ghayr-jaifah :

(1) Whoever causes jurh which does not amount to jaifah, is said to cause ghayr-jaifah.

(2) The following are the kinds of ghayr-faifah, namety:-

(a) damihah

(b) badi'ah

(d) mudihah

(e) hashimah ; and

(f) munaqqilah

(3) Whoever causes ghayr-jaifah—

(i) in which the.skin is ruptured and bleeding occurs, is said to cause damiyah;

(ii) by cutting or incising the flesh without exposing the bone, is said to cause badi'ah;

(iii) by lacerating the flesh, is said to cause mutalahimah',

(iv) by exposing the bone, is said to cause mudihah;

(v) by causing fracture of a bone without dislocating it, is said to cause hashimah; and

(vi) by fracturing and dislocating the bone, is said to cause munaqqilah.

Sec.337-F. Punishment of ghayr-jaifah :

Whoever by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes"

(i) damihah to any person, shall be liable to daman and may also be punished with

imprisonment of either description for a term which may extend to one year as ta'zir,

(ii) badi'ah to any person, shall be liable to daman and may also be punished with

imprisonment of either description for a term which may extend to three years as ta'zir,

(iii) mutafahimah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to three years as ta'zir;

(iv) mudihah to any person, shall be liable to daman and may also be punished with

imprisonment of either description for a term which may extend to five years as ta'zir,

(v) hashimah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to five years as ta'zir, and

(vi) munaqqilah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to seven years as ta'zir.

Sec.337-G. Punishment for hurt by rash or negligent driving:

Whoever causes hurt by rash or negligent driving shall be liable to arsh or daman specified for the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to five years as ta'zir.

Sec.337-H. Punishment for hurt by rash or negligent act:

(1) Whoever causes hurt by rash or negligent act, other than rash or negligent driving, shall be liable to arsh or daman specified for the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to three years as ta'zir.

(2) Whoever does any act so rashly or negligently as to endanger human life or the

personal safety of other, shall be punished with imprisonment of either-description for a term which may extend to three months, or with fine, or with both.

Sec.337-I. Punishment for causing hurt by mistake (khata):

Whoever causes hurt by mistake (khata) shall be liable to arsh or daman specified for the kind of hurt caused.

Sec.337-J. Causing hurt by mean of a poison:

Whoever administers to. or causes to be taken by, any person, any poison or any stupefying, intoxicating or unwholesome drug, or such other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence, or knowing it to be likely that he will thereby cause hurt may, in addition to the punishment of arsh or daman provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years.

Sec.337-K. Causing hurt to extort confession, or to compel restoration of property:

Whoever causes hurt for the purpose of extorting from the sufferer or any person

interested in the sufferer any .confession or any information which may lead to the

detection of any offence or misconduct, or for the purpose of constraining the sufferer, or any person interested in the Sufferer, to restore, or to cause the restoration of, any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property, or valuable security shall, in addition to the punishment of qisas, arsh or daman, as the case may be, provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years as ta'zir.

Sec.337-L. Punishment for other hurt:

(1) Whoever causes hurt, not mentioned hereinbefore, which endangers life or which causes the sufferer to remain in severe bodily pain for twenty days or more or renders him unable to follow his ordinary pursuits for twenty days or more, shall be liable to daman and also be punished with imprisonment of either description for a term which may extend to seven years.

(2) Whoever causes hurt not covered by sub-section (1) shall be punished with

imprisonment of either description for a term which may extend to two years, or with daman, or with both.

Sec.337-M. Hurt not liable to qisas:

Hurt shall not be liable to qisas in the following cases, namely:-

(a) when the offender is a minor or insane:

Provided that he shall be liable to arsh and also to ta'zir to be determined by the Court having regard to the age of offender, circumstances of the case and the nature of hurt caused;

(b) when an offender at the instance of the victim causes hurt to him:

Provided that the offender may be liable to ta'zir provided for the kind of hurt caused by him;

(c) when the offender has caused itlaf-i-udw of a physically imperfect organ of the victim and the convict does not suffer from similar physical imperfection of such organ:

Provided that the offender shall be liable to arsh and may also be liable to ta'zir provided for the kind of hurt caused by him; and

(d) when the organ of the offender liable to qisas is missing:

Provided that the offender shall be liable to arsh and may also be liable to ta'zir provided for the kind of hurt caused by him.

Illustrations

(i) A amputates the right ear of Z, the half of which was already missing. If A's right ear is perfect, he shall be liable to arsh and not qisas.

(ii) If in (he above illustration, Z's ear is physically perfect but without power of hearing, A shall be liable to qlsas because the defect in Z's ear is not physical.

(iii) lf in illustration (i) Z's ear is pierced, A shall be liable to qisas because such minor defect is not physical imperfection.

Sec.337-N. Cases in which qisas for hurt shall not be enforced:

(1) The qisas for a hurt shall not be enforced in the following cases, namely :-

(a) when the offender dies before execution of qisas;

(b) when the organ of the offender liable to qisas is lost before the exec ution of qisas:

Provided that offender shall be liable to arsh, and may also be liable to ta'zir provided for the kind of hurt caused by him;

(d) when the right of qisas devolves on the person who cannot claim qisas against the offender under this Chapter:

Provided that the offender shall be liable to arsh, if there is any wali other than the

offender, and if there is no wali other than the offender he shall be liable to ta'zir provided for the kind of hurt caused by him.

(2) Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal.

Sec.337- O. Wali In case of hurt: In the case of hurt:

The wali shall be-

(a) the victim:

Provided that, if the victim is a minor or insane, his right of qisas shall be exercised by his father or paternal grand father, howhighsoever;

(b) the heirs of the victim, if the later dies before the execution of qisas: and

Sec.337-P. Execution of qisas for hurt:

(1) Qisas shall be executed in public by an authorised medical officer who shall before such execution examine the offender and take due care so as to ensure that the execution of qisas does not cause the death of the offender or exceed the hurt caused by him to the victim.

(2) The wali shall be present at the time of execution and if the wali or his representative is not present, after having been informed of the date, time and place by the Court an officer authorised by the Court in this behalf shall give permission for the execution of qisas.

(3) If the convict is a woman who is pregnant, the Court may, in consultation with an authorised medical officer, postpone the execution of qisas upto a period of two years after the birth of the child and during this period she may be released on bail on furnishing of security to the satisfaction of the Court or, if she is not so released, shall be dealt with as if sentenced to simple' imprisonment.

Sec.337-Q. Arsh for single organs:

The arsh for causing itlaf of an organ which Is found singly in a human body shall be equivalent to the value of diyat.

Explanation: Nose and tongue are included in the organs which are found singly in a human body.

Sec.337-R. Arsh for organs in pairs :

The arsh .for causing itlaf of organs found in a human body in pairs shall be equivalent to the value of diyat and if itlaf is caused to one of such organs the amount of arsh shall be one-half of the diyat:

Provided that, where the victim has only one such organ or his other organ is missing or has already 'become incapacitated the arsh for causing itlaf of the existing or capable organ shall be equal to the value of diyat.

Explanation: Hands, feet, eyes, lips and breasts are included in the organs which are found in a human body in pairs.

Sec.337-S. Arsh for the organs in quadruplicate:

(1)The arsh for causing itlaf of organs found in a human body in a set of four shall be equal to:

(a) one-fourth of the diyat, if the itlaf is one of such organs; ...

(b) one-half of the diyat, if the itlaf is of two of such organs; .

(d) full diyat, if the itlaf is of all the four organs.

Explanation: Eyelids are organs which are found in a human body in a set of four.

Sec.337-T. Arsh for fingers:

(1) The arsh for causing itlaf of a finger of a hand or foot shall be one-tenth of the diyat.

(2) The arsh for causing itlaf of a joint of a finger shall be one-thirteenth of the diyat:

Provided that where the itlaf is of a joint of a thumb, the arsh shall be one-twentieth of the diyat.

Sec.337-U. Arsh for teeth :

(1) The arsh for causing itlaf of a tooth, other than a milk tooth, shall be one-twentieth of the diyat.

Explanation: The impairment of the portion of a tooth outside the gum amounts to causing itlaf of a tooth.

(2) The arsh for causing itlaf of twenty or more teeth shall be equal to the value of diyat.

(3) Where the itlaf is of a milk tooth, the accused shall be liable to daman and may, also be punished with imprisonment of either description for a term which may extend to one year:

Provided that, where itlaf of a milk tooth impedes the growth of. a new tooth, the accused shall be liable to arsh specified in sub-section (1).

Sec.337-V. Arsh for hair:

(1) Whoever uproots;

(a) all the hair of the head, beard, moustaches eyebrow, eyelashes or any other part of the body shall be liable to arsh equal to diyat and may also be punished with imprisonment of either description for a term which may extend to three years as ta'zir,

(b) one. eyebrow shall be liable to arsh equal to one- half of the diyat; and

(2) Where the hair of any part of the body of the victim are forcibly removed by any process not covered under sub section (1), the accused shall be liable to daman and imprisonment of either description which may extend to one year.

Sec.337-W. Merger of arsh :

(1) Where an accused more than one hurt, he shall be liable to arsh specified for each hurt separately:

Provided that, where;

(a) hurt is caused to an organ, the accused shall be liable to arsh for causing hurt to such organ and not for arsh for causing hurt to any part of such organ and

(b) the wounds join together and form a single wound, the accused shall be liable to arsh for one wound.

Illustrations

(i) A amputates Z's fingers of the right hand and then at the same time amputates that

hand from the joint of his writs. There is separate arsh for hand and for fingers. A shall, however, be liable to arsh specified for hand only.

(ii) A twice stabs Z on his thigh. Both the wounds are so close to each other that they form into one wound. A shall be liable to arsh for one wound only.

(2) Where, after causing hurt to a person, the offender causes death of such person by committing qatl liable to diyat, arsh shall merge into such diyat.

Provided that the death is caused before the healing of the wound caused by such hurt.

Sec.337-X. Payment of arsh :

(1) The arsh may be made payable in a lump sum or in instalments spread over a period of three years from the date of the final judgment.

(2) Where a convict fails to pay arsh or any part thereof within the period specified in sub-section (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until ars h is paid in full may be released on bail if he furnishes security equal to amount of arsh to the satisfaction of the Court.

(3) Where a convict dies before the payment of arsh any part thereof, it shall be recovered from his estate.

Sec.337-Y. Value of daman :

(1) The value of daman may be determined by the Court keeping in view:-

(a) the expenses incurred on the treatment of victim;

(b) loss or disability caused in the functioning or power of any organ; and

(2) In case of non-payment of daman, it shall be recovered from the convict and until daman is paid in full to the extent of his liability, the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment or may be released on bail if he furnishes security equal to the amount of daman to the satisfaction of the Court.

Sec.337-Z. Disbursement of arsh or daman:

The arsh or daman shall be payable to the victim or, if the victim dies, to his heirs according to their respective shares in inheritance.

Attempt to Commit Qatl and Attempt to Commit Suicide Under PPC

noreply@blogger.com (Anonymous) — Wed, 18 Sep 2013 11:53:00 +0000

Sec.324. Attempt to commit qatl-i-amd:

Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by. that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment for either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall, in addition to the imprisonment and fine as aforesaid, be liable to the punishment provided for the hurt caused:

Provided that. where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.

Sec.325. Attempt to commit suicide:

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Murder (Qatl) Offences Affecting the Human Body under PPC

noreply@blogger.com (Anonymous) — Tue, 17 Sep 2013 14:21:00 +0000

CHAPTER XVI

OF OFFENCES AFFECTING THE HUMAN BODY

Of offences Affecting Life

Sec.300. Qatl-e-Amd :

Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it

must in all probability cause death, causes the death of such person, is said to commit qatl-e-amd.

Sec.301.Causing death of person other than the person whose death was intended :

Where a person, by doing anything which he intends or knows to be likely to cause death, causes death of any person whose death he neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be liable for qatl-i-amd.

Sec.302. Punishment of qatl-i-amd :

Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter be:

(a) punished with death as qisas;

(b) punished with death for imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or

(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is tot applicable.

Sec.303. Qatl committed under ikrah-i-tam or ikrah-i-naqis :

Whoever commits qatl:

(a) under Ikrah-i-tam shall be punished with imprisonment for a term which may extend to twenty-five years but shall not be less than ten years and the person causing 'ikrah-i-tam' shall be punished for the '.kind of Qatl committed as a consequence of ikrah-i-tam; or

(b) under 'ikrah-i-naqis' shall be punished for the kind of Qatl committed by him and the person, causing 'ikrah-i-naqis, shall be punished with imprisonment for a term which may extend to ten years.

Sec.304. Proof of qatl-i-amd liable to qisas, etc.:

(1) Proof of qatl-i-amd shall be in any of the following forms, namely: -

(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or

(b) by the evidence as provided in Article 17 of the Qanun-e-Shalladat, 1984 (P.O. No. 10 of 1984).

(2) The provisions of sub-section (1) shall, mutatis, mutandis, apply to a hurt liable to qisas.

Sec.305. Wali:

In case of qatl, the wali shall be--

(a) the heirs of the victim, according to his personal law; and

(b) the Government, if there is no heir.

Sec.306. Qatl-e-amd not liable to qisas :

Qatil-i-Amd shall not be liable to qisas in the following cases, namely:--

(a) when an offender is a minor or insane:

Provided that, where a person liable to qisas associates himself in the commission of the offence with a person not liable to qisas, with the intention of saving himself from qisas, he shall not be exempted from qisas;

(b) when an offender causes death of his child or grand-child, howlowsoever'; and

Sec.307. Cases in which Qisas for qatl-i-amd shall not be enforced:

(1) Qisas for qatl-i-amd, shall not be enforced in the following cases, namely:--

(a) when the offender dies before the enforcement of qisas;

(b) when any wali voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under Section 309 or compounds under Section 310 and

(c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on , the person who has no right of qisas against the offender., .

(2) To satisfy itself that the wali has waived the right of qi'sas under Section 309 or

compounded the right of qisas under Section 310 voluntarily and without duress the Court shall take down the statement of the wali and such other persons as it may deem necessary on oath and .record an opinion that it is satisfied that the Waiver or, as the case may be, the composition, was voluntary and not the result of any duress.

Illustrations

(i) A kills Z, the maternal uncle of his son B. Z has no other wali except D the wife of A. D has the right of qisas from A but if D dies, the right of qisas shall devolve on her son B who is also the son of the offender A. B cannot claim qisas against his father. Therefore, the qisas cannot be enforced.

(ii) B kills Z, the brother of their husband A. Z has no heir except A. Here A can claim qisas from his wife B. But if A dies, the right of qisas shall devolve on his son D who is also son of B, the qisas cannot be enforced against B.

Sec.308. Punishment in qatl-i-amd not liable to qisas, etc.:

(1) Where an offender guilty of qatl-i-amd is not liable to qisas under Section 306 or the gisas is not enforceable under clause (c) of Section 307, he shall be liable to diyat:

Provided that, where the offender is minor or insane, diyat shall be payable either from his property or, by such person as may be determined by the Court:

Provided further that where at the time of committing qatl-i-amd the offender being a minor, had attained sufficient maturity of being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as ta'zir.

Provided further that, where the qisas is not enforceable under clause (c) of Section 307, the offender shall be liable to diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as ta'zir.

(2) Notwithstanding anything contained in sub-section (i), the Court, having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as ta'zir.

Sec.309. Waiver (Afw) of qisas in qatl-i-amd :

In the case of qatl-i-amd, an adult sane wali may, at any time and without any compensation, waive his right of qisas:

Provided that the right of qisas shall not be waived;

(a) where the Government is the wali, or

(b) where the right of qisas vests in a minor or insane,

(2) Where a victim has more than one Wali any one of them may waive his right of qisas:

Provided that the wali who does not waive the right of qisas shall be entitled to his share of diyat.

(3) Where there are more than one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim.

(4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender.

Sec.310. Compounding of qisas (Sulh) in qatl-i-amd:

(1) In the case of qatl-i-amd, an adult sane wali may, at any time on accepting badl-i-sulh, compound his right of qisas:

Provided that giving a female in marriage shall not be a valid badl-i-sulh.

(2) Where a wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali:

Provided that the value of badf-i-sufh shall not be less than the value of diyat.

(3) Where the Government is the wali, it may compound the right of qisas:

Provided that fee value of badi-i-sulh shall not be less than the value of diyat.

(4) Where the badl-i-sufh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shari'ah, the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat.

(5) Badl-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali

Explanation: In this section, Badl-i-sulh means the mutually agreed compensation

according to Shari'ah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property

Offences Relating Religion,Holy Prophet,Holy Quran and Obscene

noreply@blogger.com (Anonymous) — Tue, 17 Sep 2013 13:23:00 +0000

294. Obscene acts and songs;

Whoever, to the annoyance of others, --

(a) does any obscene act in any public place, or

(h) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

294-A. Keeping lottery office:

Whoever keeps any office or place for the purpose of drawing any lottery not being a State lottery or a lottery authorized by the Provincial Government 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 publishes any proposal to pay any sum, or to deliver any goods, or to -do or forbear doing anything for the benefit of any person, on any event or contingency relative or applicable to the drawing of any ticket, lot, number or figure in any such lottery shall be punished with fine which may extend to one thousand rupees. Sec. 294-A ins- by the Pakistan Penal Code (Amendment) Act, XXVII of 1970

294-B. Offering of prize in connection with trade, etc.:

Whoever offers, or undertakes to offer, in connection with any trade or business or sale of any commodity, any prize, reward or other similar consideration, by whatever name called, whether in money or kind, against any coupon, ticket, number or figure, or by any other device, as an inducement or encouragement to trade or business or to the buying of any commodity, or for the purpose of advertisement or popularising any commodity, and whoever publishes any such offer, shall be punishable, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Sec. 294-B ins. by Pakistan P enal Code (Amendment) Act, XX of 1965.

CHAPTER XV

OF OFFENCES RELATING TO RELIGION

295. Injuring or defiling place of worship, with Intent to insult the religion of any class:

Whoever destroys, damages or defiles any place of worship, or any object held

sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction damage or defilement as an insult to their religion. shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

295-A. Deliberate and malicious acts Intended to outrage religious feelings of any class by insulting Its religion or religious beliefs:

Whoever, with deliberate and malicious intention of outraging the 'religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

Sec. 295-A ins. by the Crimin al Law (Amendment) Act, XXV of 1927

295-B. Defiling, etc., of Holy Qur'an :

Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur'an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.

Sec. 295-B added by P.P.C. (Amendment) Ordinance, I of 1982.

295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet:

Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Sec. 295-C ins. by the Criminal La w ( amendment) Act, 111 of 1986, S. 2

296. Disturbing religious assembly :

Whoever voluntarily c auses disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

297. Trespassing on burial places, etc.:

Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sculpture, or any place set apart for the performance of funeral rites or as a, depository for the remains of the dead, or offers any indignity to any human corpse or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

298. Uttering words, etc., with deliberate intent to wound religious feelings:

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.

298-A. Use of derogatory remarks, etc., in respect of holy personages:

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (peace be upon him), or any of the righteous Caliphs (Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy Prophet (peace be upon him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Sec. 298-A added b y the Pakistan Penal Code (Second Amendment) Ordinance, XLIV of 1980.

298-B. Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places:

(1) Any person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name who by words, either spoken or written, or by visible representation-

(a) refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as "Ameer-ul-Mumineen", "Khalifatul-Mumineen", Khalifa-tul-Muslimeen", "Sahaabi" or "Razi Allah Anho";

(b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace bi upon him), as "Ummul-Mumineen";

(c) refers to, or addresses, any person, other than a member of the family "Ahle-bait" of the Holy Prophet Muhammad (peace be upon him), as "Ahle-baft"; or

(d) refers to, or names, or calls, his place of worship a "Masjid"; shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

(2) Any person of the Qaudiani group or Lahori group (who call themselves "Ahmadis" or by any other name) who by words, either spoken or written, or by visible representation refers to the mode or form of call to prayers followed by his faith as "Azan", or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Sec. 298-B ins. by Anti-lslami c Activities of Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment)

Ordinance, XX of 1984

298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith :

Any person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Rioting under Pakistan Penal Code

noreply@blogger.com (Anonymous) — Tue, 17 Sep 2013 12:59:00 +0000

Sec.146. Rioting :

Whenever force or violenc e 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.

Sec.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.

Sec.148. Rioting, armed with deadly weapon:

Whoever is guilty of rioting, being armed with a 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.

Sec.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.

Sec.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.

Sec.151. Knowingly joining or continuing in assembly of five or more persons after it has 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 punished under Section 145.

Sec.152. Assaulting to obstructing public servant when suppressing riot, etc.:

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

Sec.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, lives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting 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 if rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Sec.109 of Pakistan Penal Code Punishment of Abetment

noreply@blogger.com (Anonymous) — Tue, 17 Sep 2013 12:46:00 +0000

Sec.109. Punishment of abetment if the Act abetted 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 this 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 of ta'zir specified for such offence including death.]

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 functions. 6 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 punishment as B.

(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in 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.

Pictures of Lawyers Movement for Independence of Judiciary in Pakistan

noreply@blogger.com (Anonymous) — Mon, 16 Sep 2013 14:58:00 +0000

Judicial Process of Pakistani Courts

noreply@blogger.com (Anonymous) — Mon, 16 Sep 2013 14:38:00 +0000

Pakistan Penal Code ( PPC ) in Short

noreply@blogger.com (Anonymous) — Mon, 16 Sep 2013 14:11:00 +0000

Pakistan Penal Code

The Pakistan Penal Code usually called PPC is a penal code for all offences charged in Pakistan. It was originally prepared by Lord Macaulay with a great consultation in 1860 on the behalf of the Government of British India as the Indian Penal Code. After the partition of India in 1947, Pakistan inherited the same code and subsequently after several amendments in different Governments, it is now mixture of Islamic and English Law. Presently, the Pakistan Penal Code is still in effect and can be amended by the Senate of Pakistan.

History

The draft of the (British) Indian Penal Code was prepared by the First Law Commission and it was chaired by Lord Macaulay. Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Suggestions were also derived from the French Penal Code and from Livingstone's Code of Louisiana. The draft underwent a very careful revision at the hands of Sir Barnes Peacock, Chief Justice, and puisne Judges of the Calcutta Supreme Court who were members of the Legislative Council, and was passed into law in 1860, unfortunately Macaulay did not survive to see his masterpiece enacted into a law.

Though it is principally the work of a man who had hardly held a brief, and whose time was devoted to politics and literature, it was universally acknowledged to be a monument of codification and an everlasting memorial to the high juristic attainments of its distinguished author. For example even cyber crimes can be punished under the code.

Important Features of PPC

Jurisdiction

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

Section 4

The provisions of this Code apply also to any offence committed by:-

(1) any citizen of Pakistan or any person in the service of Pakistan in any place without and beyond Pakistan;

(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.Extension of Code to extraterritorial offences.

Punishments

Section 53.

The punishments to which offenders are liable under the provisions of this Code are:

First, Qisas;
Second, Diyat;
Third, Arsh (Pre-specified Compensation);
Fourth, Daman (Compensation determined by court to be paid by the offender to the victim for causing hurt not liable to Arsh);
Fifth, Ta'zir;
Sixth, Death;
Seventh, Imprisonment for life;
Eighth, Imprisonment which is of two descriptions, namely:-

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

2. Simple;

Ninth, Forfeiture of property;

Tenth, Fine

First five punishments are added by amendments and are considered Islamic Punishments, and very few are setenced to these punishmentsso far.Anyone who is sentenced to first five punishments can appeal to Federal Shariat court.

Important Sections which are commonly used in daily prosecution:

109 Abetment

147/148 Punishment for Rioting and Armed with Deadly Weapon

294 Obscene Acts

295A Outraging Religious Beliefs

302 Qatl-e-amd (Intentional and Deliberate Murder)

324 Attempt to Commit Qatl-e-amd

337 Shujjah (Bodily hurts)

345 Wrongful Confinement

352 Punishment for Assault

365 Kidnapping

376 Rape

379 Theft

384 Extortion

392 Robbery

452 House trespass

504 Intentional insult

Pakistan Penal Code (Sec.121 to 171)

noreply@blogger.com (Anonymous) — Fri, 13 Sep 2013 12:14:00 +0000

THE PAKISTAN PENAL CODE

(ACT NO. XLV OF 1860)

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 shall also be liable to fine.

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

121-A. 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, or 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.
COMMENTARY
To overthrow lawful Government. Activities of. Conviction for. Challenge to. Special Judge has
formed a wrong view that a letter embodying sanction may itself be treated as a complaint.
Complaint has been defined in section 4 (1) of Cr.P.C. Omission to file complaint in terms of
Section 196, Cr.P.C. is not an irregularity curable under Section 537 of Cr.P.C., but an illegality.
In letter treated as complaint by trial Court, there is no mention of any sanction of offence
punishable under Section 121-A of PPC. Held: Trial of appellant has not been held under
Section 121-A of PPC in accordance with law and trial Court had no jurisdiction to proceed with
trial. Appeal accepted.8

122. Collecting arms, etc., with intention of waging war against Pakistan. Whoever collects
men, arms or ammunition or otherwise prepares to wage war with 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.

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.

123-A. 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 9[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, 9[abuse Pakistan or] condemn the creation of
Pakistan by virtue of the partition of India which was effected on the fifteenth day of August,
1947, or advocate the curtailment or abolition of the sovereignty of Pakistan in respect of all or
any of the territories lying 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.
10[123-B. Defining or unauthorisedly removing the National Flag of Pakistan from Government
Building etc. Whoever deliberately defiles [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.]

COMMENTARY
Conspiracy. Evidence as to conspiracy by chance witness and Leaves-droppers was not relied
upon.

124. Assaulting President, Governor, etc., with intention 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 or shorter terms 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 disloyally 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.

COMMENTARY
Sedition. In case of sedition, the test is whether words used had tenancy to arouse contempt or
hatred. Truth or falsity of matters is immaterial and may be an aggravating factor. The evidence
relating to truth or falsity is not only inadmissible but also is not to be taken into consideration
in not determining quantum of evidence.

125. Waging war against any [x x x] Power in alliance with Pakistan. Whoever wages war
against the Government of any [xxx] 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 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
depreciation, or makes preparations to commit depreciation, on the territories of any Power in
alliance or at a 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 depreciation, or acquired by such
depredation.

127. Receiving property taken by war or depreciation mentioned in Sections 125 and 126.
Whoever receives any property knowing the same to have been taken in 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 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 aids 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, solider, sailor or airman, in the Army,
Naval or Air Force of Pakistan, or attempts to seduce any such officer, solider, 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 years, and shall also be
liable to fine.

Explanation: 3[In this section, the words officer , solider , sailor or airman include any
person subject to the Pakistan Army Act, 1952 (XXXIX of 1952), or the Pakistan Navy
Ordinance, 1961 (XXXV of 1961), or the Pakistan Air Force Act, 1953 (VI of 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, solider, 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 either 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
office, solider, 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 of 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, harbours 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
her 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 have 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 (XXXV of 1934), Section 2 and Sch.]

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.]

[Note. Provisions of section 140 of Chapter VII apply to offences under Offences Against
Property (Enforcement of Hadd) Ordinance (VI of 1979)].

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 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 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 a way, or 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.

COMMENTARY
Assembly. An assembly may become unlawful after the time of assembly but it must be proved
there was a circumstance applicable to all the persons assembled which unfluenced them all in
one direction.

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.

145. Joining or continuing in unlawful assembly, knowing that it has been commanded to
disperse. Whoever joins or continues in an 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.

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 offense of rioting.

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.

COMMENTARY
Principal offenders. A large number of accused were charged with offences under Secs. 147,
302/34, 326/149, 35 and 48. The principal offenders were convicted under Secs. 302/34.
Whether conviction of other accused for offence different from that found committed by
principal offenders was illegal.

148. Rioting, armed with deadly weapon. Whoever is guilty of rioting, being armed with a
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.

COMMENTARY
Accused committing offence of rioting when armed with deadly weapons. Held: They would be
guilty u/s. 148.4c
Each accused would be liable for act committed by him during occurrence when occurrence was
not result of pre-meditation or pre-planning but was result of sudden flare-up. Accused persons
cannot be held vicariously responsible for murder of deceased from fatal injury by their co-
accused. Accused who had not caused any injury either to deceased or to injured PW would be
entitled to acquittal by having benefit of doubt when their participation in such occurrence lacks
reliable corroboration.5
Uncorroborated evidence of interested eye-witnesses would not be safe for recording
conviction/sentence against accused. Held: Prosecution did not inspire confidence and
appellants were entitled to acquittal after setting aside their conviction/sentence u/ss.
148/436/325/149.

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.

COMMENTARY
Provision of S. 149 would not be attracted when occurrence was not result of pre-concert and
pre-meditation but had occurred on account of sudden flare up. In such case, each accused
would be liable for his individual act and conviction/sentence u/ss. 302/149 would not be
sustainable.

Application of S. 149, Penal Code. Unlawful assembly. Common object. Prosecution must prove
presence and participation of each of the accused in unlawful assembly for conviction under S.
149, Penal Code.

Question arising whether all persons who even did not participate in any manner to facilitate
murder of deceased could be saddled to have common object with real culprits in committing
murder. Held: In circumstances of case, Judge in High Court was rightly influenced by relevant
considerations and rightly upheld convictions of those accused who physically and practically
participated in facilitation and in murder of deceased.

Where a number of persons laid trap and attacked the deceased, all of them were equally liable
for murder. Those not giving actual blows cannot be discharged of liability.

High Court acquitted two of five accused. The conviction of remaining accused under Sec. 148
was not maintainable. Thus constrictive liability cannot be placed.6e
In the absence of evidence of any special intention or knowledge, two of the members of
assembly could not be convicted under Secs. 302/34, PPC. Unless there by intention or
knowledge of one of the kinds specified in Sec. 299, no conviction for culpable homicide can be
had.

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 emplo yment 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 a public servant in the discharge of his
duty as such public servant, in endeavouring to disperse an unlawful assembly, or to suppress a
riot 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 any thing 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.

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
castes or communities or any groups of persons 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 knowing it to be likely that the participants in nay 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 cause 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 I: 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 having or have a tendency to produce, feelings of enmity or hatred between
different religious, racial, language or regional groups or castes or communities.

153-B. Inducing students, etc., to take part on political activity. 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 9[which disturbs or undermines, or is likely to
disturb or undermine, the public order shall be punished with imprisonment which may extend
to two years or with fine or with both.

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 not exceeding on 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 or occupier of any land respecting
which such riot taken 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
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 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,
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 his 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 an unlawful assembly or riot; or to go armed. Whoever is
engaged or hired, or offers or attempts to be hired or engaged, to do o assist in 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.
_____________

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
accepts, 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 disfavour to any person, or for rendering or attempting to render
any service or dis-service 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 he 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 reward for doing what he has 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 set up,
controlled or administered by, or under the authority of, the Federal Government.

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 case in favour of Z, has committed the offence defined in this section.

(b) A, holding the office 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 a motive or reward for generally showing favour in the exercise of
this official functions to that Power. A has committed the offence defined in this section.

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

COMMENTARY
Read with Prevention of Corruption Act (II of 1947), S. 5. Taking illegal gratification. Offence of.
Establishment of. Particular Act was not within duties of accused but he erroneously thinks that
an act was within his official duty and accepted illegal gratification by inducing such erroneous
belief in another person. Held: Such public servant was guilty of offence of taking illegal
gratification.

Bribery. Attempt to obtain bribe is as much an offence as actual acceptance of receipt of bribe.
Offence is complete even when public servant refuses to accept insufficient amount offered. No
question of locus poentieniae arises in such cases.

Demand for illegal gratification and its actual receipt are distinct offences.

S. 161. Receiving money and undertaking to destroy telegram before the due date amounts to
commission of offence under Sec. 161.

S. 161. Charging fee by doctor more than permitted under rules does not amount to graining of
pecuniary advantage.

S. 161. Bona fide as well as mala fide acts are included in the expression official act used in
Sec. 161

.
S.161. For the application of Sec. 161, it is not necessary that a public servant should in fact
have the power to render service.

.
S. 161. The complainant from whom bribe is extorted is to an abetter or an accomplice. His
evidence should be scanned with care.

Local Police has no jurisdiction to register case u/s. 161 read with S. 5(2), Prevention of
Corruption Act, 1947 as it is a scheduled offence under Punjab Anti-Corruption Establishment
Rules, 1985 and falls within exclusive jurisdiction of Anti-Corruption Establishment constituted
under Punjab Anti-Corruption Establishment Ordinance, 1961.

Conviction/sentence appealed against on defence plea of false implication. No witness
whatsoever produced by appellant at trial stage in support of his defence plea. Evidence on
record establishing beyond all sorts of doubts that appellant had accepted bribe and tainted
currency notes were recovered from his possession. Held: Conviction merited affirmance as
unexceptional but sentence of two months‘ simple imprisonment merited reduction into
sentence already undergone.

Conviction/sentence would be unsustainable when raid was conducted by officials of Anti-
corruption Establishment and Police without associating any Magistrate.

Contention that two material witnesses (Complainant and Taxi driver) were declared hostile and
their evidence also suffers from material contradiction and that evidence of three official
witnesses does not inspire confidence. PWs 1 & 2 have fully supported initial incident as well as
lodging of F.I.R. and arrangement regarding passing of tainted money. Although obliging
statements have been made by them in latter part of their examination-in-chief, their consistent
statement is worthy of credit on almost all material points. Three official witnesses have also
fully supported prosecution version on all material points as they witnesses payment of tainted
and its recovery from possession of appellant. Once money is shown to have passed on to
accused through a decoy witness a rebutable presumption arises u/s. 4 of Act II of 1947 that
tainted money was received as illegal gratification. Appellant has failed to rebut that
presumption. Learned Trial Court has taken note of some contradictions in statements of three
official witnesses but has rightly held them to be of trival nature. Alleged false implication of
appellant due to grudge of I.O. is not at all plausible as appellant admitted his presence on spot
at time of raid but why did he intervene when whole operation was being supervised by a
Magistrate. Conviction and sentence awarded by Trial Court is maintained. Appeal dismissed.6
Illegal gratification, obtaining of. Conviction for. Challenge to. Neither challan nor sanction order
bears signature of Trial Judge. Sanction order was not exhibited in Court to form part of record.
Appeal can be decided only on basis of material available on record and not on any document
which is not part of record. Held: Sanction order even if available in file of lower Court, cannot
be looked into as same is not exhibited in evidence to form part of record. Held further; It
cannot be said that Trial Court acquired jurisdiction legally.

Evidence conclusively showing that accused was holding bribe money in his hand. When raiding
party introduced itself, he threw bribe money on the ground and in his first statement he
denied having received any money. Held: (i) In facts of case, no benefit could be claimed by
convict for not over-hearing conversation. (ii) Case against convict was adequately and
sufficiently proved by witnesses who had no motive to falsely implicate him. (iii) There were no
flaws in prosecution version, benefit of which could be extended to convict.

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 of 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 dis-service 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.

COMMENTARY
Conviction/sentence for taking bribery based on uncorroborated testimony of complainant,
would merit setting aside when both recovery witnesses did not support prosecution case and
were declared hostile.

Appreciation of evidence. Neither the payment of money to the accused as alleged by the
complainant was proved beyond reasonable doubt, nor the alleged recovery of the said amount
from the accused was proved. Recovery witnesses did not support the prosecution version and
were declared to be hostile. Even if payment of the said amount to the accused was admitted,
the possibility of the same having been meant to engage a counsel for filling a bail petition of
the complainant‘s brother could not be ruled out. Accused was acquitted in circumstances.

163. Taking gratification, for exercise of personal influence with public servant. Whoever
accepts or obtains or agrees to accepts or attempts to obtain, from any person, for himself or
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 dis-service to any
person with the Central or any Provincial Government or Legislature, or with any public servant,
as such, shall be punished within simple imprisonment for a term which may extend to one
year, or with 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.

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 the offences defined in the last
two preceding 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 with-out 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 of any public servant to whom he is
subordinate,
or from any person whom he knows to be interested in o r 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 consideration.

165-A. Punishment for abetment of 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.
Repealed section 165-B is given below:--

165-B. Certain abettor excepted. A person shall be deemed not to abet an offence punishable
under section 161 or 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,
or any valuable thing without consideration, or for an 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 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.

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.

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 extend 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 grab 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.

Legal Services

noreply@blogger.com (Anonymous) — Thu, 12 Sep 2013 09:25:00 +0000

We are Leading Law Firm in Rawalpindi / Islamabad and Providing Services in:

Family Matters: Court Marriage, Divorce / Khulla, Child Custody, Recovery of Maintenance and Dowry Articles.

Criminal Cases: Quashment of FIRs, Bails,Writ Petitions etc.

Civil Cases: Stay Matters, and Cases relating to Property,Damages,Recovery of Debts.

Contractual Cases:Performance of Contract,Breach of Contract,Partnership,Damages and Costs

Banking Cases

Consumer Cases

Superdari of Vehicles and Bikes

Partnership Deeds, Power of Attorney,Affidavits,Domiciles.

Contact:Gujjar Law Associates Rawalpindi:03215294849

The Offence of Zina (ENFORCEMENT OF HUDOOD) Ordinance

noreply@blogger.com (Anonymous) — Tue, 10 Sep 2013 14:21:00 +0000

An Ordinance to bring in conformity with the injunctions of Islam the law relating to the Offence of' Zina.

Preamble:

Whereas it is necessary to modify the existing law relating to Zina so as to bring it in conformity with the injunctions of Islam as set out in the Holy Qur'an and Sunnah;And Whereas the President is satisfied that circumstances exist which render it necessary to take immediate action;Now, therefore, in pursuance of the Proclamation of the Fifth day of July, 1979, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance :-

1. Short title, extent and commencement:

(1) This Ordinance may be called the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

(2) It extends to the whole of Pakistan;

(3) It shall come into force on the twelfth day of Rabi-ul-Awwal, 1399 Hijri, that is, the tenth day of February, 1979.2.

Definitions:

In this Ordinance, unless there is anything repugnant in the subject or context,-

(a)"adult"means a person who has attained, being a male, the age of eighteen years or,being a female, the age of sixteen years, or has attained puberty;

(b) "hadd" means punishment ordained by the Holy Qur'an or Sunnah ;

(c) "marriage" means marriage which is not void according to the personal law of the parties, and "married" shall be construed accordingly ;

(d) "muhsan" means"

(i) A Muslim adult man who is not insane and has had sexual intercourse with a Muslim adult who, at the time he had sexual intercourse with her, was married to him and was not insane; or

(ii) a Muslim adult woman who is not insane and has had sexual intercourse with a Muslim adult man, who at the time she had sexual intercourse with him, was married to her and was not insane; and

(e) "tazir" means any punishment other than hadd, and all other terms and expressions not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code(Act XLV of 1860), or the Code of Criminal Procedure, 1898 (Act, V of 1898).

3. Ordinance to override other laws:

The provisions of this Ordinance shall have effect not withstanding anything contained in any other law for the time being in force.

4. Zina:

A man and a woman are said to commit zina if they willfully have sexual intercourse without being validly married to each other.

5. Zina liable to hadd :

(1) Zina is zina libale to hadd if:

(a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married ; or

(b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be, married.

(2) Whoever is guilty of zina liable to hadd shall, subject to the provisions of this Ordinance,—

(a) if he or she is a muhsan, be stoned to death at a public place; or

(b) if he or she is not a mushan, be punished, at a public place, with whipping numbering one hundred stripes.

(3) No punishment under sub-section (2) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment be of whipping, until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.

6. Zina-Bil-Jabr:

(1) A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely :

(a) against the will of the victim ;

(b) without the consent of the victim;

(c) with the consent of the victim,; when the consent has been obtained by putting the victim in fear of death or of hurt; or

(d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr.

(2) Zina-bil-jabr is zina-bil-jabr liable to hadd If it is committed in the circumstances specified in sub-section (2) of Section 5.

(3) Whoever is guilty of zina-bil-jabr liable to hadd shall subject to the provisions of thisOrdinance;

(a) if he or she is not muhsan, be stoned to death at a public place; or

(b) if he or she is not muhsan, be punished With whipping numbering one hundred, at a public place, and with such other punishment including the sentence of death, as the Court may deem fit having regard to the circumstances of the case.

(4) No punishment under sub-section (3) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment beof whipping, until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.

7. Punishment for Zina or Zina-Bil-Jabr where Convict is not an Adult:

A person guilty of zina or zina-bil-jabr shall, if he is not an adult, be punished-with imprisonment of either description for a term which any extend to five years, or with fine, or with both,and may also be awarded the punishment of whipping not exceeding thirty stripes :Provided that, in the case of zina-bil-jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment.

8. Proof of Zina or Zina-Bil-Jabr liable to hadd :

Proof of Zina or Zina-Bil-Jabr liable to hadd shall be in one of the following forms, namely :-

(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or

(b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah-af-shuhood, that they are truthful persons and abstain from major sins (khabir), give evidence as eye-witnesses of the act of penetration necessary to the offence ;Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims.Explanation:In this section "tazkiyah-al-shuhood" means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness.

9. Cases in which Hadd shall not be Enforced:

(1) In case in which the offence of zina or zina-bil-jabr is proved only by the confession of the convict, hadd, or such of it as is yet to to be enforced, shall not be enforced if the convict retracts his confession before the hadd or such part is enforced.

(2) In a case in which the offence of zina or zina-bil-jabr is proved only be testimony,hadd, or such part of it as it yet to be enforced, shall not be enforced if any witness resiles from his testimony before hadd or such part is enforced, so as to reduce the number of eye-witnesses to less than four.

(3) In the case mentioned in sub-section (1), the Court may order retrial.

(4) in the case mentioned in sub-section (2), the Court may award tazir on the basis of the evidence on record.

10. Zina or Zina-Bil-Jabar:

(1) Subject to the provisions of Section 7, whoever commits Zina or Zina-bil-jabar which is not liable to hadd, or for which proof is either of the form mentioned in Section 8 is not available and the punishment of qazaf liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, 'shall be liable to tazir.

(2) Subject to sub-section 4 whoever commits zina-bil-jabr liable to tazir shall be punished with imprisonment for a term which shall not be less than four years not more than twenty-five years and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping numbering thirty stripes.

(3) When zina-bil-jabr liable to tazir is committed by two or more persons in furtherance of common intention of all each of such person shall be punished with death.

(4) Whoever commits zina liable to tazir shall be punished with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and with whipping numbering thirty stripes, and shall also be liable to fine.

11. Kidnapping, Abducting or Inducing Women to Compel for Marriage, etc.:

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced, to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code PPC (Act XLV of 1860) or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, or seduced to illicit intercourse with another shall also be punishable as aforesaid.

12. Kidnapping or Abducting in Order to Subject Person to Un-Natural Lust:

Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person,or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine, and if, the punishment be one of imprisonment,shall also be awarded the punishment of whipping not exceeding thirty stripes.

13. Selling Person for Purposes of Prostitution, etc.:

Whoever sells, lets to hire, or otherwise disposes of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.

Explanations :

(a) When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

(b) For the purposes of this section and Section 14, "illicit intercourse" means sexual intercourse between persons not united by marriage.

14. Buying Person for Purposes of Prostitution, etc.:

Whoever buys, hires of otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes and shall also be liable to fine.

Explanation:Any prostitute or any person keeping or managing a brothel, who buys,hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent hat she shall be used for the purpose of prostitution.

15. Cohabitation caused by a Man Deceitfully Inducing a Belief of Lawful Marriage:

Every man who by deceit causes any woman who is not lawfully married to him to belief that she is lawfully married to him and to cohabit with him in that belief, shall be punished with rigorous imprisonment for a term which may extend to twenty-five years and with whipping not exceeding thirty stripes and shall also be liable to fine.

16. Enticing or Taking Away or Detaining with Criminal Intent a Woman :

Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall, be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

17. Mode of Execution of Punishment of Stoning to Death:

The punishment of stoning to death awarded under Section 5 or Section 6 shall be executed in the following manner; namely :-Such of the witnesses who deposed against the convict as may be available shall start stoning him and, while stoning is being carried on, he may be shot dead, where upon stoning and shooting shall be stopped.

18. Punishment for Attempting to Commit an Offence:

Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half or the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments.

19. Application of Certain Provisions of Pakistan Penal Code (Act XLV of 1860) and Amendment:

(1) Unless otherwise expressly provided in this Ordinance, the provisions of Sections 34 to 38 of the Chapter II, Sections 63 to 72 of Chapter III and Chapters V and V-A of the Pakistan Penal -Code (Act XLV of 1860), shall apply, mutatis mutandis,in respect of offences under this Ordinance.

(2) Whoever is guilty of the abetment of an offence liable to 'hadd' under this Ordinance shall be liable to the punishment provided for such offence as 'tazir'.

(3) In the Pakistan Penal Code (Act XLV of I860):

(a) Section 366, Section 372, Section 373, Section 375 and Section 376 of Chapter XVI of Section 493, Section 497 and Section 498 of Chapter XX shall stand repealed; and

(b) in Section 367, the words and comma "or to the unnatural lust of any person" shall be omitted.

20. Application of Code of Criminal Procedure, 1898, and Amendment:

(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) hereafter in this section referred to as the Code, shall apply, mutatis mutandis, in respect of cases under this Ordinance: Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefore, be convicted and punished for that offence:Provided further that an offence punishable under this Ordinance shall be try able by a Court of Session and not by a Magistrate authorized under Section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court:Provided further that a trial by a Court of Session under this Ordinance shall ordinarily beheld at the headquarters of the Tehsil in which the offence is alleged to have been committed.

(2) The provisions of the Code relating to the confirmation of the sentence of death shall apply, mutates mutandis, to confirmation of sentences under this Ordinance.

(3) The provisions of Section 198, Section 199, Section 199-A or Section 199-B of the Court shall not apply to the cognizance of an offence punishable under Section 15 or Section 16 of this Ordinance.

(4) The provisions of sub-section (3) of Section 391 or Section 393 of the Code shall not apply in respect of the punishment of whipping awarded under this Ordinance.

(5) The provisions of Chapter XXIX of the Code shall not apply in respect of punishments awarded under Section 5 or Section 6 of this Ordinance.

(6) in the Code, Section 561 shall stand repealed.

21. Presiding Officer of Court to be Muslim:

The Presiding Officer of the Court by which a case is tried, or an appeal is heard, under this Ordinance shall be a Muslim:

Provided that, if the accused is a non-Muslim the Presiding Officer may be a non-Muslim.

22. Saving :

Nothing in this Ordinance shall be deemed to apply to the cases pending before any Court immediately before the, commencement of this Ordinance, or to offences committed before such commencement.

Gujjar Law Associates Rwp.03215294849

Muslim Family Laws

noreply@blogger.com (Anonymous) — Sun, 08 Sep 2013 18:03:00 +0000

Muslim Family Laws

Terms and conditions of the Muslim marriage contract:

Definitions:
Nikah - The Muslim contract of marriage;
Mahr - prescribed amount (cash/kind, immediate or deferred) given by either partner in consideration of the marriage;
Witness – two adult witnesses of good character;
Ijab/Qabul - formal marriage proposal and acceptance;
Talaq – divorce.
Khulla:- Divorce

Preamble to Contract:

The marriage agreement involves some obligations and rights toward each other sanctified by Allah and His messenger, Muhammad (peace and blessings be upon him). Fulfilling the terms of this contract is a religious obligation and duty rewarded in this world and hereafter. Violation of these agreed terms constitutes a sin.

Apart from a formal contractual obligation marriage is also a relationship between two human beings, that is ideally based on love, mercy and kindness. The partners are therefore expected to base their behaviour not just on legal rights and duties but on the spirit of goodwill, generosity, consideration and sympathy, taking into account each other's individual likes and dislikes. They are expected to conduct all family affairs through mutual consultation in the spirit of giving more than less (Q: 83 : 1-3).

All the rights and obligations expressed or implied hereunder are according to Shari‘ah derived from the Qur’an, Qiyas, Itjihad and Ijma‘ as agreed by prominent Muslim scholars. Since a marriage contract is a social contract entered into willingly, it recognises and upholds, social etiquettes and the law of the land.

Importance of Nikahnama:

Nikahnama is very important for the rights protection of the women. But unfortunately the women are not aware about the importance of Nikahnama and that is why it is not filled accurately and fully. Its few column are filled and rest of are left blank. That is why the women have to face many probelem after the marraige. If this documents is prepared with care, fully and properly then the women can enjoy full their matrimonial right which have given by the law.

It is our big tragedy that the women are not aware about this documents and moreover it is prepared and filled by less educated nikah registar or other persons who either don't know about the importance of Nikahnma or deliberately neglect to complete the nikahnama fully.These are the rights of the women which law has given to them about the marriage, dower, husband second marraige, dowry articles, gift item, permission form arbitration council, terms and conditions of the marriage, monthly expenses and maintenance and as well about the delegated power of the divorce.

The nikahnama have 25 coloums in which 10 columns which are from 13 to 22 totally for the benefit, welfare of the women and for the protection of the women legal and matrimonial rights. But unfortunately these columns are hardly filled and care cut crossed during the nikah. It is very pity that due to ignorance and due to unaware about the law and the terms and conditions and rights of the nikah these columns are left blank. Resultly the majority of the cases comes in the court. The women have to approach to the court for their right. It is little ignorance if the women or their parents realize these importance things and fill the nikahnama completely and fully then after the marriage the women can enjoy full legal rights which they have ever.It is essential documents therefore, every women have to study and see this documents before the marriage and bound to the Nikah Registarar to compelete fill the Nikahnama with all rights. So that the women can enjoy all legal right which actually law want to give them.

Property mentioned in Nikahnama:

Nikahnama is a basic documents by which the marital relations are woven between spouses. Marriage in Islam is a civil contract. It is necessary that such a document would be the result of freewill and consent. A sui juris woman can contract marriage of her own free will and nikah performed under coercion by getting thumb impression of a woman in a deceitful manner is no nikah in the eyes of law.

Nikah of parties is in the form presceibed under Muslim Family Laws Ordinance 1961 and the rules framed thereunder and same is registrered with the Nikah Registrar in accordance with prescribed mode and thus Nikahnama has a different status than any other unregistered documents through which some immoveable property has purportedly been transferred. Nikahnama is a public document executed by Public Officer certified copy whereof is sufficient for proof of its contents unless its rebuttal is effected through cogent evidence. Dower deed by which immoveable property is purported to be transferred is thus , not considered to be compulsorily registerable under Registration Act, 1908 and wife is entitled to claim immoveable property on basis of Nikahnama wherein same is incorporated in lieu of dower. Any property prescribed in Form II stand transferred in the name of the bride and in such cases there in no need to execute a dower deed separately.

Enhancement of Dower Amount:

The dower amount can be enhanced at any time and at any stage after the marriage. For the enhancement of dower amount a new documents can be prepared at any time and it has not time limits. It is kind of agreement which can be executed any time after the marriage. The Hon’ble Superior court held that the enhancement can be made even orally. It is not necessary that it can be written.

The written document is more powerful then orally. If the husband deny about the enhancement of dower amount and if there is written document then it can be present as a proof. However if husband does not deny the increment of dower amount then it can be enhanced through the oral agreement.

However it better that the written document must be prepared for the enhancement of dower amount. Sometimes after the solemnization of the nikah and marriage the enhancement of dower amount is required then it is no matter it can be enhanced at any time and at any stage.

Permission of Wali for Marriage:

Marriage without the permission of wali by a girl who is sui juris is neither irregular nor invalid provided it is free from taint of fraud and misrepresentation and there is no legal bar or disability to the union of the parties. In Hedaya the principles of Hanfi Law is stated as follows:
“An adult female may engage on the contract without her guardian’s consent. A woman who is an adult and of sound mind maby be married by virtue of her own consent although the contract may bnot have been made or acceded to by her guardian”
Shafei school “the consent at marriage should b of the wife, the Wali only communicate the wish of the bride. The Wali’s power emanate from the authority of the woman. She may choose a remote relative as Wali in preference to a nearer one who is inimical to her interest.”

Court Marriage:

If the marriage of male and female is performed in the court with the permission of the court without the permission of wali/parents, this is called court marriage. Generally those couple comes in the court for the marriage whose parents don’t want their daughter to get marriage with that guy with whom their daughter loves him and want to marry at any cost. Therefore in the absence of the consent of parents of the couples especially the parents of the girl when forbade their girl to marry the specific guy than it happened. Sometimes when the girl contracted the marriage without the permission and consent of the parents, they lodge the false FIR for abduction of the girl and committing the zina against the newly husband of their daughter and his family for creating harassment and sometime get divorce forcibly. However on the statement of the girl the FIR is quashed accordingly.

The constitution of Pakistan, the law of land, Islam and Muslim Family Law allow to every adult person to get marry on his/her own choice, accord and freewill. The Superior Courts called that girl sui juirs and accepted their marriage without the consent of parents. And the Courts have accepted the minimum age 16 of the girl for marriage and hold that 16 years girl and above is capable to contract her marriage as per her own wish, freewill and consent.

For the purpose of Court marriage the girl have to appear in the court and have to give statement in the court before the Magistrate /Oath Commissioner / Justice of Peace etc. that she is going to marry with her own choice, freewill and accord, she is major, adult, and without no use of intoxicant she is deposing and no one has abducted, kidnapped. Thereafter the marriage is solemnized as per religious procedure. If the couples are Muslims then Nikahkhawan/Qazi solemnize the marriage in the presence of witnesses, if the couples are Christian then the father/padri solemnize the marriage if the couple are Hindu or any other community then the marriage is solemnized as per their religious way. After this the couples are allowed to go their homes and thereafter the said marriage certificate /Nikahnama is registered in the concern authority and return to the couple.

Effect of Non Registration of Marriage:

Under Muslim Law nikah can be performed orally and such a nikah is not invalid merely because it is not registered according to provision of the Muslim Family laws Ordinance 1961. A marriage which has not been registered under section 5 or which has been contracted in contravention of the provisions of section 6 would not be invalid and the relationship of husband and wife created by it would subsist though the husband would be liable to penal action for contravening the provisions of the Ordinance. It follows that non registration of marriage in itself would not invalidate the same, it factum of marriage was otherwise proved to have taken place in accordance with requirements of Islamic law. where however factum of marriage was in seiouls doubt between the parties non-registration might vause some doubt on its existence and solemnisation. On the other hadn where a marriage is not registered the mere allegation of marriage in the absence of very strong proof would not be sufficent for holding that the marriage had been duly solemnized.
Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and fulfilment for the contracting parties including the following:

1. Preservation of chastity and security of gaze.
2. Companionship inside and outside home.
3. Emotional and sexual gratification.
4. Procreation and raising of any children by mutual agreement and consultation.
5. Agreement to live together in a mutually agreed country and establish their matrimonial home therein.
6. Working collectively towards the socio-economic welfare and stability of the family.
7. Maintaining their individual property rights but contributing to the welfare of the family according to their capacity.
8. Maintaining social contacts with family and friends mutually beneficial for the family.
9. Managing their individual activities/roles inside and outside the home by mutual consultation.

Special Conditions:

1. Both parties reserve the right to amend/alter the contract through mutual written agreement.
2. Both parties undertake to stay loyal to each other and never to engage in extra-marital affairs with the opposite or same sex.
3. Either partner is not to enter into formal or informal marriage contract in the UK or abroad with another person, as it is unlawful under the laws of England and Wales as well as the Scottish legal system if the parties are living in the jurisdiction of UK and Ireland.
4. Under Muslim Family law /Pakistani law male can contract second marriage with the permission of the first wife and permission of the arbitration council.
5. The power of divorce (talaq) is available to both partners equally.
6. Details of any additional special conditions mutually agreed upon by:

Arbitration and adjudication:

1. All differences between the wives pertaining to this contract, its interpretation and implementation should be amicably resolved between themselves.
2. However, failing satisfactory resolution of differences, both parties undertake to settle their differences through family consultation and/or professionals.
3. If not mutually resolved, in matters of child(ren), custody and property possession / division the decision of a British courts will be acceptable to both parties if the parties are in UK and Ireland.
4. If the spouses are in Pakistan then the Family Courts have exclusively powers for the custody of the children, maintenance of wife and children and as well as divorce and khulla matters.

Restitution of Conjugal Rights:

Marriage confers important rights and entails corresponding obligations both on the husband and wife some of these rights are capable of being altered by the agreement freely entered into by the parties but in the main the obligations arising out of marriage are laid down by the law. An important obligation is consortium which not only means living together but implies a union of fortunes. A fundamental principal of matrimonial law is that one spouse is entitled to the society and comfort of the other. Thus where wife without lawful cause, refuses to live with her husband the husband is entitled to sue for restitution of conjugal rights and similar the wife has the right to demand the fulfillment by the husband of his marital duties. Either party to a marriage may sue the other restitution of Conjugal Rights. This right is given to both the parties.

The Muslim husband being dominant in matrimonial matter, the court leans in favor of the wife and requires strict proof of all allegations necessary for matrimonial relief. The Qur’an enjoins husbands to keep their wives with kindness or in kindness part from them. The husband can divorce a wife who is disinclined to live with him or marry a second wife, leaving his first wife alone and in peace.

The court may order the husband to be attentive to his wife and if he has more wives than one, to be just and equal between them. The husband unless he has contracted otherwise can always divorce his wife and thus get rid of most of his matrimonial liabilities. But he may not be willing to divorce that might render him liable for the mahr, a circumstance that may not be so release herself. The Sharayaul Islam indeed suggests a kind of arbitration where there is discord between them.
The right however is not absolute. The Holy Qur’an enjoins husband to retain wives with kindess or to part of with them with an equal consideration. Wherever a case of this nature arises it is to be born in mind that as the Muslim husband is dominant in matrimonial matters, the courts leans in favor of the wife and requires strict proof lf all allegations necessary for matrimonial relief. The law, however does recognize circumstances which would justify her in refusing to live with him.

Irregularity of the marriage is good defense to s suit for restitution of conjugal rights as it is necessary for a marriage to be valid according to Muslim law before the court can grant the decree of restitution of conjugal rights.

Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some fault on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit.

Ground for the Permission of Second Marriage:

Section 6 requires the Arbitration Council to decide a husband application for permission to contract another marriage during the subsistence of an existing marriage and record reasons for its “decision”.

The council has been advised under the rules to look to the following things in particular while considering the question.
1. Sterility,
2. Physical infirmity,
3. Physical fitness,
4. Unfitness for conjugal relations,
5. Will avoidance of a decree for restitution of conjugal rights,
6. Or insanity on the part of an existing wife.

But these or any other considerations are not binding on the Arbitration Council. They have to decide the matter according to their own reason and wisdom.

Jactitation of Marriage:

Jactitation of marriage.. the expression “Jactitation of marriage” us defined in the Wilson’s Anglo-Muhammandan Law as suit to have declared that the defendant is not the wife or the husband of the wife.in the Halsbury’s Laws of England (Third Edition) Volume 12 pages 225 paragarph 418 the form of suit of jactitation has been dealt with follows
“False boast of marriage. If anyone persistently and falsely alleges marriage with another the latter may obtain in the suit for jactitation of marriage a decree of perpetual silence. Only the person complaining that he has so been misrepresented can present such a petition.”

The word Jactitation according to the twentieth century dictionary means “bragging, public assertion esp. ostentatious and false” in Goldstone versus Goldstone it was helf that jactitation of marriage is an unwarrantable assertion that marriage exists and it has been within the jurisdiction of this court for many years to intervene to put to silence the person making a false declaration of marriage”

In Mir Asmat Ali verus Mahmmudul Nisa the object of the suit was given as follows: “There can be no doubt that unless a man is entitled by means of the civil courts to put to silence a woman who falsely claims to be his wwife the man and others may suffer considerable hardship and his heirs may be harassed by false claims after his death”

In Pakistan section 42 of the specific Relief Act enables a person to file suit for declaration of his legal character. It has been held that suits for negative declaration are also competent as section 42 is not exhaustive. A suit lies for a declaration that plaintiff is or is not the husband or wife of the defendant.

Polygamy , Repugnancy to Injunctions of Islam:

Provision of section 6 Muslim Family Laws Ordinance are derivable on a conjunctive reading of Ayaat 3 and 35 of Sura Nisa of Holy Qur’an. Status of polygamy in Islam is no more or no less than that of permissible act and has never been considered a command and therefore like any other matter lawful in principle, may become forbidden or restricted, if same involves unlawful things or leads to unlawful consequences, such as injustice. Misuse of the permission granted by Allah could be checked by adopting suitable measures to put an end to or at least minimize the instances of injustice being found abundantly in the prevent society, therefore it is explicitly of which is not violative of injunctions of Islam may be moved by the wife herself or her parents to determine whether a husband can have a second, third or fourth wife as the case may be. Arbitration Council in such circumstances would be needed to look into the disputes arising between husband and his existing wife/wives with respect to another marriage after taking into consideration the age, physical health, financial position and other attending factors come to a conclusion to settle their disputes. Arbitration Council should figure in when complaint is made by the existing wife or her parents/guardians. Arbitration Council is not empowered to make unlawful anything declared lawful by Islam nor could do vice versa. Intentions are to protect the rights of the existing wife/wives and interest of her / their children. Section 6 Muslim family Laws Ordinance, 1961 has not expressly declared the subsequent marriage illegal and has merely prescribed a procedure to be followed for the subsequent marriages and punishments for its non-observance, thus, sprit of the section is reformative only as in fact same has prescribed a corrective measure for prevention of injustice to the existing wife/wives. Subject to observations recorded to amend the provisions of section 6 and recommendation made by Federal Shariat Court, provision of section 6 Muslim Family Law Ordinance 1961 are not violative of the Injunction of Islam.

Termination of Marriage contract:

1. Parties to this contract undertake to endeavour to do their best to uphold the terms of this contract
2. Neither party will end this contract unilaterally without recourse to arbitration/reconciliation by an independent individual or professional.
3. Male can pronounce divorce to wife and if the wife is given delegated powers of divorce then she also can pronounce divorce herself.
4. If delegated powers are not given to the wife the wife have to file suit of dissolution marriage before the family judge.

Pronouncement of Talaq:

A talaq may be in writing or by a word of mouth and no particular form is necessary. Marriage under Muslim law is a civil contract and not a sacrament. It is ordained by God in Holy Quran and it is for comfort love and compassion. It is the bounden duty of husband to keep his wife with love and affection respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live with those bounds and if parties transgress those parameters they should relieve each other. i.e they may break matrimonial ties with kindness. Contract of marriage under Muslim Law can be dissolved inter alia by husband at his will without intervention of a court; by mutual consent of spouses; by judicial decree on a suit filed by any of the spouses. Divorce when proceeded from the side of husband it is called “Talaq” and when it is effected by mutual consent it is called “Mubarat”

Form of Talaq:

In Muslim family law ordinance no formality for execution of divorce deed or a notice of divorce is prescribed. Mere non-observance of any formality would not denude the deed of its genuineness. Where execution of divorce deed is proved by two marginal witnesses. The deed cannot be regarded as a mere fabrication. The pronouncement of talaq after the enactment of the ordinance could be in any form whatsoever. The intention of the law-makers it appears was that even if the talaq is in any particular form including biddat, it will have effect in accordance with the provisions contained in section 7. The special consequences of talaq-i-biddat would be removed and the talaq (simpliciter in question in this case would become effective on the expiry of 90 days after the receipt of the notice by the charirman unlcess revoked earlier. Under Muslim Personal law as well as Muslim Family Law Ordinance 1961 no mode is prescribed for pronouncement of divorce. It is establishment that Muslim can pronounce a divorce orally or make the divorce in writing. In fact under the Muslim Personal Law of divorce in writing became irrevocable as soon as the same was written byt the ordinance has made inroads into Muslim Personal law by providing a machinery and procedure for confirmation of the divorce and postponement of its effect for 90 days. In other words if talaq is otherwise valid.(i.e.if under the personal law of the parties the talaq is valid) ot would become effective under that law. But the only clog thereon is that effectiveness would be postponed for ninety days under sub section 3 of section 7 of the ordinance. Hanfi laws does not prescribe any particular form for the pronouncement of talaq. But the talaq must be pounced only during the period between two tuhrs (menstrual periods). Where talaq is pronounced on a wife who has passed the age for period menstruation the condition that oral declaration of divorce should be made between two period of tuhr would not be applicable because it would be physically impossible to have any such period between which such a declaration could be made.

Divorce on Mutual Consent (Muba’arat):

When both husband and wife feel an aversion for each other and they dissolve their marriage by agreement. It is called Muba’arat. The offer of separation in mubaraat may proceed either from the wife or husband as soon as it is accepted the dissolution is complete. If the divorce is with mutual consent on the basis of Mubaraat, husband cannot retract or withdraw such divorce nor does chairman Arbitration Council have any authority to adjudicate upon validity of such divorce. Talaq become final for all intents and purposes and husband thereafter cannot withdraw the same; chairman is bound to register the same. Documents of pronouncement talaq are a mutual revocation of contract of marriage. Such talaq is irrevocable from the date of its execution and provision of section 7 would be inapplicable in such a case. This kind of talaq can take effect immediately without awaiting expiry of 90 days.

Revocation of the Divorce:

Talaq pronounced by husband to wife thrice would become “Bain” and husband would have no right of its revocation and to that extent provision of section 7 of Muslim Family Law Ordinance 1961 would give its way to those inunctions as enshrined in the Constitution. The proposition of law is equally applicable to Hanfi Muslim. The husband has no right of its revocation.
It is provided in verse No. 231 of Holy Qur’an that “The termination of marriage bond is a most serious matter for family and social life. And every lawful device is approved which can equitably bring back those who have lived together. Provided only there is mutual love and they can live on honorable terms with each other. If these conditions are fulfilled. It is not right of outsiders to prevent or hinder re-union. They may be swayed by property or other considerations.”

Verse No. 229 contemplates the third divorce and in that case it will be irrevocable. Verses Nos. 228-229 also provides for a reunion during the period of Iddat. Verse No.1 of Surat-al-Talaq, mandate that a divorcee is not to be turned out of the house during the period of iddat. This clearly contemplates scope for reconciliation. Proceedings of reconciliations are also provide in vese No. 35 of Surat-An-Nisa. Maulana Muhammad Ali has explained this verse as follows.

“The verse lays down the procedure to be adopted when a case for divore arises. It is not for the husband to put away his wife. It is the business of the Judge to decide the case. Nor should divorce cases be made too public. The Judge is required to appoint two arbiters one belonging to the wife family and the other to the husbands. These two arbiters will find out the facts but their objective must be to effect reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed but the final decision for divorce rests with the judge who is legally entitled to pronounce a divorce. Cases were decided in accordance with the directions contained in this verse in the early days of Islam.”

Kinds of Divorce:

Marriage under muslin law is a civil contract and not sacrament. It is ordained by God in Holy Quran and it is for comfort love and companion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide the maintenance during substance of marriage. Islam has laid down parameters for spouses to live within those bounds and if parties transgress those parameters they should relieve each other i.e. they may break matrimonial tie with kindness.

The word pronouncement of divorce in any form whatsoever, necessarily imply and presuppose pronouncement of divorce in any manner whatsoever permissible under Muslim law. The pronouncement of divorce must be conscious and independent act. The term pronouncement has not been defined in the Muslim Family Law Ordinance 1961. Therefore, the ordinary Muslim Law on pronouncement of divorce shall continue to apply notwithstanding the provision of Muslim family Law Ordinance.

Divorce is pronounced and executed under section 7 of Muslim Family Law Ordinance 1961. Under the Muslim Family Law there are three kind of divorce. (i) talaq-e-Ahsan (ii) talaq-e-Hassan and (iii) Talaq-e-biddat. The former is pronouncing once during a tuhr followed by abstinence from sexual intercourse from a period of iddat. The later is three pronouncements simultaneously divorce become irrevocable according to paragraph 312 of Muhammadan Law by Mulla after the period of iddat in case of divorce ahsan and on the completion of third pronouncement irrespective of the period of iddat in the later case. Since the divorce in the later case becomes irrevocable at once. It is known as talaq-e-bain.

Accordingly to Ameer Ali on Muhammadan Law volume II writing among the Hanfi’s are said to be two kinds viz. Marsumah (customary)and Ghair Marsumah (non customary). When repudiation is given by a wife of the description called customary, it is effective even when there is no real intention on the part of the husband to divorce the wife. But where the writing though Marsumah is written. So that it is not intelligible or it is written on something that cannot be deciphered. There will be no divorce even if he had an intention. In the case of non customary writings, if there be any ambiguity the divorce will not take effect). When there is no ambiguity and the meaning of the writer is manifest the repudiation is valid. The detail is discussed on page 233 of the digest of Muhammadan Law by Baillie.

Talaq Ahsan:

Talaq ahsan is effected when the husband pronounce one divorce during a tuhr in which cohabitation has not taken place between the parties and then abstains from cohabitation during her iddat. The talaq become irrevocable at the end of the period of iddat. But during the period the husband can take back his wife at any time. When the women are not subject to courses talaq can be pronounced even after cohabitation. The divorce becomes irrevocable only on the completion of iddat whish is three period and when the woman is not subject to periods it is three months. When the women is pregnant the iddat comes to an end on the delivery of the child or three months whichever is later.

Talaq-e-Bain:

The talaq-e-bain is way of divorce by husband is through three pronouncement made during a single “Tuhr” either in one sentence i.e. “ I divorce You” or in separate sentence. i.e. “ I divorce you, divorce you, divorce you,” or a single pronouncement made during a “Tuhr” clearly indicating an intention of irrevocable/complete on expiry of irrevocably. Talaw-e-Ahsan becomes irrevocable/complete on the third pronouncement irrespective of iddat period and talaq-e-bain become irrevocable immediately on its pronouncement irrespective of iddat.

Under Sunni Law where a husband reduces the talaq in writing and in clear words mentions the name of the lady whom he has divorced, it continues a valid divorce. A talaqnama in writing is a record of the fact of an oral talaq or it may be the deed by which the divorce is affected. It may be executed in the presence of Kazi, or of the wife’s father or of other witnesses. It must disclose a clear intentions that the marriage stands terminated but in case of the oral talaq communication is necessary for the purpose of dower maintenance or a women’r right to pledge her husband’s credit for means of subsistence. A talaq becomes irrevocable in Ahsan mode on the expiry of iddate. A talaq in the Hasn mode becomes irrevocable and complete on the third pronouncement irrespective of the iddat. Talaq ins the biddat mode becomes irrevocable immediately on its pronouncement irrespective of iddat. It is called talaq-e-bain

Dissolution of Marriage by Way of Khula:

Marriage is a civil contract between two opposite sexes for procreation of children and for social set up and any condition imposed on wife restraining her from excising her right of claiming divorce would be void ab initio. No restriction can be imposed on wife contrary to principle of Islam and Sunnah. The Holy Prophet (PBUH) had directed Muslim women to get divorce on basis of khula if she is not able to lead her marriage within the limited prescribed by Almighty Allah. Under Muslim law wife is entitled to khula as of right, if she satisfied conscious of the court that it will otherwise mean forcing hereinto hateful union. As there will be no use forcing a woman to live in hateful union of a person when she is not ready to live even for a single day at any cost. When the wife has a reasonable apprehension that her life is unsafe, she should not be compelled to live with her husband. Husband can divorce his wife without intercession of court while wife has to approach the court to obtain dissolution of marriage. Accordingly to single bench of Lahore High Court once wife approaches the court for dissolution of marriage on basis of khulla then court has no option but to accede to her request because she is entitled to divorce on basis of khula as ex debito justitiae (as of right). Right of seeking dissolution of marriage on ground of khula through court is a right equal to right of talaq except one difference that wife has to file a suit for dissolution of marriage whereas husband can pronounce talaq himself. Solitary statement of wife if convincing and satisfying conscious of the court that the spouses could not live amicably may be sufficient. Wife is the best person to depose treatment of her husband unhappy union should not be forced. Mere statement of wife that he had developed hatred for the husband is sufficient to entitle her to grant of khula. Hatred and aversion can neither be prescribed nor confined within the limited sphere and no mechanism has been evolved to express hatred or aversion precisely and in a definite manner.

It is necessary for the wife for seeking divorce on the ground of khula to use the word khula in the application. Lady stating that she had developed extreme hatred against her husband and their was no likelihood of reconciliation between the parties and that she would prefer death rather to remain within the marital union, suit of the wife will be considered as bringing out the pleas of khula. It is not necessary for the wife to use specific words of grant of decree of khla. Wife is not required to prove reasons and circumstances justifying her aversion and hatred towards husband.

Minor girl whose marriage is given by the father. On attaining age of 16 years and before 18 the girl exercising her right of option of puberty and divorce her marriage. The right of option of puberty is independent right and she can dissolve the marriage under the law.

Return of Benefit by Wife at the time of Khulla:

While dissolving marriage on the ground of khulla the court is bound to determine terms and conditions for khulla. Claim of maintenance however is not benefit received by wife from husband and there not returnable. Claim of maintenance however is not benefit received by wife from husband and therefore not returnable in case of khulla for it is duty of husband of maintenance his wife so long as she remains in wedlock. Where it is not shown that wife had received any benefit from husband during subsistence of marriage then wife would be entitled to get khulla unconditionally and the question of return of benefit to husband would not arise. Amount spent by husband or paid by him t his wife after marriage cannot be termed as benefit derived y her as consideration after her marriage.

In the absence of any demand made by the husband either in his pleadings or in evidence for returns of benefits family court is not bound to order the same. Dower paid or unpaid can never be in the nature of the benefit or gift liable to be restored in consideration of granting khulla divorce. In absence of any proof of receipt of benefit by wife from husband wife is entitled to grant of khulla without restoration of said un proof benefit.

Whose jurisdiction the Confirmation of Divorce is filed?

When divorce is pronounce by the husband or by the wife(in the case of delegated power of divorce) the notice is given to the Union Council / Arbitration Council for the confirmation of the divorce under section 7 (1) of Muslim Family Law Ordinance 1961. Under section 3 (B) of West Pakistan Rules under the Muslim Family Ordinance 1961 in the case of Notice of Talaq under section (1) of section 7 it shall be the Union Council of the Union Council or Town council where the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of Talaq:

Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be:-

(i) In case such wife was at any time residing with the person pronouncing the talaq in any part of west Pakistan, the Union Council of the Union or Town where such wife so last resided with such person ; and
(ii) In any other case, the Union Council of the Union or Town where the person pronouncing the talaq is permanently residing in west Pakistan

Where whereabouts of the wife who is to be supplied a copy of the notice of talaq under sub section A(1) of section 7 of the ordinance are not known to the husband and cannot with due diligence be ascertained by him he may with the permission of the Chairman serve the notice of talaq to the wife through her father, mother adult brother or adult sister or if their whereabouts are not known to the husband or cannot with due diligence be ascertained by him, he may with the permission of the chairman serve the notice of talaq on her by publication in a newspaper approved by the chairman having circulation n the locality where he has resided with the wife.

Dissolution of Muslim Marriage on ground of Cruelty:

Under clause (viii) of section 2 of Dissolution of Muslim Marriage Act 1939 a wife can seek dissolution of marriage on the basis of cruelty that is to say:-

1. If the husband assaults her or makes her life miserable by cruelty or conduct even if such conduct does not amount to physical ill-treatment or

2. Associate with woman of evil repute or leads an infamous life or

3. Attempts to force her to lead an immoral life or

4. Disposes of her property or prevents her exercising her right over it or

5. Obstructs her in the observance of her religious profession or practice or

6. If he has more wives then one does not treat her equitably in accordance with injunctions of Qur’an.
Cruelty can be either physical, mental or even by conduct and has to be proved as a matter of fact before the court. The court is required to discuss entire evidence produce by parties so as to reach to some just decision.

Appeal against Dissolution of Marriage:

Section 14(2)(a) of West Pakistan family Court Act 1964 and section 2(iii)(d) of Dissolution of Muslim Marriage Act 1939 that no appeal against decree for dissolution of marriage . Its object to deprive from filing of appeal against the decree regarding dissolution is to shorten the agony and to resolve the controversy expeditiously. Theme behind the proceedings or reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible. No right of appeal is provided if marriage was dissolved by the family court however if marriage was dissolve under section 2(iii)(d) of the Dissolution of Muslim Marriage Act 1939 then right of appeal had been awarded before the District Judge. (Ref: 2013 CLC 1203)

Divorce on ground of Lia'n:

Lia'n mean imprecation. it is considered to imply a false charge of adultery brought by the husband against his wife. In such case the wife is entitle to sue for a divorce on the ground that her husband has falsely charged her with adultery. If the charge is proved to be false, she is entitled to a divorce but if not proved to be true. In the case of Lia'an the testimony which is required that the husband swears four times by God that he speaks the truth, As such if a man charges his wife with adultery he shall be called upon on the application of the wife, either to retract the charge or to confirm it by oath, coupled with an imprecation in these form.

"The curse of God be upon him, if he was a liar if he cast at her the charge of adultery"

The wife must then be called upon, either to admit the truth of the imputation or to deny it on oath coupled with an imprecation in these terms;
"The wrath of God be upon me, if he be a true speaker in the charge of adultery which he has cast upon me,:

if the wife takes oath the Qazi must believe her and pronounces a separation between the parties (Muhammadan Law by Mulla Para 333)

Lia'n proceedings are initiated only in cases where husband has no other evidence. once the wife refuses allegation of zina against Hadd in manner laid down in Qur'an she is completely absolved of guilt.

Imputation by the husband as to the fidelity of a chaste wife always give a woman the right to have a decree for divorce. The retraction of the imputation by the husband at any time cannot defeat the claim of the woman for a decree by divorce. This imputation as to chastity must be of free will not being influenced by any treat undue influence anger passion due to quarrel between the couple, loss of balance of mind etc. But however the wife can compromise the matter and may give up her claim to divorce. it is absolutely within the discretion of the woman.

Dissolution of Marriage using option of Puberty:

A marriage can be dissolve by woman without the aid of the court after attaining the age of puberty but before she attains the age of 18 years. It is not necessary for her to approach the court for exercise of such option, she can exercise the option otherwise. Clause (vii) of section 2 of Dissolution of Muslim Marriage Act 1939 adopts sixteen as the fixed age of puberty without an opportunity of rebuttal. This clause in fact it does deal with the option arising at puberty and the only way in which it can treasonably be interpreted is that a woman who has before the age of sixteen years been give away a marriage by her guardian is allowed to repudiate her marriage for a period of three years after she attains the age of sixteen and before she attains the age of eighteen.

A minor girl contracted in marriage retain the option of puberty upt to the age of 18 years or until she express her consent or disapprobation in express terms. In other words the right of annulment until she express terms. In other words the right of annulment of continues until she expressly ratifies the marriage say by express words or by cohabiting with the husband or by asking for her dower or maintenance.

Where a girl does not know of her marriage till she attains the age of eighteen the option of puberty may be exercise when she comes to know of the existence of her marriage and it is prolonged to such time when she comes to know that she has a right to repudiate it. She can repudiate it with a reasonable time thereafter.

How Option May be exercised?

The law does not describe any particular form or procedure for repudiation or marriage. It may be by oral words or even by conduct signifying rejection of marriage. The essence of the matter is the actual repudiation of marriage before attaining the age of 18 years by the woman. Till then the marriage remains inchoate, as it was liable to dissolution by unilateral repudiation by the woman. In other words the fact of the marriage hangs by the slender thread of unilateral option to be exercised the marriage stands dissolved. The withholding of consent may be expressed in a variety of ways. It may be indicated by the fact that without having recourse to institution of a suit for the dissolution of marriage the girl may, where there has been no consummation and provided also that she is not more than 18 years old gets remarried. It may be indicated by serving a notice on the husband through an attorney or publishing notice in the newspaper that the option of the puberty has been exercised. If the minor girl enters into a second marriage on attaining puberty, it would be sufficient of her having repudiated the earlier marriage and the subsequent marriage would be valid.By exercise of the option of puberty the marriage ceases to be a marriage and must be treated as having never taken place.

Divorce when spouses are Foreign Citizens:

Provision of Muslim family law ordinance 1961 are applicable only to Muslim citizen of Pakistan wherever they may be foreign citizen can invoke jurisdiction of civil court in terms of section 20 civil procedure code 1908 under which civil court enjoys plenary jurisdiction to entertain and try any suit if parties at the commencement of suit are residing within its local limits. Foreign citizen can also approach High Court for redress of their grievance under article 199 of the constitution. Mere fact that husband is citizen of foreign country would make no difference in respect o his right o pronounce divorce.

Divorce under Shia Law:

Requirement of valid talaq under Shia Law is that it should be pronounced in Arabic words in presence of two adult male witnesses and the wife. Under Shia Law a talaq is of no effect unlcess it is pronounced:

(i) Strictly in accordance with Sunnah
(ii) In Arabic terms
(iii) In the presence of atleast two adult male witnesses

A wakil, agent may balso be appointed for the purpose of pronouncing the Sighas in Arabic language. But the said rule does not appear to the inflexible. The husband can pronounce talaq in any other language known to him, as is done in the case of marriage, under the Shia Law. After all the physical and intellectual impediments may also provide an exception to the rule.

Re-marriage without intervening marriage:

The law previous to the enforcement of Muslim Family Law Ordinance 1961 made it obligatory of couples divorced by any mode of Talq other than talaq-i-Ahsan not to re-marry each other again unless the wife marries another man by a valid contract and he late dies or divorces her after actual consummation and she marries her first husband after the period of iddat. Before re-marriage the parties has to prove that the bar to their marriage is removed by an intermediate marriage consummation and dissolution otherwise their marriage is considered valid. In the case of divorce through khula it is not obligatory on the wife to re-marry a third person before entering into remarriage ite with her first husband. The remarriage with same husband o course would be subject to performance of another nikah. Section 7(6) also allows such reunion without “Halala” there is no restrain either in the Muslim family Laws ordinance or n the Injunction of Quran and Sunnah not to allow prayer to the husband for re-union with his wife when she is ready to lie against as wife of the husband within the limits of God.

It was held by the privy council that the children born of a remarriage where a legal bar to the marriage has not been removed were illegitimate. But as under the ordinance the mode of talaq is almost the same as that of talaq-i-ahsan statutory provision has been made that couples whose talaq has become effective in the mode prescribed by section 7 may re-marry without any intervening marriage. Except where they have been divorced thrice and the third divorce has become effective. In those cases they cannot remarry without an intervening marriage.

Effect of conversion to another faith:

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:

Provided that after such renunciation, or conversion the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2:

Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

When Husband whereabouts not known:

Notice to be served on heirs of the husband when the husband's whereabouts are not known.
In a suit to which clause (i) of section 2 applies :-
(a) the name and addresses of the persons who would have been the heirs of the husband under Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint;
(b) notice of the suit shall be served on such persons ; and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal uncle and brother of the husband, if any, shall be party even if he or they are not heirs.

Legitimacy:

Legitimacy is determined by the date of conception, not the date of birth. A child born during a marriage of its parents will be illegitimate if its begetting was prior to that marriage and also punishable by the Muhammadan Law of Crimes. English Law on other hand regards the date of birth as more important and determines legitimacy by the existence of lawful wedlock rather than by the absence of criminal intent. A child will be legitimate if it was born in lawful wedlock even though the parents were only married an hour before, it will equally be legitimate, no matter which begotten, if born within a period after the termination of the marriage. Each system has certain presumptions of evidence, more or less artificial and varying in the weight which attaches to them. The question has been discussed as to how far the English Law (as embodied in section 112 and 114 of the Evidence Act and in the entactments which in East Africa and elsewhere have been based thereon) supersedes Muhammadan Law. That it supersedes the Muhammadan Law of Evidence there is no doubt, but it has reasonably been argued that section 1 of Evidence Act itself solves the substantive law.

Difference between Muhammadan and English Law of Legitimacy:

(i) A child born during the first six hijri months (29 days each) of the marriage is illegitimate by Muhammadan Law, unless the father acknowledges it. It is legitimate by the English Law, unless the parents had no access to one to one another at any time at which it could have been begotten. Here the only real issue between the two systems is whether a husband must be saddled with paternity which he does not admit. Whether English or Muslim Law is to decide this question has never been judicially settled. But the Poulett Perage case brings the English nearer to the Muslim rule than the view embodied in the Evidence Act.

(ii) A child born after six lunar months from the date of the marriage, is conclusively legitimate by system, subject to li’an in the one, or proof of non access in the other.

(iii) After 280 days the question is entirely one of evidence. Muhammadan Law, with less advanced knowledge of embryology, has established presumptions in favour of the child for period lasting according to different doctors from ten hijri months to four years. But all these presumptions depends the conditions:-
(a) That the woman has not menstruated during that time.
(b) That she has not acknowledged the termination of her iddat.
(c) That there is no conclusive proof that the child is offspring of some other father. The circumstance for the establishment of a presumption more extravagant than English Law allows are not likely to arise. English courts have admitted the legitimacy of the child born 330 days after the last possible access of the husband. Any man may acknowledge any human being male or female to be his child, and the latter will accordingly be his legitimate child for all purposes whatsoever. This is not a legitimating still less an adoption (though it may serve as a substitute for adoption) but a declaration of legitimacy. The child acknowledges can, if he wishes repudiate the relation on attaining majority.

Acknowledgment of Paternity:

Where the paternity of a child that is his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of his conception or birth, the Muhammadan Law recognizes “acknowledgement” as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance.

The Muhammadan Law of acknowledgement of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved and established either by reason of a lawful union between the parents of the child being impossible (as in case of an incestuous intercourse or an adulterous connection), or by reason of marriage necessary to render to child legitimate being disproved. The doctrine relates only to case, where either the fact of the marriage itself or the exact time occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved. In other words the doctrine applies only to cases of uncertainty as to legitimacy and in such cases acknowledgement has its effect, but that effect always proceeds upon the assumption of the lawful union between the parents of the acknowledged child. In short the doctrine applies only to cases where either the fact or the exact time of the alleged marriage is a matter of uncertainty that is, neither proved nor disproved. Stated in another form the doctrine is limited to cases of uncertainty of legitimate descent, and proceeds entirely upon an resumption of legitimacy and the establishment of such legitimacy by the force of such acknowledgement.

Condition of Valid Acknowledgement:

In order to render acknowledgement valid and effective the following conditions must be fulfilled;-

(1) The acknowledgement must be not merely of sonship, but must be made in such a way that it shows that the acknowledgement to accept the other not only as his son, but as his legitimate son.

(2) The ages of the parties must be such as to admit of the acknowledger being the father of the person acknowledge.

(3) The person acknowledged must not be the offspring of zina, that is, adultery, incest or fornication as he would be if his mother could not possibly have been the lawful wife of the acknowledger at any time when he could have begotten, as where the mother was a that time the wife of another man or had been divorced by the acknowledger and the legal bar to remarriage had not been proved or was within prohibited degrees of the acknowledger. If the marriage is disproved the issue would be the issue of fornication.

(4) The person acknowledged must not be known to be the child of another man.

(5) The acknowledgement must not have been repudiated by the person acknowledged

Relinquishment of Dower:

The burden of proof for the payment of the dower is on the husband. He have to proof that he has paid or she has relinquished her right of dower. If Husband taking plea of relinquishment of dower by wife then heavy onus lies on him to prove execution of relinquishment deed in case its execution is denied by wife. As such, such transaction relates to financial liability. it is necessary that it should be attested by two witnesses as required under Art. 17 Qanun-e-Shahadat and also conforms to the requirement of Article 79 of the Qaunoon-e-Shahadat Order. Court may disbelieve witnesses of relinquishment of the dower claimed on the basis of affidavit.

However, the wife has full right to relinquish her right of dower in favour of husband. But she have to execute the Relinquishment Deed and have to registere before the Registrar. Otherwise the claim of the husband will not be entertained by the court.

Benefit of Marriage Received by wife:

If wife have received any benefit of the marriage from her husband then at the time of Khulla she have to return that things which may be movable or immovable property. And is such dispute arise or mentioned in the Nikahnama then court is the duty bound to frame an issue in order to ascertain whether the wife has received any benefit or marriage exercise. Injunction of Islam provides wife to seek dissolution of Marriage on the basis of khula and same is with husband's right to get back the benefits and parties are allowed to lead evidence. The court cannot come to conclusion to extent of benefit attained by wife where it has more or less been admitted that the wife has prerogative seek dissolution of marriage it must be seen bye th court the purpose for which the divorce is being sought.

The approach of the court is to be on judicious and judicial exercise of his power keeping in view the injunction of Islam. the whims and the aspiration of the wife to go astray and to have a recourse to lead undesirable and immoral life should not prevail over the conscious of court. the exercise of court is just and on coming on the view that if the spouses are unable to live in the limits of Almighty Allah then breach the matrimonial obligation by awarding khula.

while dissolution of marriage on the ground of khula the court is bound to determine terms and conditions for khula. whether dower has been paid to the wife or not and claim of maintenance however is not benefit received by wife from husband and therefore it is not returnable by the wife in the case of khula. The maintenance if the duty bound of the husband to maintain her during the substance of marriage. If amount is spent by husband or paid by him to his wife after marriage it can not be termed as benefit derived by her as consideration after her marriage. If any amount is received by the father of the wife it will also not called the benefit of wife gain from the husband.

Maintenance of Minor Child:

Father is legally and morally bound to maintain his child. one of the criteria for determining the quantum of maintenance is the income and status of the father but id does not mean that by taking total income of the father and divided it on some subjective and unknown principles, the court grant allowances on unfounded mathematical rule. court of law cannot act whimsically and in capricious manner but is supposed to find out from the evidence n record as what was he requirement of the minor for the purpose f his subsistence which meant the support of his life. Requirement included food, clothing, lodging, education, medical care and some amount for extra curricular activities of the minor etc. The family court cannot earmark a sum for his future security.

Father cannot be absolved of his liability to maintain minor daughter on excuse of his weak financial position, particularly when amount of maintenance fixed of maintenance to be paid by father to his children. The grant of maintenance of children is not ex-gratia grant but father is bound to maintain his children whether they live with mother or not. Until the child live and in the custody of the mother the father have to pay their maintenance without any excuse.

Maintenance of Breast Feeding:

Mother is entitled to maintenance for breast feeding the suckling baby for two years even after the period of iddat. However social status of the man and the level of his legitimate financial source which are imminent factor for determining of maintenance are not ignored.

It is duty of the father of pay the maintenance of his ex-wife/the mother of his child after the divorce. If there is minor suckling child then there is no limit of iddat period of maintenance. The father have to pay the maintenance of the minor child and as well as the maintenance of the mother of the child after the divorce.This is the two year time period.

Suit For Maintenance against Grand-Father:

In the absence of father, the grand father is equally responsible to look after his grand children and cater for their basic needs of necessity to make both ends meet. Grand-father a man of means and could easily maintain minor.

The grand-father is legally bound to maintain grand children who are also legal heir in property owned by him. law does not leave minor unprotected to be swayed in cruel circumstances. Therefore, the law give liability to the grand-father to look after and to pay the maintenance of the minor grand children. This is only happened if the father of the minor dies and expire then the grand father is legally bound to maintain his grand children. If the child live with the mother and father dies then grand father have to pay the maintenance of the grand children and if he fails to pay then a case against can be filed for the recovery of maintenance of his grand children and court allow these kind of maintenance.

Gujjar Law Associates : 03215294849

Advice For New Lawyers

noreply@blogger.com (Anonymous) — Sun, 08 Sep 2013 16:42:00 +0000

What’s Your Long Range Plan?

As lawyers, we are obsessed by the short term - the answers to interrogatories due tomorrow, the deposition at the end of the week, the hearing next Tuesday. But what about the long term? I don’t mean next month or even next year. I am talking about the rest of your life. What legacy do you want to leave behind? To lead a fulfilling life as a lawyer means more than meeting the next deadline. It means having dreams and living for them. If you want to take control of your life instead of letting circumstances control you, consider the following:

Start at the end. When you retire, what do you hope to have accomplished? Let’s take it a step further. After you die, how do you want to be remembered? Do you want to be remembered for billing lots of hours? For the discovery you propounded? Or do you want to be remembered for something more? People remember those who touch their lives. Do you want to affect others, touch their hearts and shape their minds? Do you want to be known for giving back to the community? For your commitment to pro bono? For winning the big case, being a mentor or writing a novel? To be remembered, you have to live a life worth remembering.

Sit down with a pen and paper and write down how you want to be remembered and what you want to be remembered for. Don’t make it long. Try to reduce it to a note card, and tape it to your computer screen or affix it to the refrigerator door. These are going to be your life goals. Always keep them close by.

Dream big. Don’t be afraid to dream big. Where do you really want to be? Don ’t ask yourself where you expect to be or where life will likely take you. Take charge of your life and direct it toward something bigger than yourself.

Develop a plan. Once you know what you want to accomplish with your life, figure out how to get there. Write out a plan of action to reach your goals. I suggest keeping a journal. On the first page, write down how you want to be remembered. On the next several pages, write out what you plan to do to be remembered that way.

Set Benchmarks. Once you have set out a roadmap to get you to your destination, set benchmarks to meet along the way. Where do you want to be twenty years from now? Ten years? Five? Map out how far along the path you want to be when you reach given stages in your life.

Decide how to reach each benchmark. Once you have decided upon short and long term goals, decide what tasks you need to perform to reach each benchmark. If you want to leave a legacy as a leader, what steps do you need to take to assume leadership roles in bar and civic associations? Set manageable goals. Put them too far out of reach and you’re setting yourself up for failure. You’re writing the script of your life. To get that happy ending, the individual acts have to be thought out and achievable.

Check off benchmarks, and make adjustments when necessary. In your journal, keep a record of your accomplishments. Did you get elected to the board of a bar association? Did you get to first chair your first trial? Write it down. Periodically, review your accomplishments and compare them against the goals you wrote down. Did you fulfill them? Did you get close? Were the goals you set realistic? Were they goals you truly wanted to pursue? You may find that the goals you set may need some adjusting. If so, reevaluate your life plan and make changes where necessary.

To make this work, you have to work on your life goals every day. Once you have set down goals for yourself, you have to work every day at achieving them. Some days, you’ll only be able to do something small -make a few calls, maybe read a couple of articles on practice development. But large or small, pluck away at it every day. Don’t lose traction and don’t lose sight of what you’re trying to accomplish.

Live your dreams. At the end of the day, all the goals and dreams in the world don’t mean a whole lot if you don’t pursue them. Live your dreams. Mark off your accomplishments and keep moving forward. Dreams are something bigger than us. They’re more than learning how to draft a motion or ague a hearing. They’re about leaving a mark on this world, making it better, changing things and shaking them up. Figure out what you really want out of life. Have you figured it out? Good. Now go do it.

Keeping Perspective:

When faced with a crisis or a tough decision, it is easy to lose your head and make a rash decision. The trick, as Kipling said, is to keep your head when all those about you are losing theirs. If you can keep your poise, when others cannot seem to keep theirs then you are showing the maturity and character you need to deal with the stress and surprises that litigation brings. Lucky for you, poise is something you can learn.

Challenge yourself. People are afraid to fail so they avoid the tough challenges. Problem with that, though, is that there is nothing surer in life than the fact that you will face tough challenges, and if you have spent a lifetime running away from them you may fall apart when you are staring one in the eye. So, as with everything else, practice makes perfect. Search out the tough cases, the challenging legal issues, the depositions no one wants to take and tackle them all. Sure, you will fall on your face from time to time, much more than if you had played it safe. But it is in the falling that you learn that you can get up again. And it is in the falling that you realize that the falling is not so bad after all.

Make a list of what is important. Sit down, take a pen and a paper and write down the three most important things in your life, that without you would be less of a person for. Your spouse? Your kids? Your faith? Is that deposition coming up on Tuesday on that list? How about the trial at the end of the month? When you are faced with a challenge at work, compare that to what really matters to you. It will help you keep perspective.

Seek help. If you are overwhelmed, do not hesitate to seek advice from others at your firm about how best to tackle a problem. There is probably someone at the office who has tackled the same problem and can tell you how you can do it too. A trick to keeping perspective is to seek the advice of those who already have it.

Take a breath. When faced with a “crisis,” take a breath, take a step back and think through your reaction. You will get through this and chances are you will get through it better if you have a game plan instead of shooting from the hip.

Have an exit strategy. When there is a fire you need to know where the emergency exits are. When a problem lands on your desk you need to figure out how to put the fire out. Sometimes you only have a few minutes to make a decision, sometimes a few hours and sometimes the luxury of days or weeks. Size up how much time you have to react, and plan an exit strategy to extricate your client from the problem at hand.

As lawyers, we are faced with problems all the time. The key is keeping perspective and staying in control so that you can control the problem and not let it control you.

Writing to a Partner:

As an associate, you will receive your share of writing assignments from the partners at your firm. Before you turn in your next assignment, consider the following advice:

Know the assignment. After a partner gives you an assignment, repeat it back to him to make sure you took it down right. Even if you did take it down right, the partner, after hearing his own words read back to him, may realize he gave you the wrong assignment. The “repeat back to me” assignment may be intimidating, but is preferable than coming back several hours later with the answer to the wrong question.

Don’t reinvent the wheel. Another associate may have addressed the very issue you were asked to research. Another associate may have written a letter to a client very similar to the one you were asked to draft. It’s worthwhile to find out whether what you are about to write has already been written. It will both save you time and help you get it right.

Think it through. You are billing the client for your time and the clock is running. It’s tempting to just jump in and start writing, thinking you’ll save the client some time and money. The fact is, though, writing this way is very inefficient. Running off to write something without thinking it through first may result in a lot effort expended but very little accomplished. Before you write, think through what you’re going to write – either in your head or on a pad – plan it out – and then start writing. The extra time spent on the front end will result in time saved in the back end.

Know your audience. Some partners like detailed memos. Some don’t. Some like memos that look like the ones they wrote when they were associates. Some could care less. Talk to other associates. Ask for memos they wrote for the partner and that the partner loved. Study those memos, not for the content but for the style, and emulate it. If you give others what they want, they will be grateful.

Make it easy to read. Partners are busy. Use plain English, get to the point and support it in as few words as possible. Consider using bullet points or charts to state the facts or make your arguments. The less time and effort the partner has to spend reading your memo, the more time and effort they will have for everything else.

There are no rough drafts. What you submit to the partner has to be perfect. Proofread it, proofread it, and proofread it again. You do not turn in rough drafts. Assume the partner will turn it over to the client and draft it accordingly.

Follow up. After you turn in your assignment, follow up with the partner. Does she need anything else? Additional research? Does she want you to revise your work? Follow up and make sure everything was done to her satisfaction.

Good writing takes time. Take the time to learn the assignment, to tailor your research, to answer the right questions and answer then in a style and manner the partner wants. Do this consistently, and your writing will get noticed.

The Pros and Cons of Being a Litigator:

Before I became a litigator, I had a lot of preconceived notions of what litigators do. Some were accurate. Most were not. Before going down the road of litigation, you need to evaluate both the pros and cons.

First, the bad news.

Litigation is adversarial. If you hate conflict, don’t expect to enjoy litigation. Your client is either suing someone or being sued. There is no love loss here. The parties often expect their attorneys to be aggressive, sometimes overly so. Expect opposing counsel to come gunning for you.

Litigation is driven by deadlines. There are deadlines for everything. Answers to interrogatories, requests for production and requests for admission. Expert reports and expert depositions. Discovery cutoffs and looming trial dates. Multiply this by 20 to 50 cases, and it’s a surprise you’re doing anything but extinguishing the next fire. Attorneys who are in short supply of case management skills may find these deadlines dictating their practices to them.

Litigation is not like television. Some of us went to law school, in part, because of popular lawyer shows - L.A. Law, The Practice or Law & Order to name a few. It looked pretty cool on television, didn’t it? But art does not always imitate life. The real practice of law is not glamorous. Most of your time is not trying high profile cases. More like it, most of your time is spent in front of your computer, doing research, drafting memos and responding to e-mails. In short, litigation may not live up to your expectations.

You never stop litigating. If you’re conscientious, it’s hard to leave the work at the office. At home, you wonder if you should have asked that extra question in deposition. When you’re out, you worry about whether the motion was filed. You even find that the conversations with your loved ones have turned into cross examinations. It’s hard to leave it at the office.

You will never know enough. It takes time to learn the practice well enough to feel comfortable in your own skin as a litigator. For some it takes 5 years. Others, 10 years. Some never reach a comfort level. It is a long process. You don’t become a litigator overnight.

A lot depends on instinct, and instinct takes time. A lot that is asked of us as litigators requires quick decisions - quick decisions at depositions, at hearings and at trials, to name a few. To make those decisions, we need to rely on our instincts, and instincts take time to develop. As a young litigator, you will second guess yourself a great deal. Only experience puts a stop to it.

Now, the good news.

There’s never a dull moment. Yes there is research to do and memos to write, but litigation is fast-paced and you will get swept up in it. You will plan how to beat the other side and you will use all your wits and heart and energy to see that plan through. All along, surprises and challenges will pop up and you will have to deal with them. It can be a bit terrifying but it certainly isn’t boring.

It’s like a good chess match. The other side wants to win. So do you. He’s making all sorts of moves to take your king, while you defend it, simultaneously trying to take his. For every move there’s a counter move, and nothing is as it seems. You like a good chess match? You’ve come to the right place.

Sometimes, it is like television. Yes, you spend an awful amount of time in front of the computer. Your office is your home away from home. But sometimes you get to venture out. Sometimes you destroy that expert in deposition. Sometimes you knock it out of the park at the hearing. And sometimes, yes sometimes, you actually get to try a case, and, get this, win. Sometimes you are Michael Kuzak from L.A. Law.

It improves with age. Like fine wine, being a lawyer improves with age. The longer you practice, the more your skills improve, the more law you learn and the more comfortable you become with the practice of law. If you get past the fear and uncertainty of the first few years, you will enjoy the fruits of your hard work.

When it comes to litigation, there are good things and there are bad things. If you can learn to enjoy the good and not linger on the bad, you may just make a career of it.

Building a Better Lawyer:

As a young lawyer, you owe it to yourself to become a better lawyer - to constantly improve your skills -whether its your writing, your research, taking a deposition or arguing a motion. With an ever more competitive work force, getting by is a sure way of falling behind. To stay ahead of the curve, consider the following suggestions to build yourself into a better lawyer.

Evaluate your strengths and weaknesses. Start by being honest with yourself. Sit down with a pad and pen, and write down a list of your strengths and a list of your weaknesses. Don’t be too hard on yourself, and don’t be too easy.

Address the weaknesses. Pick one or two of the weaknesses, and commit to working on them for the next year. Set realistic goals on how you can overcome your weaknesses and commit to achieving those goals. Is your writing just average? Set realistic goals on improving it, such as reading grammar and style books, taking a writing course or getting an article published.

Build on the strengths. Pick one or two of your strengths, and commit to making them even better. If you want to set yourself apart from other lawyers, don’t just be a strong writer, be a great writer. Don’t just be good at taking depositions, be great at taking them. Consider taking CLE classes, reading books and thinking outside the box for other opportunities.

Find a role model and emulate him. To get better, you have to find better attorneys and do what they do. Is there an attorney you admire at your firm? Does he take killer depositions? Is she a great rainmaker? Study them. What do they do that you’re not doing? Just as importantly, what don’t they do, that you’re doing? Whatever they’re doing, they’re doing something right. Figure out what that is and copy it.

Read others’ transcripts. Read the hearing and deposition transcripts of other attorneys. What do they tell the judge? How do they argue their clients’ case? What questions do they ask witnesses at depositions? What questions don’t they ask? If you want to improve your oral advocacy skills, you need to read how others do it. If you want to take a better depositions, read how others take theirs. And don’t limit yourself to reading the transcripts of just the top partners. Read the transcripts of as many attorneys you can get your hands on. Study the different styles. You can learn something from every attorney in your office. If nothing else, you can learn how not to do things and what approaches are not particularly effective.

Read others’ writings. In addition to reading others’ transcripts, read others’ writing. Read other attorneys’ briefs, memos, motions, letters to clients and other such documents. Study the attorneys’ style, word choice, the arguments they make, how they make them and ask yourself if the writing convinces you, moves you, changes you. See what works and what doesn’t, and strive to emulate what you feel works and avoid what doesn’t.

Study others’ resumes. Visit the web sites of other firms, pull up the profiles of their attorneys and study their resumes. See what they’ve accomplished. What organizations do they belong to? What have they’ve written? Where have they spoken? Attorneys’ resumes show you what goals they have achieved. Looking at others’ resumes makes you think what goals you want to set for yourself and some ideas of how to achieve them. Perhaps you can get ideas of publications that accept articles from attorneys, seminars to speak at or organizations to join.

Keep going to school. You’re never too old to learn something new. Don’t take the minimum number of CLE credits you have to take. Consider attending an extra seminar or two during the year. If you, as so many of us, don’t have the time to attend more seminars, consider listening to CLE tapes in your car.

Set goals and strive for them. Ask yourself the question, "Where do I want to be five years from now?" Do I want to be at the same firm? Do I want to be a partner at the firm? Do I want to be considered an expert in a particular field of law? Ask yourself where you want to be, devise a plan on how to get there and execute it.

Never be satisfied. Never rest. Never be complacent. Never be satisfied with what you’ve accomplished. As you stand still, others are running past you. They’re getting better as you stay the same. Eventually, they will pass you and others will pass you, and your great skills, by comparison, won’t be so great anymore. Strive for more.

Making the Most of Your Mentor:

So you’re lucky enough to have a mentor. Now what? He’s no good to you if he’s a mentor in name only. Consider the following to build a lasting, meaningful relationship with him.

Meet regularly. Make the effort to meet with your mentor on a regular basis. It’s easy for your mentor to get too busy. It’s easy for you to get too busy. Schedule regular meetings to discuss the cases you’re handling and the issues you’re tackling. Consider meeting once a month, or more, for breakfast or lunch to get together and talk.

Communicate regularly. Aside from pursuing face-to-face meetings, call and email your mentor. Email is a great way to get much-needed advice. You can send your question when you find the time and your mentor can answer it when he finds the time.

Network together. Ask your mentor to accompany you to local bar functions where, due to his years of practice, he likely will know several attendees to whom he can introduce you. With your mentor at your side, you never have to go to a bar function again and feel like you don’t know a single person in the room.

Ask your mentor the hard questions. Your mentor is worth his weight in salt because he likely can answer your hard questions. Questions about ethical dilemmas, case strategies and office politics. Ask him. His experiences makes him equipped to answer them.

Seek his wisdom. Your mentor has a lot to teach. Not only about the law and the practice, but about family, about right and wrong and about the choices life presents us. Seek out his perspective and beliefs about the big things. You may learn something more important than how to take a deposition.

Find out his life story. We are a composite of our experiences. Learn your mentor’s experiences - the life he’s lived, the challenges he’s faced and what he’s done to get to where he is. Learning what challenges he faced and how he faced them can give you insight on how to face your own.

"I’m with him." Your mentor can give you access - to corporate and bar functions, to sitting on committees and boards and to meeting the people you want to meet. For example, if you’re looking to get involved in an organization, possibly pursue a leadership position, your mentor can help you get your foot in the door.

Ask for a favor. Sometimes you’ll find yourself in a tight spot and you’ll need someone to help you out. Maybe you’re not happy at your job? He may be able to recommend you to a friend who is looking for an associate.

Repay the favor. Just as you have needs, so does your mentor. Repay the favor and help your mentor with his needs. Does he need help with an article he’s writing? With a fundraiser his firm is sponsoring? With a legal issue he’s struggling with? Your mentor will appreciate your help and will be more willing to help you the next time you ask.

Start mentoring others. As a young attorney, you may think you have not amassed enough experiences to mentor someone else. You’re wrong. If you’re a mid- level associate, mentor an entry level associate. If you’re an entry level associate, mentor a law school, college or even high school student who has a whole host of questions.

A mentor is only good if he is, well, a mentor. That takes time and commitment, on his part and on yours. Prod your mentor to do his part and do yours by helping him when he needs a hand. Because in the end, mentorship, like any relationship, is a two-way street.

Why Do I Need a Mentor?:

Everybody talks about mentoring these days. Firms have mentoring programs. Bar associations have them. And they come in all forms, including e-mentoring. But do they work? Why, you ask, do you need a mentor? The better question is how you have survived without one. What are the benefits of having a mentor? The following are a few.

You get to learn from others’ mistakes. As a young lawyer, you’re going to make your share of mistakes. Sometimes, the fear of making a mistake can be paralyzing. How do you avoid making them? Talk to a mentor who has made them and learn from his mistakes. In the practice of law, there are many potholes to fall into. Your mentor can help you steer clear of them.

Mentors take the mystery out of it. Countless times each day you will be called upon to make decisions. Sometimes, you’ll know what to do. Many times, you won’t. Usually, your mentor will. Mentors can take the mystery out of what to do and what not to do.

You get advice that works. Advice is only good if it works. Mentors can tell you what they did when confronted with the same problem. They have tested their theories, and they can tell you first hand, from their own experiences, what works and what does not.

You know someone has your back. Being a lawyer can be lonely. Sometimes you feel it’s you against the world - against the opposing party, against opposing counsel and sometimes against your own client. It’s good to have someone looking out for you, watching your back.

You learn the rules of the game. There are a lot of rules that come with being a lawyer, most unwritten. How do you find out what these rules are and how to play by them? You learn from someone who already knows them. A mentor can teach you the rules regarding such things as how to argue a motion or how to deal with opposing counsel, and he can help you comply with these rules rather than accidentally trip over them.

You have a sounding board. As young lawyers, we have a lot of questions that need to be answered. We have conflicts to resolve, problems to face and issues to address. We have ideas, sometimes based on fact, sometimes based purely on instinct, on how to confront these issues. Instead of simply trying out our hypotheses, to see if they are right or wrong, it is worthwhile to sound them off someone who has confronted the same or similar issues and can listen to your approaches, help you weigh the pros and cons and assist you in making thoughtful, rationed decisions.

You get a backstage pass. Mentors pull back the curtain and take you where the action happens. They take you to meetings with clients, conference calls to discuss strategy and access to their own thinking and reasoning. Mentors give you access to their legal worlds, where the big decision makers make the big decisions, and you’re their to witness it, experience it, learn from it.

You get connected. Mentors can help you get plugged into bar and trade associations. They can introduce you to people, get you involved in committees and assist you in your ascendancy to power.

You learn about the Firm. You want to know how your firm works -how it really works? Who does what, who expects what, what makes the partners happy and what their pet peeves are? Your mentor, someone who has been at the firm and who has seen first hand what kind of lawyers stay and which ones go, and of those who stay, which ones prosper, can provide you great insight on how to get along in the firm.

You learn how to network. To develop clients, you must develop relationships with potential clients. Before you can develop a relationship with someone, you have to meet him. How do you do that? Do you go to a trade group or bar meeting and simply walk around, stick your hand out and say hello to whomever you see? A much better approach is to go with a mentor, someone who knows that organization and the people involved. Someone who can introduce you to others and that can help you get your foot in the door.

These are just a few reasons to get a mentor. Mentors help you cut through the red tape, the self-doubt and your innumerable questions. Take the time to find a mentor and start working on a relationship that will affect, for the better, the rest of your career.

Improving Your Firm’s Writing:

What do others think about your firm? To answer that question, you must ask yourself, "What do others think about my firm’s writing?" What do judges think when your motions come across their desks? What do clients think when they read your letters and memos? Do they think how clear the writing is? How concise? How simple it is without being simplistic? Or do they think it is muddled and confusing. Do they pick out the grammatical gaffes and wonder whether they reflect not only shortcomings in your writing, but reflect a more systemic problem?

Face it. Everything your firm sends out, every motion, letter, memo and even e-mail, reflects not only upon the author but upon the firm. We are constantly being sized up, and the measure of our talents is often what we write. That being the case, we owe it to ourselves to improve not only our own writing, but the writing of each and every attorney at our firm. Nothing less will do.
But how do you get your lawyers to write better? Many think that writing is an innate talent. Either you are a good writer or you’re not, and no amount of effort can change that. Nothing could be further from the truth. Good writers are not born. They generally evolve from mediocrity. They spend hours learning the rules of good writing and hours more applying those rules to their writing. And along the way they realize that writing is a life long process and that no matter how good their writing becomes, it could always be better.

So your first job is to convince your attorneys that their writing can stand improvement. This will be hard news to break. Most lawyers take pride in their writing, some so much that they view any revisions to their work as an affront to their very person. Tell them that their writing is less than perfect and prepare for bruised egos. However, tell them you must.

It is best to institute a firm-wide writing program where attendance is mandatory by all attorneys - partners, senior associates and junior associates alike. By making everyone participate no one feels that he is being singled out for his poor writing. Furthermore, those who believe their writing is beyond reproach can feel, and will probably openly state, that their participation is wholly unnecessary. But they will be in attendance, and they, ironically, will have the most to learn from the experience.

At the first meeting, preferably a lunch meeting (free food does wonders for attendance), explain the rationale for the writing boot camp:

The writing course will improve work product. Better writing translates into a better work product, which clients will appreciate and possibly reward with additional business.

The writing course will improve thinking. Clear writing promotes clear thinking. If you can express yourself in a clear, direct manner, you will be better able to articulate your thoughts and process them, making you a more effective advocate.

The writing course will Improve efficiency. If everyone writes better, less time is spent revising documents. How much time is spent by senior associates and partners rewriting junior and mid level associate writing? If everyone’ s writing improves, less time is spent trying to make it better.

The writing course will standardize everyone’s writing style. Creating a writing program provides you an opportunity to teach your lawyers the same style rules and in so doing, makes their writing more alike. By making everyone ’s writing similar, your readers come to recognize your firm’s writing, as opposing to an individual ’s style. Furthermore, it makes revisions easier when everyone agrees what writing should look like and how it should be revised.

Once you’ve convinced your lawyers of the benefits of a writing program you have to implement one. What does a successful writing program entail? The following are some suggestions.

Discuss good writing. Explain to the attorneys what good writing is and set out three or four principles you want your lawyers to learn, emulate and live by. I suggest you want your lawyers to:
(1) write plain English
(2) say more with fewer words
(3) write in an active, direct manner
If your lawyers accomplish these three goals their writing will be as good as or better than the competition.

Purchase textbooks. Good writing starts with good grammar. Purchase a grammar book for adults, such as "Whose Grammar Book is This Anyway," written by a lawyer. And who could do without Strunk & White’s " Elements of Style." In addition to purchasing 2 to 3 grammar books for your students, purchase 1 or 2 books on style. Create a "writing" reading list, and have your attorneys read a book a month.

Discuss the textbooks. Meet once a month to discuss the book’s highlights and what the attorneys have learned from reading them. You will be amazed how many grammar and style rules you’ve forgotten, and how many you never learned in the first place.

Develop a firm style. One of the overarching goals is to create a firm "voice" or "style" to which all the attorneys subscribe too. To do so, develop a list of writing rules which most, if not all the attorneys agree should be followed. Many of these rules will be derived from the writing books you will ask your attorneys to read. Once you have all the rules, write them down and circulate them. These will be the firm’s commandments which everyone will be encouraged to follow.

Get Published. Encourage your lawyers to submit articles to newsletters, newspapers and magazines. The process of getting an article published is a great way to develop one’s writing skills. Consider making it mandatory to have all your attorneys publish at least one article a year.

Good writing is crucial to your firm’s success. Develop a plan to help your attorneys write better and get your attorneys behind it. As their writing improves, your firm’s profile will improve too and you’ll be left wondering why you waited so long to institute a writing program.

Preparing for the Deposition of the Opposing Party:

The most important deposition you will take is the deposition of the opposing party. Getting him to make the right admissions can secure your case and sink his. How do you prepare for it? Consider the following.

Learn everything you can about the opposing party. Do your due diligence and find out everything you can about the opposing party. Do a background search on him to see if he has a criminal record. Do a Google search to see if he has his own website or blog or if he is the subject of a chatroom or has been written about in an article. Do a litigation search to see if he has ever sued or been sued before. If he has, track down any depositions he gave or answers to interrogatories he signed. Do a bankruptcy search to see if he has ever filed for bankruptcy. If appropriate, get his medical, employment, IRS, social security, medicare and military records.

Get all the records and prepare a chronology. Get all the relevant records, whether they be contracts, handwritten notes, or medical records, and put them in chronological order. Then prepare a chronology summarizing these records. Put the chronology and all the records referenced in the chronology into a binder. This will help you gain an appreciation of everything that has occurred and the significance of the various events and documents.

Consider what you hope the opposing party will say. You need to go into the deposition of the opposing party as you would go into any deposition, with a plan of what you hope to get him to say. Depositions serve to gather information. But more importantly, they serve to pin down witnesses and to procure admissions favorable to your case and harmful to theirs. But before you can secure those helpful admissions, you have to decide what admissions you wish to procure. To do that, look at the jury instructions to see what you need to prove and what the other side needs to prove. Then consider what admissions you could elicit that support your position or undermining theirs.

For example, if you represent the defendant, you would try to get the plaintiff to admit to facts that show he does not meet one of the elements of the cause of action he alleges in the complaint. Alternatively, you would try to get the plaintiff to admit to facts that support one of your affirmative defenses. Whatever questions you ask, start with figuring out what you want the opposing party to say and then draft an outline that attempts to elicit that information.

Prepare a detailed outline for the deposition. After you’ve gathered all the facts and understand how the law applies to those facts and the allegations and affirmative defenses in the complaint and answer, then you’ll be prepared to draft an outline for the deposition.

Prepare your outline similar to the one you would prepare for trial. In fact, the more you think of this deposition as if it were trial, the more clear, the more concise and the more penetrating your questions will be.

Divide the outline into sections, with each section addressing a specific point or issue you want the opposing party to address. For example, you would have a section on the party’s prior litigation (if you are aware, for example, that this is his third personal injury suit).

When addressing a given topic, start with general questions, and proceed from there to asking more specific questions, until you focus on the specific issues you want the deponent to discuss. Make sure your questions are simple and only contain one fact per question. And most importantly, ask as many leading questions as possible, as you are allowed to do when deposing the opposing party. You want your questions to tell the other side the answer you are looking for and you are hoping that he will agree with you as much as possible.

When preparing for the opposing party deposition, take the time to learn everything you can about the party and about the facts and law that relate to the litigation. Once you’ve gathered and digested all this information, take the time to think through what you hope to get the other side to say and prepare an outline aimed at getting the admissions you are looking for.

How to Prepare a Case for Trial:

When should you start preparing for trial? Days before? Weeks before? The best time to start preparing for trial is at the start of the case. Start every case with the end in mind - the verdict you want - and pursue that end during every step in the litigation. You cannot assume that your case will settle. Do not prepare to settle a case. Prepare to try it. That way, if you do settle it, it will be due in part to your trial preparation. And if you do not settle it, you will be prepared to try the case and win. The following are some suggestions to keep in mind to help you achieve the results you seek at trial.

Develop a trial theme. At trial, you should have a theme around which you will present your case. The theme serves as the foundation of your case. Everything you do during the course of litigation, should build on that theme. Keep it simple and short. You should start developing your theme as early as possible. With a theme in mind, you can start thinking about what evidence you will want to introduce at trial and what evidence you will want to keep out. The theme will assist you in deciding what motions to file, what witnesses to interview, whom to depose and what to ask them to advance your theme.

During litigation, you may realize that your theme needs some tweaking or deserves to be discarded and be replaced altogether. You are better off if you realize that your theme doesn’t work early on in the case, when you have enough time to change it, than to realize it on the eve of trial, when it is too late for improvisations.

Be first. Always be a step ahead of opposing counsel. You want to be proactive and set the course of litigation. Be the first to interview witnesses, to serve written discovery, to subpoena records from third parties and take depositions. Being first often affects the outcome of litigation. The first attorney to interview witnesses can take their sworn statements and lock them into their testimony. The first to serve discovery gets a jump on obtaining records and facts to support his case. Also, by pushing your case ahead, you show the other side that you and your client are in control.

Think out of the box. What can you do differently? Look at your case from different perspectives. Be creative. Are there other causes of actions you can plead? Other defenses to raise? Are there other witnesses or other documents which may support your case? Too often, lawyers get into a rut of following the same protocol when they work on a certain type of case. Don’t fall into this trap. Whether it’s a slip and fall or breach of contract, think of new ways to approach the case.

Think your case through. When you first start a case, develop a case strategy. Figure out what you need to do to win at trial and prepare a step by step plan to achieve your goal. Developing a plan ensures that everything you do has a purpose. Without a detailed plan, you’re likely to pursue avenues and do things which do nothing to advance your case, or worse, undermine it.

Do your research. Spend some quality time in the library to research the elements of the causes of action in your case and the affirmative defenses. You need to know what each side has to prove to win his case, what discovery to pursue, what to ask witnesses in deposition and what motions to file.

Read the jury instructions. If you are plaintiff’s counsel, the jury instructions tell you what elements you have to prove to win at trial. If you are defense counsel, the instructions give you a road map to poking holes in your opponent’s case. From the beginning of the case, you need to know what the jury instructions expect you to present to a jury, so that during every step in the litigation you are gathering those facts in the interrogatories and request for production you propound, the subpoena for records you issue and in the questions you ask in depositions.

Having the facts you need to win shouldn’t be an accident. If you don’t know the jury instructions from the beginning of the case, the information you elicit which supports your case will be nothing more than coincidental. Know what you need to prove at trial and take the needed steps to elicit that information.

Have the court enter a scheduling order. Some courts enter detailed scheduling orders which spell out each phase of discovery and pre-trial deadlines. Others provide less guidance. Whether you are the plaintiff or the defendant, take steps to ensure that a detailed scheduling order is entered spelling out deadlines for expert disclosure, who discloses first, physical examinations of the plaintiff, depositions, etc.

File dispositive motions early. If you can win on summary judgment, start building your case early and file your motion as soon as it is appropriate to do so. Early analysis can help you isolate the weaknesses in your opponents case, one or more of which may be fatal.

Get your experts lined up early. Due to the expense, many clients prefer to delay the hiring of experts. However, being an ounce wise may prove to be a pound foolish. Experts can help you evaluate the strengths and weaknesses of your case and that of your opponent. An expert can help you develop your case strategy and determine what discovery to propound and what questions to ask at deposition.

Let the client know what to expect. Whether it is the cost associated with trial or what the outcome may be, make sure your client knows what to expect if the case goes to trial.

Success at trial is not an accident. It takes time and preparation, and that commitment of time and effort starts at the very inception of the case and continues through the time of trial. There are no shortcuts. Think through your case, come up with a theme and game plan and commit all your energies to seeing your goals fulfilled.

Breaking The Ice:

It won't be long until your next cocktail hour, conference or reception. There is no value to attend these by standing in a corner, clutching your drink and waiting for it to be over. They are networking events. But how do you network, you ask? How do you break the ice with total strangers? Consider the following tips:

Bring a friend. Bring someone you know with whom you can talk between mingling with others. You will feel less nervous if you have someone you know nearby. However, make it clear to your friend that the purpose of the event is to network. Don't fall into complacency and spend the entire night speaking with your friend.

Look for a friend. Odds are that you know someone at the event. When you spot her, she will likely be in a small group. Walk up, re-introduce yourself and introduce yourself to the others in the group. You have now met several new people you can get to know.

Come early. It is easier to meet new people when there are fewer people to meet. Arrive early and you will likely find a number of individuals by themselves, like you, that you can walk up to and start a conversation with.

Lines are a great place to meet people. When standing in line to get a drink or standing at the buffet table, make a point to introduce yourself to those in front and behind you.

Work the room. Make a point to make your way around the room, making an effort to speak to folks you do not know. You will find that most people at the event are there for the same reason you are - to network.

Stay engaged.When you are in a conversation, stay engaged. Do not constantly be looking over a person's shoulders in search of someone else. No one likes to feel that they are simply filling time for you while you look for someone more interesting or more important with whom to speak.

Bring business cards. Make sure you bring enough business cards to hand out. When you receive one in return make sure to study it a second and make a connection between the card and the person handing it to you. Also, to the extent you promise someone you are going to send them an article you wrote, put them in contact with someone else or provide them information, make a point to write that down on the card they hand you. It will serve as a reminder to you and it will show them that you are conscientious and plan on carrying out your promise.

Follow up with hand written notes. When you return to your office, send handwritten notes on personal stationary to the folks you met. No one writes notes anymore. They will be remembered.

With a little planning and a little effort, you can make your next networking opportunity a successful one.

Making the Most of Your Next Conference:

Before long, you will be attending a voluntary bar association conference or seminar. It will be a great networking opportunity, particularly if you consider the following advice.

Due your due diligence. Before the conference, procure a list of attendees. Reach out to everyone you know either by e-mail or preferably a handwritten note, letting them know you will be there and suggesting you meet for a meal or drinks. Breakfasts are great for networking - they give you a jump on the day and are less expensive than other meals. Leave yourself some time open for impromptu meal plans with new folks you will meet. Also, plan on meeting any existing clients in the area.

Arrive early. Flying in and out of a conference as quick as possible is not productive. Work is work, but to the extent possible, arrive before the first cocktail party and leave after the last one. The longer you are there, the more people you will meet.

Attend everything. Go to every cocktail hour, meal, special event and everything else on the agenda. Arrive early. It is easier to network when there are fewer people in the room. Also, the conference's staff will be there meeting and greeting and will introduce you to the organization's leadership. Also, arriving early does not mean you leave early. Stay until they close the bar.

Target your networking. It is important to meet as many people as possible, but you should also have a plan of meeting three to five specific individuals who will help you develop business. It may be a certain in house counsel, or someone in the organization's leadership. Figure out where they will be, find them and introduce yourself. Treat them to a meal , get to know them and lay the foundation for a long term relationship.

Always be on. Every minute you are at a conference, you have the potential of developing a relationship that may result in business for your firm. Keep that in mind with every interaction you have with everyone you meet. You should always treat everyone the same anyway, so this is good practice.

Follow up with personal notes. After you return home, look at the attendee list and circle the names of those whom you met, had meals with or goofed off with (yes, occasionally playing hooky with another attendee may from the basis of a lasting personal friendship and business relationship). Write them handwritten notes and invite them to look you up if they are ever in town.

Conferences are a great way to develop lasting relationships that may result in referrals. It just takes a little planning to make the most of them.

Making Things Right When Things Go Wrong:

I hate to tell you this, but as a new attorney, you will make mistakes. In fact, you will make your share of them. No matter how smart you are, or how well your firm trains you, or how closely you are supervised, you will do something wrong from time to time. When you do, its your job to right the wrong. You do that by doing the following:

Don’t brush it under the rug. When you make a mistake it is tempting to hide it from the partner’s view in hopes that it never gets discovered. Don’t ever submit to this temptation. Not only is it dishonest, it can make a small problem into a great big one. That mistake you made today may be one that can be addressed and rectified today. Ignore it, however, and it may grow, and infect the entire case, and the day may come when it’s too late to rectify it. Like a cancer, if diagnosed and treated early, a mistake is often treatable. If ignored, it may grow and spread and damage everything in its path.

Size up the situation. Was a mistake really made, or do you simply think you made one? Before blaming yourself, think through whether a mistake was made at all. If you did make a mistake, consider how big of a mistake it really is. That mountain you’re worried about may only be a molehill. Generally panic sets in when you make a mistake, your imagination gets the best of you and you start planning what life will be like after you get fired. Stop, take a deep breath and rest assured that things will work out. Even if it turns out your mistake was a big one, know that things still will work out.

Think through solutions on how to rectify your mistake. There are few mistakes that cannot be undone. Think through the various options that are available to help you clean up any mess you may have created. This is the time to speak to your mentor at the firm and seek his guidance on how to make things right. Also, it may take more than simply thinking or talking through the problem to come up with an answer. You may have to do some research to find the answer you are looking for.

Your boss gives you assignments to take problems off his plate and give them to you. When you make a mistake, you have managed to not only give him back the problem he gave you, you have managed to make it bigger. The least you can do is come up with a game plan to resolve the new problem you created.

Discuss how best to rectify the mistake. After you’ve presented the partner your proposed solution to your mistake, talk through how best to address the problem. Again, the partner may not think the problem is a major one. Conversely, he may think it is much worse than you think it is. Either way, you need to have a heart to heart to come up with a solution.

Learn from the mistake. Whether it is a big or small mistake, learn as much as you can from it. Maybe you need to learn to take more time when researching an issue. Perhaps you have to learn to probe more deeply in deposition. Whatever the lesson is, take it to heart and learn from it.

Maturity as a lawyer is owning up to your mistakes, figuring out how to deal with them and letting your boss know about the mess you got him into and how you plan on getting him out of it.

How to Prepare for a Hearing in Courts:

Don’t rehash the papers. The judge and her law clerks have read the motions, responses and replies, have read and dissected the cases cited in them and have likely done their own research and have uncovered additional cases. Therefore, don’t start by rehashing what you said in the papers. You’ll bore the judge, and possibly insult her by implying that she has not read what you wrote.

Focus on your theme. Instead of summarizing what you said in your papers, pick out the theme you emphasized in those papers and make that the centerpiece of your argument. If you can’t reduce your argument to a simple theme that explains why you should win, then recouch your argument until you can.

Practice your argument out loud. After you have prepared an outline of your argument, and you have organized all the documents and cases you will be referencing throughout the hearing, close the door to your office, and practice your argument out loud, not just once but three times. In the process of doing this, you will hear for yourself what parts of your arguments work and which parts don’t, and you can make the necessary adjustments.

Be prepared to be interrupted. Treat the hearing like you would an appellate court hearing. The judge is having a hearing as much to allow you to present your arguments as to have her questions answered. When preparing for the hearing, think about the questions you would ask about the facts and the law if you were the judge, and have short, direct answers prepared for those questions.

Keep your composure. There is something about standing before a federal court judge, in her large courtroom, with her federal clerks and assistants sitting nearby. It can be enough to cause the words to choke in your throat. To get over the anxiety, make a point to accompany another attorney from your office to a hearing he is having in federal court, preferably a hearing in front of the same judge before whom you will be arguing. Watch how he presents himself, the arguments he makes and how he answers questions. After the hearing is over, quiz him about how he prepared and why he said what he said and why he made the arguments he made. This reconnaissance will take the edge off the anxiety.

Be prepared and be courteous. All judges expect that the attorneys who appear before them be prepared, professional and courteous. This is particularly true of federal court judges. To meet these expectations, have a hearing binder prepared with an outline of your arguments, annotated to the exhibits and cases that support those arguments, with copies of those exhibits and cases in your binder. Having everything in one place, organized and well thought out, as opposed to combing through a messy file, shows that you are prepared.

In addition to being prepared, be courteous. No matter how opposing counsel behaves, whether he interrupts you, or even insults you, never succumb to his level, however tempting. Don’t take the bait.

Arguing motions in federal court can be nerve racking. To alleviate your fears, do everything you can to prepare, take a deep breath and do the best you can.

The Power of Sound Bites:

If you want to master the art of persuasion, you must master the art of the sound bite. Politicians do it. Advertisers do it. Motivational speakers do it. They understand to boil down their ideas into catchy phrases and use them as a form of shorthand to catch and keep their audiences’ attention. Speak all you want, but most of what you say will be forgotten. To say something that will be remembered and that will influence, find a way to reduce it to a sound bite. Think about the printed ads, television commercials and speeches that have stuck with you. I bet what you remember are the catch phrases. They hook you and reel you in.

So when you are pursuing clients and convincing them to go with you instead of the competition, you need to think through how you can serve their needs. How your company is different. Why it serves their best interest to go with you. Write down the answers to all these questions. Then think about reducing your answers to several themes - central ideas reflecting why prospective clients need you. Once you do this, reduce those themes to sounds bites - one or more catch phrases that reflect the essence of your company and its ideals - phrases that resonate and that will stick in the minds of your audience. Just a few words - the right ones - can make the difference between pitching and selling - between talking and closing.

Where do you come up with sound bites? They are all around you. They are in the articles you read, they are in the lyrics you listen to and they are in the movies and television shows you watch. Train yourself to look out for them and start incorporating them into your selling. You will discover that with them, your power of persuasion will improve significantly.

GOOD LUCK

Court Marriage Laws

noreply@blogger.com (Anonymous) — Sun, 08 Sep 2013 15:52:00 +0000

Court Marriage Laws

If the male and female is get married in the court with the permission of the court without the permission of wali / parents this is called court marriage. Generally those couple comes in the court for the marriage whose parents don’t want their daughter to get marriage with that guy with whom their daughter loves him and want to marry at any cost. Therefore in the absence of the consent of parents of the couples especially the parents of the girl when forbade their girl to marry the specific guy than it happened. Sometimes when the girl contracted the marriage without the permission and consent of the parents, they lodge the false FIR for abduction of the girl and committing the zina against the newly husband of their daughter and his family for creating harassment and sometime get divorce forcibly. However on the statement of the girl the FIR is quashed accordingly.
The constitution of Pakistan, the law of land, Islam and Muslim Family Law allow to every adult person to get marry on his/her own choice, accord and freewill. The Superior Courts called that girl sui juirs and accepted their marriage without the consent of parents. And the Courts have accepted the minimum age 16 of the girl for marriage and hold that 16 years girl and above is capable to contract her marriage as per her own wish, freewill and consent.

For the purpose of Court marriage the girl have to appear in the court and have to give statement in the court before the Magistrate /Oath Commissioner / Justice of Peace etc. that she is going to marry with her own choice, freewill and accord, she is major, adult, and without no use of intoxicant she is deposing and no one has abducted, kidnapped. Thereafter the marriage is solemnized as per religious procedure. If the couples are Muslims then Nikahkhawan/Qazi solemnize the marriage in the presence of witnesses, if the couples are Christian then the father/padri solemnize the marriage if the couple are Hindu or any other community then the marriage is solemnized as per their religious way. After this the couples are allowed to go their homes and thereafter the said marriage certificate /Nikahnama is registered in the concern authority and return to the couple.

Legal Advice

noreply@blogger.com (Anonymous) — Sun, 08 Sep 2013 13:37:00 +0000

Gujjar Law Associates is Leading Law Services Providing Firm in Rawalpindi / Islamabad and We have a team of Expert and Experience Lawyers for Providing our Quality Services to People and Firms / Companies in Rawalpindi / Islamabad. We are Providing Services of Advocacy and Legal Advisory on all type of Legal and Law Matters in Courts and Outside the Courts in Rawalpindi and Islamabad.

Gujjar Law Associates Provide complete law services on Family, Divorce, Khula, Separation, Court Marriage, Child Custody, Adoption, Guardianship, Maintenance, Alimony, Dower Amount, Dowry Articles, Succession Certificate, Letter of Administration, Transfer of Property, Estate Law, Lease, Sale Deed, Commercial and Business Law, Corporate Law, Registration of Firm, Partnership and Company, Trademark, Copyright, Civil Law, Injunctions, Recovery, Damages, Defamation, High Court Appeals, Writ Petitions and Habeas Corpus Petitions etc.

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Divorce by Text Message

Kidnapping or Abduction or Force Labour under Pakistan Penal Code

Assault or Criminal Force under Pakistan Penal Code

Wrongful Confinement under Sec.345 of Pakistan Penal Code

Hurt and Injuries Under Sec.337 of Pakistan Penal Code

Attempt to Commit Qatl and Attempt to Commit Suicide Under PPC

Murder (Qatl) Offences Affecting the Human Body under PPC

Offences Relating Religion,Holy Prophet,Holy Quran and Obscene

Rioting under Pakistan Penal Code

Sec.109 of Pakistan Penal Code Punishment of Abetment

Pictures of Lawyers Movement for Independence of Judiciary in Pakistan

Judicial Process of Pakistani Courts

Pakistan Penal Code ( PPC ) in Short

Section 4

Section 53.

The punishments to which offenders are liable under the provisions of this Code are:

First, Qisas;

Second, Diyat;

Third, Arsh (Pre-specified Compensation);

Fourth, Daman (Compensation determined by court to be paid by the offender to the victim for causing hurt not liable to Arsh);

Fifth, Ta'zir;

Sixth, Death;

Seventh, Imprisonment for life;

Eighth, Imprisonment which is of two descriptions, namely:-

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

2. Simple;

Ninth, Forfeiture of property;

Tenth, Fine

Important Sections which are commonly used in daily prosecution:

Pakistan Penal Code (Sec.121 to 171)

THE PAKISTAN PENAL CODE

(ACT NO. XLV OF 1860)

CHAPTER VI

OF OFFENCES AGAINST THE STATE

CHAPTER VII

OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR FORCE

CHAPTER VIII

OF OFFENCES AGAINST THE PUBLIC TRANQUILITY

CHAPTER IX

OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS

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The Offence of Zina (ENFORCEMENT OF HUDOOD) Ordinance

An Ordinance to bring in conformity with the injunctions of Islam the law relating to the Offence of' Zina.

Preamble:

1. Short title, extent and commencement:

(1) This Ordinance may be called the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

(2) It extends to the whole of Pakistan;

(3) It shall come into force on the twelfth day of Rabi-ul-Awwal, 1399 Hijri, that is, the tenth day of February, 1979.2.

Definitions:

In this Ordinance, unless there is anything repugnant in the subject or context,-

(a)"adult"means a person who has attained, being a male, the age of eighteen years or,being a female, the age of sixteen years, or has attained puberty;

(b) "hadd" means punishment ordained by the Holy Qur'an or Sunnah ;

(c) "marriage" means marriage which is not void according to the personal law of the parties, and "married" shall be construed accordingly ;

(d) "muhsan" means"

(i) A Muslim adult man who is not insane and has had sexual intercourse with a Muslim adult who, at the time he had sexual intercourse with her, was married to him and was not insane; or

(ii) a Muslim adult woman who is not insane and has had sexual intercourse with a Muslim adult man, who at the time she had sexual intercourse with him, was married to her and was not insane; and

(e) "tazir" means any punishment other than hadd, and all other terms and expressions not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code(Act XLV of 1860), or the Code of Criminal Procedure, 1898 (Act, V of 1898).

3. Ordinance to override other laws:

The provisions of this Ordinance shall have effect not withstanding anything contained in any other law for the time being in force.

4. Zina:

A man and a woman are said to commit zina if they willfully have sexual intercourse without being validly married to each other.

5. Zina liable to hadd :

(1) Zina is zina libale to hadd if:

(a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married ; or

(b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be, married.

(2) Whoever is guilty of zina liable to hadd shall, subject to the provisions of this Ordinance,—

(a) if he or she is a muhsan, be stoned to death at a public place; or

(b) if he or she is not a mushan, be punished, at a public place, with whipping numbering one hundred stripes.

6. Zina-Bil-Jabr:

(1) A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely :

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Partnership Deeds, Power of Attorney,Affidavits,Domiciles.